Constitutional Law Commons^™

A Civil Rights Act For The 21st Century: The Privileges And Immunities Clause And A Constitutional Guarantee To Be Free From Discriminatory Impact, Mark Dorosin

Journal Publications

As the nation reflects on the fiftieth anniversaries of the various civil rights legislation of the 1960s' and considers the challenges that remain for fully addressing our history of racial discrimination, segregation, and suppression, we must begin with a very fundamental question: What is the harm that we are seeking to address, and how effectively do our current civil rights laws work towards achieving that goal? Given our collective success in addressing some of the most egregious intentional discrimination, as well as the intransigent, and evolving nature of institutional racism, it is time for a new Civil Rights Act that …

The Real Homeland Security Gaps, Areto A. Imoukuede

Journal Publications

This Article reveals the real security gaps in FPS and suggests that the enormous delegation of FPS's vital security functions to private contractors should be treated as an unconstitutional delegation of an inherently governmental function. However, the current constitutional doctrine regarding inherently governmental functions is so weak that even this obvious example of a vital security function that ought to be performed by government fails to satisfy the current constitutional standard for being inherently governmental. Part II presents the FPS federal infrastructure mission and the real homeland security gaps created by post 9/11 policies that have undermined FPS security capabilities. …

Foster V. Chatman And The Failings Of Batson, Patrick C. Brayer

Faculty Works

When the Supreme Court delivered its ruling in Foster v Chatman, the court described the actions of the prosecutors as being “motivated in substantial part by race” when they struck two potential jurors from hearing the capital murder case against Timothy Foster. This phenomenon of open and explicit racial intolerance is unfortunately still in existence thirty years after Foster first went to trial. What the Court failed to acknowledge was how new attitudes of exclusion are less intentional today and more nuanced, implicit, and rationalized. Black defendant’s in 2016 face prosecutors who are less engaged in open discrimination but more …

When Scalia Wasn't Such An Originalist, Michael Lewyn

Scholarly Works

Although Justice Scalia generally described himself as an originalist, his opinion in Lucas v. South Carolina Coastal Council rejected originalist arguments. Why? This article suggests that pre-Lucas precedent and the ambiguity of the historical record might justify his methodology.

Chipping Away At The Rock: Perez V. Mortgage Bankers Association And The Seminole Rock Deference Doctrine, Kevin O. Leske

Loyola of Los Angeles Law Review

Largely escaping judicial and scholarly examination for close to seventy years, the Seminole Rock deference doctrine directs federal courts to defer to an administrative agency’s interpretation of its own regulation unless such interpretation “is plainly erroneous or inconsistent with the regulation.” But at long last the United States Supreme Court is poised to re-evaluate the doctrine.

In March 2015, in Perez v. Mortgage Bankers Association, the Court addressed whether a federal agency was required to follow the notice-and-comment procedures of the Administrative Procedure Act after it changed a prior interpretation of its regulation under the “Paralyzed Veterans doctrine.” Although …

Constitutional Rights And The Transition To Democracy: Twenty Years Of South African Constitutionalism, Christopher G. Oechsli

NYLS Law Review

No abstract provided.

Twenty Years Of South African Constitutionalism, Gay J. Mcdougall

NYLS Law Review

No abstract provided.

Twenty Years Of Constitutional Democracy: A Preliminary Reflection, Dennis M. Davis

NYLS Law Review

No abstract provided.

Strengthening Constitutional Democracy: Progress And Challenges Of The South African Human Rights Commission And Public Protector, Tseliso Thipanyane

NYLS Law Review

No abstract provided.

Accountability And The Role Of Independent Constitutional Institutions In South Africa’S Post-Apartheid Constitutions, Heinz Klug

NYLS Law Review

No abstract provided.

Corruption Cases And Separation Of Powers In The South African Courts And U.S. Supreme Court, Mark Kende

NYLS Law Review

No abstract provided.

Access To Justice?: Dispute Management Processes In Msinga, Kwazulu-Natal, South Africa, Sindiso Mnisi Weeks

NYLS Law Review

No abstract provided.

Understanding South Africa’S Aspirational Constitution As Scaffolding, Stu Woolman

NYLS Law Review

No abstract provided.

The Constitutionalization Of Children’S Rights In South Africa, Warren Binford

NYLS Law Review

No abstract provided.

Judicial Review Of Parliamentary Rulemaking: A Provisional Case For Restraint, Firoz Cachalia

NYLS Law Review

No abstract provided.

Clinical Legal Education’S Contribution To Building Constitutionalism And Democracy In South Africa: Past, Present, And Future, Peggy Maisel, Shaheda Mahomed, Meetali Jain

NYLS Law Review

No abstract provided.

Legal Education In South Africa: Harmonizing The Aspirations Of Transformative Constitutionalism With Our Educational Legacy, Lesley Greenbaum

NYLS Law Review

No abstract provided.

