Constitutional Law Commons^™

Sexualization, Sex Discrimination, And Public School Dress Codes, Meredith Johnson Harbach

University of Richmond Law Review

This essay joins the conversation about sexualization, sex discrimination, and public school dress codes to situate current debates within in the broader cultural and legal landscapes in which they exist. My aim is not to answer definitively the questions I pose above. Rather, I ground the controversy in these broader contexts in order to better understand the stakes and to glean insights into how schools, students, and communities might better navigate dress code debates.

Using Johnson V. United States To Reframe Retroactivity For Second Or Successive Collateral Challenges, Thomas H. Gabay

Fordham Law Review

The Armed Career Criminal Act (ACCA) provides a fifteen-year mandatory minimum sentence in federal prison for persons with at least three prior “violent felony” convictions who are subsequently convicted of being in possession of a firearm. In Johnson v. United States, the U.S. Supreme Court struck down one portion of this statute on the ground that it was unconstitutionally vague. In addition to an enumerated list of “violent felonies” that can result in a conviction, this portion included a catchall category that defined a violent felony as a crime that “otherwise involves conduct that presents a serious potential risk …

Containing The Uncontainable: Drawing Rico’S Border With The Presumption Against Extraterritoriality, Miranda Lievsay

Fordham Law Review

In Morrison v. National Australia Bank Ltd., the Supreme Court created a two-step test governing the extraterritorial reach of all federal statutes, radically altering the application of U.S. laws. Nowhere has this decision caused more upheaval than in the context of analyzing claims under the Racketeering Influenced and Corrupt Organizations Act (RICO). While courts widely agree that RICO does not apply extraterritorially, courts vehemently disagree about the proper standard to determine when a RICO case is appropriately domestic or impermissibly foreign. This Note explores RICO’s origins, its legislative history, and the evolution of its extraterritorial application in Morrison’s …

The New Tate Letter: Foreign Official Immunity And The Case For A Statutory Fix, Luke Ryan

Fordham Law Review

Plaintiffs sometimes bring civil lawsuits in U.S. federal courts against officials or ex-officials of foreign governments accused of committing atrocities abroad. In these types of cases, the foreign individuals will almost certainly invoke the affirmative defense of foreign official immunity. In the 2010 decision, Samantar v. Yousuf, the Supreme Court unanimously held that the Foreign Sovereign Immunities Act (FSIA)—a 1976 statute governing the immunity of foreign states—did not control judicial determination of a foreign individual’s request for immunity. Instead, the Court said that foreign officials may be entitled to immunity as a matter of federal common law. Because of …

Is The Constitution Special?, Christopher Serkin, Nelson Tebbe

Vanderbilt Law School Faculty Publications

"[W]e must never forget, that it is a constitution we are expounding.” If there was such a danger when Chief Justice John Marshall wrote those words, there is none today. Americans regularly assume that the Constitution is special, and legal professionals treat it differently from other sources of law. But what if that is wrongheaded? In this Article, we identify and question the professional practice of constitutional exceptionalism. First, we show that standard arguments from text, structure, and history work differently in constitutional law. Second, we examine the possible justifications for such distinctive interpretation among lawyers, and we find them …

Submission On Specific Aspects Of The Elected Presidency, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

This submission, to which minor redactions have been made, was prepared in response to a call for public feedback (archived here) by the Constitutional Commission to study and make recommendations on specific aspects of the Elected Presidency chaired by the Honourable Chief Justice Sundaresh Menon.

New Approaches To The Constitutional Guarantee Of Equality Before The Law: 'Lim Meng Suang V Attorney-General' [2015] 1 Slr 26 (Ca); [2013] 3 Slr 118 (Hc): 'Tan Eng Hong V Attorney-General' [2013] 4 Slr 1059 (Hc); [2012] 4 Slr 476 (Ca), Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

In a recent series of challenges to s 377A of the Penal Code (Cap 224, 2008 Rev Ed), the courts have developed the jurisprudence on review of legislation under Art 12(1) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) ("the Constitution"). Both the High Court and the Court of Appeal set a very high (but not insurmountable) threshold, but each did so in a different manner due to differing conceptions of equality. A critical examination of both approaches shows that the courts' conclusions are ultimately defensible more as a means of disposing of the instant …

Salvaging "Safe Spaces": Toward Model Standards For Lgbtq Youth-Serving Professionals Encountering Law Enforcement, Brendan M. Conner

Faculty Publications

No abstract provided.

