Constitutional Law Commons^™

Updating New York’S Constitutional Environmental Rights, Nicholas A. Robinson

Pace Law Review

The stakes are high as New York State considers whether to amend the constitution. The electorate contemplates the gathering crises of sea level rise, disruption of weather patterns, intensified summer heat waves, and other climate change impacts. New York also faces escalating environmental problems, which the newly perceived climate impacts in turn exacerbate. It is timely to debate whether or not New York should recognize the right to the environment to its constitution. In 2016, the House of Delegates of the New York State Bar Association adopted the report of its committee on the constitution, regarding the environmental conservation article …

Subnational Environmental Constitutionalism And Reform In New York State, James R. May

Pace Law Review

The State of New York’s constitution was perhaps the first in the world to embody environmental constitutionalism, most directly in what is known as its “Forever Wild” mandate from 1894. In contrast to many subnational environmental provisions, courts in New York have regularly enforced Forever Wild. New York’s Constitution also contains a remarkable mandate that every twenty years voters decide whether to hold elections for delegates to convene a convention to amend the state’s constitution, with the next such opportunity on November 7, 2017. This article explores how subnational constitutionalism from around the world informs discussions about whether and how …

Home Rule In New York: The Need For A Change, Michael A. Cardozo, Zachary W. Klinger

Pace Law Review

This article is intended to provide a practical lens into how Home Rule issues unfold in complex matters involving the City, and to suggest how a much-needed Home Rule constitutional amendment could re-shape or, at the very least, clarify Home Rule standards. Section II will provide some historical and legal background on Home Rule; Section III will analyze some of the more well-known Home Rule cases that the Law Department litigated during the Bloomberg Administration; and Section IV will discuss insights gleaned with respect to, and will offer several recommendations for, the future of Home Rule in New York.

The Constitutional Convention And Court Merger In New York State, Jay C. Carlisle, Matthew J. Shock

Pace Law Review

In November 2017, voters in New York, for the first time in twenty years, will be asked to decide whether there “[s]hall be a convention to revise the constitution and amend the same?” If it is decided by the electorate to call a convention, “delegates will be elected in November 2018, and the convention will convene in April 2019.” One of the significant goals of a convention would be the achievement of court merger in the Empire State. The purpose of this perspective is to discuss the pros and cons of a constitutional convention with an emphasis on court merger.

The Road To A Constitutional Convention: Reforming The New York State Unified Court System And Expanding Access To Civil Justice, Jonathan Lippman

Pace Law Review

This article will focus on the judiciary reforms and access to justice—starting with reforms to the structure of the Unified Court System and discussing other ways that a constitutional convention might serve to improve the operation of the courts. The article will then explore the state’s deficiency in providing its low-income citizens access to justice in civil matters relating to housing, family safety and security, and subsistence income, and how a convention can highlight these issues.

Constitutionalizing Ethics, Bennett L. Gershman

Pace Law Review

The purpose of this essay is not to weigh in the wisdom or utility in revising New York’s Constitution. However, in my opinion, one of the most compelling reasons to amend New York’s Constitution is the need to incorporate into the fundamental charter a meaningful code of ethics, including procedures for its enforcement, and sanctions for violations. New York over the past fifteen years has experienced more scandals, criminal prosecutions, and convictions of lawmakers and other government officials for corruption than any state in the nation. It is certainly arguable that the extent of New York’s corruption, and the widespread …

Unusual “Politics As Usual”: The 2017 Ballot Proposition Calling For A Constitutional Convention In New York, Peter J. Galie

Pace Law Review

The first task of constitutional reformers is to make the people of the state aware that they live under a constitution that, for better or worse, affects their everyday lives whether they live on in remotes sections of the Adirondacks routes in villages or a teeming megalopolis. Until this is done, the people are not likely to demand or even accept the more thoroughgoing revision so badly needed in New York.

