Constitutional Law Commons^™

Model Or Anti-Model? U.S. Regulatory Takings Doctrine In Foreign Jurisdictions, Melanie Benesh

Cardozo Journal of International and Comparative Law

Canada and Australia have taken a different approach to regulatory takings than Peru, despite some similarities among the countries. Like Peru, Canada and Australia both have IIAs with the United States. Like Peru, both have also addressed regulatory takings issues in their domestic jurisprudence since signing those IIAs. And like Peru, both Canada and Australia have looked to U.S. regulatory takings doctrine while developing their own domestic jurisprudence. However, unlike Peru, Canada and Australia have both ultimately decided that the U.S. regulatory takings doctrine would not be viable in their constitutional and political systems. They view U.S. regulatory takings doctrine …

Expanding Standing To Develop Democracy: Third Party Public Interest Standing As A Tool For Emerging Democracies, Aparna Polavarapu

Scholarly Works

No abstract provided.

Shrinking The Post-Plenary Power Problem, Michael Kagan

Scholarly Works

In this essay, Professor Michael Kagan responds to Professor Matthew J. Lindsay's article, Disaggregating “Immigration Law.” Professor Kagan posits a majority of Supreme Court justices appear to be at least occasionally uneasy with the plenary power doctrine that has shaped immigration law since the Chinese Exclusion Case, but they are not all sure how to live without it either. He argues so long as this remains the case, the Court’s immigration jurisprudence is likely to be incrementally favorable to immigrants on the whole, but tentative, inconsistent, and incoherent in some important ways. He concludes the importance of Professor Lindsay’s intervention …

James Wilson In The State House Yard: Ratifying The Structures Of Popular Sovereignty, Ian C. Bartrum

Scholarly Works

There is an excellent (and rapidly growing) literature examining the influence of James Wilson's Scottish philosophical education on his later political ideas. In this Article, Professor Ian Bartrum makes two contributions to that scholarship. First, he reexamines several of the most important Scottish moral sentimentalists with a particular focus on the specific ontological and epistemological accounts that influenced Wilson. Second, he dissolves the seeming contradictions in Wilson's political thought by showing that, while he understood that representative bodies were essential to legitimate government, he nonetheless distrusted these institutions because they work to obscure, or even subvert, their members' individual experience …

When Immigrants Speak: The Precarious Status Of Non-Citizen Speech Under The First Amendment, Michael Kagan

Scholarly Works

The legal protection of free speech for immigrants in the United States is surprisingly limited, and it may be under more threat than is commonly understood. Although many unauthorized immigrants have become politically active in campaigning for immigration reform, their ability to speak out publicly may depend more on political discretion than on the Constitutional protections that we normally take for granted. Potential threats to immigrant free speech may be seen in three areas of law. First, a broad claim has been made by the Department of Justice that immigrants who have not been legally admitted to the country have …

Political Dysfunction And The Election Of Donald Trump: Problems Of The U.S. Constitution's Presidency, David Orentlicher

Scholarly Works

In this article, Professor Orentlicher examines the Constitution's design for the executive branch. He argues that by opting for a single executive rather than a multi-person executive, the Constitution causes two serious problems-it fuels the high levels of partisan polarization that we see today, and it increases the likelihood of misguided presidential decision making. Drawing on the experience in other countries with executive power shared by multiple officials, he proposes a bipartisan executive.

Off-Label Drug Marketing, The First Amendment, And Federalism, David Orentlicher

Scholarly Works

In this article, Professor Orentlicher explores free speech and federalism issues arising from FDA regulation of off-label uses and off-label marketing of drugs. In light of the FDA's desire to respect state government authority, together with other considerations discussed in this article, he argues for the rejection of the analysis of the Caronia court and to give the FDA significant leeway in its regulation of off-label marketing.

A Tale Of Two Cases, Paul J. Larkin Jr.

Washington and Lee Law Review

No abstract provided.

A Curious Call For More Judicial Activism: Comment On Alexandra Klein's "The Freedom To Pursue A Common Calling", Mark Rush

Washington and Lee Law Review

No abstract provided.

Unraveling The Law Of War, Stephen J. Ellmann

Articles & Chapters

No abstract provided.