Plea Bargain Negotiations: Defining Competence Beyond Lafler And Frye, Cynthia Alkon

Faculty Scholarship

In the companion cases of Lafler v. Cooper and Missouri v. Frye the U.S. Supreme Court held that there is a right to effective assistance of counsel during plea bargaining. However, the Court defined effective assistance of counsel in only one narrow phase of plea bargaining: the client counseling phase. The Court said it would not look more broadly at the negotiation process itself as "[b]argaining is, by its nature, defined to a substantial degree by personal style.” This statement indicates that the Court does not fully understanding developments in the field of negotiation over the last thirty years. Negotiation …

Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert

Articles

The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.

In particular, I …

The Impact Of Pacific Lutheran On Collective Bargaining At Catholic Colleges And Universities, Maryann Parker, Saerom Park

Journal of Collective Bargaining in the Academy

In 1979, the Supreme Court found that teachers at a Catholic parochial school were exempt from the National Labor Relations Act (NLRA) because of First Amendment religious infringement risks. Subsequently, the National Labor Relations Board (NLRB) has faced controversy over its efforts to delineate an appropriate test for the religious exemption in the higher education context. This uncertainty over the NLRB’s test has resulted in time-consuming litigation and hampered faculty’s ability to organize at schools where Board jurisdiction would not present a significant risk of First Amendment infringement. This paper argues that the Board’s recent decision in Pacific Lutheran University …

Virgil Hawkins: Educator & Civil Rights Activist, Hardaway Law Firm, Virgil Hawkins Historical Society, Virgil Hawkins Bar Association Of Polk County, Black Filmmakers Of Central Florida, Kathleen High School Video And Tv Production Team, Alpha Phi Alpha Fraternity, Inc. Mu Zeta Lambda Chapter

Oral Histories, Presentations, and Videos

Virgil Darnell Hawkins was an African-American trailblazer. Through and by way of his unrelenting effort to become a Florida lawyer, the Jim Crow laws, that once kept Florida's African Americans from attending the white public universities and colleges, were eventually abolished. This paved the way for the end of discrimination in Florida's schools of higher learning and opened the way for African Americans to attend state universities and colleges.

This program and presentation honor Mr. Virgil Darnell Hawkins.

February 27, 2016: Democratic Experimentalism And The Other Beginning, Bruce Ledewitz

Hallowed Secularism

Blog post, “Democratic Experimentalism and the Other Beginning“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Who Gets To Determine If You Need Self Defense?: Heller And Mcdonald's Application Outside The House, Elizabeth Beaman

Seton Hall Circuit Review

No abstract provided.

The Federal Government's Usurpation Of Local Control From Public Schools: A Historical Analysis Of Politics, Law, And Reaction, Brett Geier

Barry Law Review

No abstract provided.

Tyson Foods, Inc. V. Bouaphakeo: The Use Of Statistical Evidence In Class Actions, Wenbo Zhang

Duke Journal of Constitutional Law & Public Policy Sidebar

Statistical analysis potentially plays an important role in class-action litigation, but the use of such evidence is limited at the class-certification stage of such suits. This Commentary previews an upcoming Supreme Court case that deals with the question of whether inferential evidence may be used to certify a class in a class-action lawsuit. Because this case deals with a violation of a duty, imposed by statute, on the defendant, this Commentary argues that under existing precedent, inferential statistical evidence is appropriate for determining the question of class-certification.

The Young And The Redemptionless? Juvenile Offenders Before Miller V. Alabama, Katherine Johnson

Duke Journal of Constitutional Law & Public Policy Sidebar

The Eighth Amendment to the U.S. Constitution prohibits excessive criminal sanctions, and the Supreme Court has held that this provision has special application in situations dealing with juvenile offenders. This Commentary looks at the recent Supreme Court case of Montgomery v. Louisiana, in which the Court held that there was a constititutional prohibition of life sentences without parole for juvenile offenders. This Commentary argues that this is the correct result under the Court’s Eighth Amendment jurisprudence but that the Court should also have held that the sole remedy for such constitutional violations is resentencing.