The Amending Clause In The New York Constitution And Conventionphobia, Gerald Benjamin

Pace Law Review

The amending clause is the nineteenth of the New York State Constitution’s twenty articles. Followed only by the enacting clause, for all intents and purposes this is the document’s final word. Well, maybe not the final word. An alternative is to think of this amending clause as a part of an ongoing several-centuries-long conversation. The clause is a message from one past group of designers and drafters of New York’s governing system, the 1846 Constitutional Convention majority, to all of us who gave them the charge to “secure [for us] the blessings of freedom,” that is to “we the people” …

Hope Vs. Fear: The Debate Over A State Constitutional Convention, Henry M. Greenberg

Pace Law Review

On November 7, 2017, New Yorkers will go to their polling places and receive ballots containing a thirteen-word referendum question: “Shall there be a convention to revise the constitution and amend the same?” That question appears on the ballot because the New York State Constitution commands that at least once every twenty years voters are asked whether or not to call a constitutional convention. The mandatory referendum reflects Thomas Jefferson’s belief that every generation the people should be given a chance to revise their basic law.

Jehovah's Witnesses And The Refusal Of Blood Transfusions: A Balance Of Interests, Geraldine Koeneke Russell, Donald Wallace

The Catholic Lawyer

No abstract provided.

Delivery Room Resuscitation Of The High-Risk Infant: A Conflict Of Rights, Rebecca Cooper, M.D.

The Catholic Lawyer

No abstract provided.

On The Legal Status Of The Unborn, Stephen J. Heaney

The Catholic Lawyer

No abstract provided.

U.S. And Anglo-Australian Decisions On A Husband's Right To Prevent Abortion, J. Kodowo Bentil

The Catholic Lawyer

No abstract provided.

Abortion: From Roe To Webster, Phillip A. Smith

The Catholic Lawyer

No abstract provided.

Fetal Jurisprudence - A Debate In The Abstract, Robert J. Araujo

The Catholic Lawyer

No abstract provided.

Maine's Sex Offender Registry And The Ex Post Facto Clause: An Examination Of The Law Court's Unwillingness To Use Independent Constitutional Analysis In State V. Letalien, Lauren Wille

Maine Law Review

In 1996, Eric Letalien pleaded guilty to the gross sexual assault of a thirteen year-old girl, an offense he committed when he was nineteen years old. At the time of his sentencing in August of 1996, Letalien was subject to Maine’s Sex Offender Registration and Notification Act of 1995 (SORNA of 1995). Pursuant to SORNA of 1995, Letalien was required to register his address with the State Bureau of Identification (SBI) and update his address in the event he moved. This registration requirement was to be in effect for fifteen years from the time he was released from incarceration. After …

Constitution Day Lecture: Constitutional Law And Tort Law: Injury, Race, Gender, And Equal Protection, Jennifer B. Wriggins

Maine Law Review

The focus of today’s annual Constitution Day lecture at the University of Maine School of Law is on the Fourteenth Amendment and specifically how the Equal Protection Clause relates to tort law. First, I will talk about the Equal Protection Clause in general—what it says, and some of what it has been held to mean—particularly where government makes distinctions based on race and gender. Second, I will discuss two historical tort cases that violate equal protection on the basis of race. In doing so, I uncover the racial history of tort law that has been hidden in plain sight. I …

Comparative Perspectives On Specialized Trials For Terrorism, Sudha Setty

Maine Law Review

President Obama has made clear that the United States must grapple with questions of how to detain and try potentially dangerous terrorism suspects in a manner that maximizes national security while adhering to the rule of law. Yet the United States faces a serious quandary in terms of how to prosecute suspects who have been detained at Guantanamo Bay, Cuba, that puts at risk the reputation of the United States justice system and its adherence to rule of law. The question of what trial system to use for suspected terrorists requires an historical interrogation of how and to what effect …

Access To Prescription Drugs: A Normative Economic Approach To Pharmacist Conscience Clause Legislation, Joanna K. Sax

Maine Law Review

Over the past several years, many states introduced legislation that protects a pharmacist’s decision to refuse to fill a prescription. Termed “conscience clauses,” these pieces of legislation allow a pharmacist to refuse to fill a prescription because of moral or religious objections without fear of legal repercussions. In 2006, for example, twenty-one states considered legislation that permits pharmacists to refuse to fill prescriptions; some bills focus on contraception alone, while others are not specific to any one type of medication. Arkansas, Mississippi, Georgia, Florida, and South Dakota have state laws that provide legal protection to pharmacists who refuse to fill …

The Intelligible Principle: How It Briefly Lived, Why It Died, And Why It Desperately Needs Revival In Today's Administrative State, Meaghan Dunigan

St. John's Law Review

(Excerpt)

