Constitutional Law Commons^™

Is Religion A Non-Negotiable Aspect Of Liberal Constitutionalism?, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Florida's Workers Compensation Law: The Pendulum Swings, Ursula Hirsch

Honors Undergraduate Theses

The intent of this paper is to discuss how the recent court rulings on the current workers compensation statutes will impact the rules to Florida’s workers compensation laws.

Workers Compensation system is a social justice system that protects both the employer and employee. Employees that are injured while in the course and scope of their employment give up the right to sue, making workers compensation an exclusive remedy. In exchange for giving up that right, the injured worker receives statutory benefits in a no-fault system.

This paper covers the legislative changes over the years that have impacted the constitutionality of …

Public Employee Speech: Answering The Unanswered And Related Questions In Lane V. Franks, John E. Rumel

Articles

No abstract provided.

Civil Asset Forfeiture Abuses: Can State Legislation Solve The Problem?, David Pimentel

Articles

No abstract provided.

Civil Asset Forfeiture Abuses: Can State Legislation Solve The Problem?, David Pimentel

Articles

No abstract provided.

Unduly Burdening Women’S Health: How Lower Courts Are Undermining Whole Woman’S Health V. Hellerstedt, Leah M. Litman

Michigan Law Review Online

At the end of the Supreme Court’s 2016 Term, the Court issued its decision in Whole Woman’s Health v. Hellerstedt. One of the more closely watched cases of that Term, Hellerstedt asked whether the Supreme Court would adhere to its prior decision in Planned Parenthood v. Casey, which reaffirmed that women have a constitutionally protected right to decide to end a pregnancy.

The state of Texas had not formally requested that the Court revisit Casey or the earlier decision Casey had affirmed, Roe v. Wade, in Hellerstedt. But that was what Texas was, in effect, asking …

Cybersecurity For Infrastructure: A Critical Analysis, Eldar Haber, Tal Zarsky

Florida State University Law Review

Nations and their citizens rely on infrastructures. Their incapacitation or destruction could prevent nations from protecting themselves from threats, cause substantial economic harm, and even result in the loss of life. Therefore, safeguarding these infrastructures is an obvious strategic task for any sovereign state. While the need to protect critical infrastructures (CIs) is far from novel, digitization brings new challenges as well as increased cyber-risks. This need is self-evident; yet, the optimal policy regime is debatable. The United States and other nations have thus far opted for very light regulation, merely encouraging voluntary steps while choosing to intervene only in …

Innocent Until Born: Why Prisons Should Stop Shackling Pregnant Women To Protect The Child, Melanie Kalmanson

Florida State University Law Review

The practice of American prisons to shackle and otherwise restrain incarcerated, preg-nant women is problematic for several reasons. Such practices include shackling, chaining, and handcuffing pregnant inmates during their third trimester, transportation to and from medical facilities, labor and delivery, and postpartum recovery. Current discourse on this topic focuses primarily on how these practices invade the woman’s civil liberties, particularly the Eighth Amendment right against cruel and unusual punishment, and international human rights. Recent case law vindicates policy rationales for such practices—safety of others, safety of the woman herself, and securing flight risks.

These discussions overlook and this Note confronts …

Obergefell, Fisher, And The Inversion Of Tiers, Maxwell Stearns

Faculty Scholarship

In striking the ban on same-sex marriage in Obergefell v. Hodges, the Supreme Court avoided tiers of scrutiny, thus declining to apply rational basis in a non-deferential manner as it had in other cases involving sexual orientation. In oral argument in Fisher v. University of Texas, the Court signaled its growing discomfort with the Grutter v. Bollinger strict scrutiny doctrine, which affords a level of institutional deference in tension with narrow tailoring and least restrictive means. And although the Court claims to apply intermediate scrutiny in gender-based equal protection cases, the cases devolve de facto applications of strict …

Symposium: Business In The Roberts Court - Introduction: Still In Search Of The Pro-Business Court, Jonathan H. Adler

Faculty Publications

The Supreme Court under Chief Justice Roberts is often described as a “pro-business” court. Many commentators believe that Court is particularly sympathetic to business interests in concerns. A 2016 volume, Business and the Roberts Court turned a critical eye to this hypothesis. In September 2016, the Center for Business Law & Regulation at the Case Western Reserve University School of Law hosted a symposium to further explore how the Roberts Court deals with business issues. Papers from this conference were published in the Case Western Reserve Law Review, and this brief article served as the Introduction for this symposium.