Why Coywolf Goes To Court, Signa A. Daum Shanks

Articles & Book Chapters

This article is an effort influenced by previous works considered part of "trickster" discourse. But unlike other trickster stories meant to illustrate First Nations’ contents and processes, this presentation creates a Métis-specific example of trickster methodology and knowledge. Similar to the historic role Métis individuals have had in Canadian history, this effort contains a type of "translator" system within its citations so that the main story parallels information about trends in Canadian legal analysis. By having this format, it is hoped that those less familiar with Métis courtroom struggles will gain insight into how the pursuit of Métis constitutionalism both …

Confirming Judges In The 2016 Senate Lame Duck Session, Carl W. Tobias

Law Faculty Publications

In this piece, Professor Carl Tobias descriptively scrutinizes the nomination and confirmation regimes throughout the administration of President Barack Obama. The article critically evaluates selection finding that persistent Republican Senate obstruction resulted in the greatest number of unoccupied posts for the longest duration, briefly moderated by the 2013 detonation of the “nuclear option,” which constricted filibusters. Nevertheless, the article contends when the Grand Old Party (GOP) attained a chamber majority, Republicans dramatically slowed the nomination and confirmation processes after January 2015. Therefore, openings surpassed ninety before Congress is scheduled to reassemble. Because this dilemma erodes rapid, inexpensive, and equitable disposition, …

Fisher’S Cautionary Tale And The Urgent Need For Equal Access To An Excellent Education, Kimberly J. Robinson

Law Faculty Publications

In this Comment, I argue that much greater care and attention must be paid to the educational opportunity gaps and resulting achievement gaps that prompt many colleges and universities to rely on affirmative action. Increased attention to greater equality and excellence in elementary and secondary education can help reduce or eliminate the need for affirmative action, which is an approach that fundamentally aims to ensure equality. Without additional attention to closing opportunity gaps, the Court may declare that the time has come for affirmative action to end, but the United States will not be equipped to maintain diverse, selective postsecondary …

On The Uneven Journey To Constitutional Redemption: The Malaysian Judiciary And Constitutional Politics, Yvonne Tew

Georgetown Law Faculty Publications and Other Works

This article explores the Malaysian judiciary’s approach toward interpreting the Federal Constitution of Malaysia and situates it within the context of the nation’s political and constitutional history. It traces the judiciary’s tentative movement toward a more rights-oriented approach followed by its more recent retreat in several appellate court decisions. This article argues that the Malaysian courts’ journey toward constitutional redemption has been uneven so far. In order to reclaim its constitutional position as a co-equal branch of government, the Malaysian judiciary must exhibit greater willingness to assert its commitment to constitutional supremacy and the rule of law.

Meyer, Pierce, And The History Of The Entire Human Race: Barbarism, Social Progress, And (The Fall And Rise Of) Parental Rights, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

Long before the Supreme Court’s seminal parenting cases took a due process Lochnerian turn, American courts had been working to fashion family law doctrine on the premise that parents are only entrusted with custody of the child, and then only as long as they meet their fiduciary duty to take proper care of the child. With its progressive, anti-patriarchal orientation, this jurisprudence was in part a creature of its time, reflecting the evolutionary biases of the emerging fields of sociology, anthropology, and legal ethnohistory. In short, the courts embraced the new, “scientific” view that social “progress” entails the decline and, …

Foreword: Why Popular Sovereignty Requires The Due Process Of Law To Challenge "Irrational Or Arbitrary" Statutes, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

So-called “substantive due process” has long been criticized progressives and conservatives as a contradictory interpretation of the Due Process Clauses, and one that undermines the popular sovereignty of We the People to govern themselves. In this Foreword, I explain why an individual conception of We the People, leads to a “republican” conception of popular sovereignty that requires a neutral magistrate to adjudicate whether a statute restricting the liberties of the We the People is within the just powers of a legislature to enact. Because a measure that is ultra vires is not truly “a law,” enforcing it against a fellow …

The Once And Future Promise Of Access To Justice In Washington's Article I, Section 10, Debra Stephens

Washington Law Review Online

This Essay is part of the Symposium on State Constitutional Law in Honor of the late Washington State Supreme Court Justice Robert F. Utter that was held on October 23, 2015.

50th Annual William H. Leary Lecture - Fifty Years Of Constitutional Law: What's Changed?, Erwin Chemerinsky

Utah Law Review

I truly believe that over the next fifty years there will be, as there was in the prior fifty years, an expansion of freedom; an increase in equality. Because here I believe, and I’ll conclude with this, that the late Dr. Martin Luther King got it right when he said “The arc of the moral universe is long but it bends towards justice."

Preserving Judicial Independence In Dominant Party States, Mark Tushnet

NYLS Law Review

No abstract provided.

The Armstrong Evolution, Michael Pappas

Publications

No abstract provided.