This Note addresses the flaws in the current intelligible principle standard and proposes a new three-part standard that would better revitalize the intelligible principle as it was first articulated almost a century ago. This Note concedes that while legislative delegation in any form is a violation of the original meaning of the nondelegation doctrine, our society and the growth of administrative agencies removed any chance of having our laws created solely by Congress. What can happen, and what this Note proposes, is for the Supreme Court to adopt a new intelligible principle standard that scales back the amount of …

Fisher V. University Of Texas At Austin: Navigating The Narrows Between Grutter And Parents Involved, Kimberly A. Pacelli

Maine Law Review

Universities’ use of race as a factor in their admissions decisions has been a divisive issue both in the legal system and in political discourse. Opponents of affirmative action have challenged racial preferences in public university admissions under the Equal Protection Clause of the Fourteenth Amendment. Individuals who find themselves denied a coveted seat in a university class and suspect that racial preferences are to blame will often challenge their rejection as a denial of their state’s “equal protection of the laws.” The United States Court of Appeals for the Fifth Circuit recently considered whether the University of Texas at …

Enough Is Enough: The Law Court's Decision To Functionally Raise The "Reasonable Connection" Relevancy Standard In State V. Mitchell, Robert P. Hayes

Maine Law Review

In State v. Mitchell, the Maine Supreme Judicial Court, sitting as the Law Court, affirmed a jury verdict finding Thomas Mitchell guilty of a 1983 murder. In doing so, the Law Court examined two issues: First, whether the trial court “abused its discretion in excluding evidence of an alternative suspect”; and second, whether the trial court’s decision to admit evidence stemming from an autopsy performed two decades before the trial violated the Confrontation Clause of the United States Constitution. In reaching the alternative suspect decision, the Law Court held that the evidence proffered by Mitchell did not establish a reasonable …

Reflections On Forty Years Of Private Practice And Sustained Pro Bono Advocacy, Stephen H. Oleskey

Maine Law Review

I am going to address two topics. The first is the one Judge Coffin asked me to address in October 2009, when I was invited to give the 2010 Coffin Lecture: how to combine the private practice of law with an active pro bono practice. The second topic is the one Dean Peter Pitegoff and I agreed to add: a brief discussion of legal developments in national security law since 9/11. My pro bono involvement in Guantanamo Habeas litigation began in 2004 and led directly to my interest in national security law and to my recognition of how difficult it …

Newsroom: Is Wall Between Church And State Crumbling? 10-10-2017, Diana Hassel

Life of the Law School (1993- )

No abstract provided.

October 9, 2017: Jewish Witness On The West Bank, Bruce Ledewitz

Hallowed Secularism

Blog post, “Jewish Witness on the West Bank“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Finding Freedom For The Thoughts We Hate, John M. Greabe

Law Faculty Scholarship

In his dissenting opinion in United States v. Schwimmer (1929), Supreme Court Justice Oliver Wendell Holmes, Jr., famously defended tolerance as an indispensable constitutional value. He wrote: “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought – not free thought for those who agree with us but freedom for the thought that we hate.”

Yet accepting that the Constitution protects the thought that we hate can be difficult, even during the best of times. And these are far from the best of times. Nuclear brinksmanship …

November 7, 2017: “An Act Of Pure Evil”, Bruce Ledewitz

Hallowed Secularism

Blog post, “An Act of Pure Evil” discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Rwu First Amendment Blog: Diana Hassel's Blog: Is The Wall Between Church And State Crumbling? 10-07-2017, Diana Hassel

Law School Blogs

No abstract provided.

Leveraging Academic Law Libraries To Expand Access To Justice, Paul Jerome Mclaughlin Jr.

Library Faculty Publications

Academic law libraries are in a unique position to help citizens gain access to the court system and legal information. By creating clinics that focus on helping pro se patrons find and complete legal forms, academic law libraries would not only benefit their schools but also the justice system.

In Re Parental Rights As To A.D.L., 133 Nev. Adv. Op. 72 (Oct. 5, 2017), Alexis Wendl

Nevada Supreme Court Summaries

The Nevada Supreme Court held that (1) requiring a parent to admit guilt to a criminal act in order to maintain his or her parental rights violates that parent’s Fifth Amendment rights; and (2) substantial evidence must demonstrate that terminating parental rights is in the best interest of the children when a parent overcomes the presumptions in NRS 128.109(1)-(2).