Law And Policy Resource Guide: A Survey Of Eminent Domain Law In Texas And The Nation, Caitlyn Ashley, Elizabeth Spencer Berthiaume, Philip Berzin, Rikki Blassingame, Stephanie Bradley Fryer, John Cox, E. Samuel Crecelius, Taylor Dennington, Tave Doty, Stacie Dowell, Cameron Frysinger, Jordan Simmons Hayes, Alexandria Hutchison, Hillary Tidwell, Michael Vinson, George Wigington, Christopher Wilkes, Lola Wilson, Shane Wright

EENRS Program Reports & Publications

Eminent Domain is the power of the government or quasi-government entities to take private or public property interests through condemnation. Eminent Domain has been a significant issue since 1879 when, in the case of Boom Company v. Patterson, the Supreme Court first acknowledged that the power of eminent domain may be delegated by state legislatures to agencies and non-governmental entities. Thus, the era of legal takings began.

Though an important legal dispute then, more recently eminent domain has blossomed into an enduring contentious social and political problem throughout the United States. The Fifth Amendment to the United States Constitution states, …

The Disparate Impact Canon, Michael T. Morley

Scholarly Publications

No abstract provided.

Whistle While You Work: Interpreting Retaliation Remedies Available To Whistleblowers In The Dodd-Frank Act, Max Birmingham

Florida A & M University Law Review

This Article asserts that judicial activism occurs when a court goes beyond the plain meaning of the text that is plain and unambiguous, to promulgate its politics. This Article does not make the argument nor infer that this is the sole definition of judicial activism. Rather, this Article is narrowing the scope by enumerating a specific act that falls within the category of judicial activism.

This argument proceeds as follows. Part I provides context of judicial activism. Part II analyzes how various courts have interpreted the statute, and whether the interpretation is consistent with canons of construction. Part III assesses …

Lafler V. Cooper's Remedy: A Weak Response To A Constitutional Violation, Matthew T. Ciulla

Notre Dame Law Review Reflection

The Lafler v. Cooper Court should have chosen the remedy of specific performance of the original plea bargain. The specific performance remedy, long implemented by federal courts in Lafler-like scenarios, and ordered by the district court in Lafler, precisely cures the Lafler injury—the accused regains the ability to accept the original plea offer, except he now has the benefit of effective assistance of counsel. The specific performance remedy, when coupled with the safeguards of the Strickland prongs, poses little risk of abuse, and gives heft to the Sixth Amendment’s guarantee of effective assistance of counsel in the plea …

Capital Punishment Of Unintentional Felony Murder, Guyora Binder, Brenner Fissell, Robert Weisberg

Notre Dame Law Review

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the …

Who Should Own Police Body Camera Videos?, Laurent Sacharoff, Sarah Lustbader

Sturm College of Law: Faculty Scholarship

Numerous cities, states, and localities have adopted police body camera programs to enhance police accountability in the wake of repeated instances of police misconduct, as well as recent reports of more deep-seated police problems. These body camera programs hold great promise to achieve accountability, often backed by millions of dollars of federal grants.

But so far, this promise of accountability has gone largely unrealized, in part because police departments exercise near-total control over body camera programs and the videos themselves. In fact, the police view these programs chiefly as a tool of ordinary law enforcement rather than accountability — as …

Ithink My Electronic Data Is Secure, But Is It: A Constitutional Analysis Of In Re The Search Of An Apple Iphone, Shira Bloom

Touro Law Review

No abstract provided.