How Should The South African Constitutional Court Approach Tensions Between Women’S Rights And Religious Rights?, Julia L. Ernst

NYLS Law Review

No abstract provided.

“The Advert Was Put Up Yesterday”: Public Participation In The Traditional Courts Bill Legislative Process, Thuto Thipe, Monica De Souza, Nolundi Luwaya

NYLS Law Review

No abstract provided.

Palmer V. District Of Columbia, Brian Noel

NYLS Law Review

No abstract provided.

Think Of The Children: Using Iied To Reformulate Disturbing Speech Restrictions, Richard Lorren Jolly

University of Michigan Journal of Law Reform

The Colorado State Court of Appeals recently upheld an injunction restricting public displays of aborted fetuses. The court held that the restriction passed strict scrutiny because the state had a compelling interest in protecting children from the psychological harm of “disturbing images” and the injunction was narrowly tailored. This marked the first time an injunction had been upheld on this rationale. This Note critiques that holding and others. It contends that while some federal and state courts have recognized the interest in protecting the psychological wellbeing of children from disturbing speech as compelling, the interest is not supported by precedent. …

Constitutional Avoidance As Interpretation And As Remedy, Eric S. Fish

Michigan Law Review

In a number of recent landmark decisions, the Supreme Court has used the canon of constitutional avoidance to essentially rewrite laws. Formally, the avoidance canon is understood as a method for resolving interpretive ambiguities: if there are two equally plausible readings of a statute, and one of them raises constitutional concerns, judges are instructed to choose the other one. Yet in challenges to the Affordable Care Act, the Voting Rights Act, the Chemical Weapons Convention, and other major statutes, the Supreme Court has used this canon to adopt interpretations that are not plausible. Jurists, scholars, and legal commentators have criticized …

Climate Exactions, J. Peter Byrne, Kathryn A. Zyla

Georgetown Law Faculty Publications and Other Works

This essay presents a legal device by which local governments can put a price on climate emissions and loss of resiliency generated by new real estate development. Local governments commonly impose fees, a type of monetary exaction, on new development to offset public costs that such development will impose. This Essay argues that monetary fees offer significant potential as a tool to help local governments manage land development’s contribution to climate change. Such “climate exactions” can put a price on the carbon emissions from new development and also on development that reduces the natural resiliency of the jurisdiction to the …

You've Got Legal Mail: Applying Constitutional Protections To Attorney-Inmate E-Mail Communications, Gregory R. Steele

Georgia Law Review

Several U.S. Attorney's offices have begun to read e-mails between defense attorneys and their inmate-clients sent through the Bureau of Prisons TRULINCS system. District courts have been split on how they address the issue. This Note argues that the practice of reading attorney-inmate e- mails violates the Sixth Amendment. It specifically argues that the legal mail doctrine should be applied to invalidate this practice. It then argues the Bureau of Prisons should promulgate new regulations for legal e-mail that ensure compliance with the constitutional requirements of the newly applied legal e-mail doctrine.

The Juror’S Sacred Oath: Is There A Constitutional Right To A Properly Sworn Jury?, Kathleen M. Knudsen

Touro Law Review

No abstract provided.

Montgomery V. Louisiana: An Attempt To Make Juvenile Life Without Parole A Practical Impossibility, Erin Dunn

Touro Law Review

No abstract provided.

Scalia On Abortion: Originalism... But, Why?, Robert Cassidy

Touro Law Review

No abstract provided.

Administration Of The Criminal Justice System: When Efficiency Trumps A Fundamental Right, Sean Mcleod

Touro Law Review

No abstract provided.

The Original Understanding Of "Property" In The Constitution, Paul J. Larkin Jr.

Marquette Law Review

Contemporary Supreme Court jurisprudence treats “property” as far less deserving of judicial protection than “life” or “liberty.” The Supreme Court, however, has misread American legal history. Anglo-American traditions, customs, and law held that property was an essential ingredient of the liberty that the Colonists had come to enjoy and must be protected against arbitrary governmental interference. The Framers’ generation believed that “property” and “liberty” were equally important institutions and that neither one could exist without the other. The Framers venerated property as a means of guaranteeing personal independence because (among other things) the concept of “property” embraced the legal rights …

What's Fear Got To Do With It?: The "Armed And Dangerous" Requirement Of Terry, Gerald S. Reamey

Marquette Law Review

Rarely has a court’s opinion, even one from the Supreme Court of the United States, so altered existing notions of constitutional criminal procedure law as did the opinion in Terry v. Ohio. On several levels, the opinion dramatically shifted the way in which the Fourth Amendment was understood. Law students who had learned about the probable cause “requirement” and the warrant “requirement” were surprised to learn, especially in the case of the former, that these “requirements” were not required at all. To continue to conceptualize the Fourth Amendment’s single sentence guarantees as consisting of a “warrant clause” and a “reasonableness” …