Lawn Signs: A Fourth Amendment For Constitutional Curmudgeons, Andrew Ferguson, Stephen E. Henderson

Faculty Articles

What is the constitutional significance of the proverbial “keep off the grass” sign? This question—asked by curmudgeonly neighbors everywhere—has been given new currency in a recent decision by the United States Supreme Court. Indeed, Florida v. Jardines might have bestowed constitutional curmudgeons with significant new Fourth Amendment protections. By expressing expectations regarding—and control over—access to property, “the people” may be able to claim greater Fourth Amendment protections not only for their homes, but also for their persons, papers, and effects. This article launches a constitutionally grounded, but lighthearted campaign of citizen education and empowerment: Fourth Amendment LAWn signs. With every …

A Rose By Any Other Name: Regulating Law Enforcement Bulk Metadata Collection, Stephen E. Henderson

Faculty Articles

In Other People’s Papers, Jane Bambauer argues for careful reform of the Fourth Amendment’s third party doctrine, providing an important contribution to an increasingly rich field of scholarship, judicial opinion, statute, and law reform. Bambauer is especially concerned with access to bodies of third-party data that can be filtered and mined, as they can be privacy invasive but also effective and less subject to traditional investigative prejudices and limitations. Although her article provocatively overclaims in trying to set itself apart from existing proposals, by analyzing existing constitutional and statutory law—including what I have termed a “limited” third party doctrine—and comparing …

Revenge Porn: Chivalry Prevails As Legislation Protects Damsels In Distress Over Freedom Of Speech, Sarah E. Driscoll

Roger Williams University Law Review

No abstract provided.

Insult To Injury: A Constitutional Challenge To Rhode Island's Most Colorful Shaming, Breegan Semonelli

Roger Williams University Law Review

No abstract provided.

Compact Is Back: The Supreme Court Of Canada’S Revival Of The Compact Theory Of Confederation, Sébastien Grammond

Osgoode Hall Law Journal

The compact theory of Canadian Confederation is the idea that the Constitution is the product of a political agreement (or “compact”) among the country’s constitutive parts. Although the theory has been widely criticized, this article shows how the theory has recently been used by the Supreme Court of Canada to explain the origins of certain parts of the Constitution and to guide its interpretation, in particular in cases involving constitutional amendment and indigenous rights. It then discusses how the Court dealt with instances where one party’s consent to a foundational compact was vitiated or altogether lacking, and whether the Court’s …

Marriage, Abortion, And Coming Out, Scott Skinner-Thompson, Sylvia A. Law, Hugh Baran

Publications

Over the past two decades, legal protections for lesbian, gay, and bisexual individuals have dramatically expanded. Simultaneously, meaningful access to reproductive choice for women has eroded. What accounts for the different trajectories of LGBTQ rights and reproductive rights?

This Piece argues that one explanation—or at least partial explanation—for the advance of LGBTQ rights relative to reproductive rights is the differing degree to which individuals have come out about their experiences with sexuality compared to coming out about experiences with unplanned pregnancies. In particular, as catalogued in this Piece, popular media portrayals of lesbian and gay individuals have proliferated, broadening the …

Comparative Reflections On Duncan V. Louisiana And Baldwin V. New York, William Pizzi

Publications

No abstract provided.

Siri-Ously? Free Speech Rights And Artificial Intelligence, Toni M. Massaro, Helen Norton

Publications

Computers with communicative artificial intelligence (AI) are pushing First Amendment theory and doctrine in profound and novel ways. They are becoming increasingly self-directed and corporal in ways that may one day make it difficult to call the communication ours versus theirs. This, in turn, invites questions about whether the First Amendment ever will (or ever should) cover AI speech or speakers even absent a locatable and accountable human creator. In this Article, we explain why current free speech theory and doctrine pose surprisingly few barriers to this counterintuitive result; their elasticity suggests that speaker humanness no longer may be …

Unintended Lawlessness Of Stand Your Ground: Justitia Fiat Coelum Ruat, Ann Marie Cavazos

Journal Publications

This paper will examine Florida's Stand Your Ground law by analyzing the origins and purpose of the law, vis-a-vis comparative analysis, and by discussing the application of this law. It will compare the stories of victims and further dissect the necessity and benefits of the Stand Your Ground laws, and examine in particular how it has affected the citizens of Florida and the nation. This Article will examine unforeseen outcomes derived from the enactment of a law meant for the common good and will further discuss how the Castle Doctrine evolved into the current Stand Your Ground laws. It will …

I Don’T Believe That Answers Our Question: The Story Of White V. Woodall And How The Supreme Court’S Silence Is Adversely Affecting The Fifth Amendment Privilege, Nathan B. Hall

Oklahoma Law Review

No abstract provided.