Foster V. Chatman: Clarifying The Batson Test For Discriminatory Peremptory Strikes, Meghan Daly

Duke Journal of Constitutional Law & Public Policy Sidebar

Historically, peremptory challenges were thought necessary to ensure fair and impartial juries, but the tactic has also been widely used by prosecutors for racially discriminatory purposes. This Commentary previews an upcoming Supreme Court case, Foster v. Chatman, that deals with alleged discriminatory peremptory challenges which led to striking all black jurors from a jury trial. Even though the prosecution had offered race-neutral reasons for those strikes, this Commentary argues that the evidence shows that the underlying rational was, in reality, racial discrimination. For that reason, this Commentary argues that the Court should find this case to fall under the …

A Power Struggle: Demand Response And The Limits Of Ferc’S Authority, Adrien Dumoulin-Smith, Geoffrey Wright

Duke Journal of Constitutional Law & Public Policy Sidebar

This Commentary details a recent Supreme Court case which dealt with the question of the extent of a federal agency’s authority to regulate retail markets for electric power or whether the agency was restricted only to regulation of wholesale markets. In this case, the Court held that the federal agency had jurisdiction over wholesale markets, regardless of the impact in retail markets. This Commentary argues that the Court reached the correct result as a matter of statutory interpretation but also argues that the Court was insufficiently deferential to the agency in interpreting the extent of that agency’s jurisdiction under the …

Newsroom: Yelnosky On Passing Of Justice Scalia 02-24-2016, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

A Constitutional Right To Discovery? Creating And Reinforcing Due Process Norms Through The Procedural Laboratory Of Arbitration, Imre Stephen Szalai

Pepperdine Dispute Resolution Law Journal

This article explores an overlooked dynamic between arbitration and the more formal court system. As developed in more detail below, this article's thesis is that arbitration can help define and reinforce due process norms applicable in court, and a due process-like norm regarding discovery is beginning to develop. Courts often review arbitration agreements for fairness, and through this judicial review, courts have developed a body of law discussing and defining whether certain procedures (or the lack thereof) violate fairness norms in connection with the resolution of a particular dispute. Through this body of law exploring procedural fairness, one can identify …

February 21, 2016: So How Come Trump Is Still Around?, Bruce Ledewitz

Hallowed Secularism

Blog post, “So How Come Trump is Still Around?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Thomas A. Bowden, Petitioner V. Steve Meinberg, Et Al., Respondents: Petition For A Writ Of Certiorari, Patricia E. Roberts, Tillman J. Breckenridge

Appellate and Supreme Court Clinic

No abstract provided.

Newsroom: Margulies On Apple V. Fbi Standoff 02-18-2016, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Democratic Dissolution: Radical Experimentation In State Takeovers Of Local Governments, Michelle Wilde-Anderson

Fordham Urban Law Journal

While state interventions to stabilize the finances of struggling municipalities date back to the Great Depression, the current fiscal crisis has brought a startling escalation in the powers granted to state intervention authorities. Aptly observed by Abby Goodnough in The New York Times, cities and states have tried “myriad ways of righting their fiscal ships as the recession plods on,” but until very recently, “locking the mayor out of City Hall [was] generally not one of them.” In 2010 and 2011, Michigan and Rhode Island, which have been watched closely by other states, dramatically reformed their laws governing state receiverships …

Padilla V. Kentucky: Sound And Fury, Or Transformative Impact, Steven Zeidman

Fordham Urban Law Journal

No abstract provided.

Realizing Padilla’S Promise: Ensuring Noncitizen Defendants Are Advised Of The Immigration Consequences Of A Criminal Conviction, Yolanda Vàzquez

Fordham Urban Law Journal

No abstract provided.

The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi

Northwestern University Law Review

Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines—the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly …

Will The Real Lawmakers Please Stand Up: Congressional Standing In Instances Of Presidential Nonenforcement, Bethany R. Pickett

Northwestern University Law Review

The Take Care Clause obligates the President to enforce the law. Yet increasingly, presidents use nonenforcement to unilaterally waive legislative provisions to serve their executive policy goals. In doing so, the President’s inaction takes the practical form of a congressional repeal—a task that is solely reserved for Congress under the Constitution. Presidential nonenforcement therefore usurps Congress’s unique responsibility in setting the national policy agenda.

This Note addresses whether Congress has standing to sue in instances of presidential nonenforcement to realign and reaffirm Congress’s unique legislative role. In answering this question, this Note examines legislative standing precedent and argues that the …

Opinions I Should Have Written, Judge Nancy Gertner (Ret.)

Northwestern University Law Review

In 1991, the Chicago law firm of Pope & John Ltd. established a lecture series at Northwestern University School of Law. The Pope & John Lecture on Professionalism focuses on the many dimensions of a lawyer’s professional responsibility, including legal ethics, public service, professional civility, pro bono representation, and standards of conduct. The Northwestern University Law Review is pleased to present the November 12, 2014 Pope & John Lecture by Judge Nancy Gertner.