Supreme Court Supremacy In A Time Of Turmoil, Richard Henry Seamon

Articles

Last term's decision in James v. City of Boise encapsulates the current civil rights turmoil and the legal system's inadequate response to it. In James, the U.S. Supreme Court reversed a decision in which the Idaho Supreme Court (1) awarded attorney's fees against a civil rights plaintiff despite her credible claim of excessive police force and (2) denied that it was bound by U.S. Supreme Court decisions interpreting the federal statute authorizing the award. Although the Court in James reaffirmed the state courts' well-settled duty to obey the Court's decisions on federal law, this article shows that the duty rests …

The Contract Clause: A Constitutional History By James W. Ely (Review), Jay D. Wexler

Shorter Faculty Works

If the Constitution were a zoo, what resident animal would the Contract Clause be? The clause, which is found in Article I, section 10 of our founding document, reads: “No state shall . . . pass any . . . Law impairing the Obligation of Contracts.” It certainly would not be one of the zoo’s star attractions; the Contract Clause is no First Amendment lion or Fourth Amendment tiger. But it is no bat-eared fox (the Letters of Marque Clause?) or Eurasian water shrew (the Third Amendment?) either. Based on reading Ely’s comprehensive history of the Contract Clause, perhaps it …

Data Breaches, Identity Theft, And Article Iii Standing: Will The Supreme Court Resolve The Split In The Circuits?, Bradford C. Mank

Notre Dame Law Review

In data breach cases, the plaintiff typically alleges that the defendant used inadequate computer security to protect the plaintiff’s personal data. In most, but not all cases, the plaintiff cannot prove that a hacker or thief has actually used or sold the data to the plaintiff’s detriment. In most cases, a plaintiff alleges that the defendant’s failure to protect his personal data has caused him damages by increasing his risk of suffering actual identity theft in the future and therefore imposed costs on the plaintiff when he reasonably takes measures to prevent future unauthorized third-party data access by purchasing credit …

Subconstitutional Checks, Shima Baradaran Baughman

Notre Dame Law Review

Constitutional checks are an important part of the American justice system. The Constitution demands structural checks where it provides commensurate power. The Constitution includes several explicit checks in criminal law. Criminal defendants have rights to counsel, indictment by grand jury, and trial by jury; the public or executive elects or appoints prosecutors; legislatures limit actions of police and prosecutors; and courts enforce individual constitutional rights and stop executive misconduct. However, these checks have rarely functioned as intended because the Constitution and criminal law have failed to create—what I call—“subconstitutional checks” to adapt to the changes of the modern criminal state. …

The Dignity Canon, Noah B. Lindell

Cornell Journal of Law and Public Policy

Human dignity is not a freestanding constitutional right, but it is a strongly held constitutional value. To this point, however, human dignity has had no place in statutory interpretation. This Article argues that courts should create a dignity canon of interpretation, which would operate as a clear statement rule. If laws are to be construed to limit individual dignity, the legislature must expressly this plainly. By conducting re-dos of three Supreme Court cases in the areas of civil rights, criminal procedure, and personal health, the Article shows the promise of the dignity canon.

Sports And The First Amendment: Ufc Is The Latest Challenger, Jason J. Cruz

Marquette Sports Law Review

None

The New Fisa Court Amicus Should Be Able To Ignore Its Congressionally Imposed Duty, Ben Cook

American University Law Review

No abstract provided.

Combating Impunity: Contractor Liability For Torture During Times Of War Under The Wartime Suspension Of Limitations Act, Claire Jabbour

American University Business Law Review

No abstract provided.

Maryland's Bundle Of Joy: A Constitutionally Stronger, More Comprehensive Take On Contraception Coverage, Alexi Nathan

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Cruel And Unusual Punishment: Denying Ex-Felons The Right To Vote, Amy Heath

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Reviving The Fourth Amendment: Reasonable Expectation Of Privacy In A Cell Phone Age, 50 J. Marshall L. Rev. 555 (2017), Marisa Kay

UIC Law Review

No abstract provided.

Polarizing Procedures: Transsexual Inmates, Sex Reassignment Surgery, And The Eighth Amendment, 50 J. Marshall L. Rev. 747 (2017), Jameson Rammell

UIC Law Review

This article argues that at present, there is not sufficient certainty within the medical and scientific communities to definitively state that SRS is medically necessary for transsexual individuals, or that it effectively relieves the negative symptoms often associated with gender dysphoria. Because the Supreme Court has held that the Eighth Amendment does not require prison officials to provide the most cutting-edge treatments available, but only an adequate level of treatment, it is not a violation of the Eighth Amendment to deny a transsexual inmate’s request for SRS. Part I explores the medical and scientific communities’ current understanding of gender dysphoria, …

Extraterritorial Constitutionalism: A Rule Proposed, 50 J. Marshall L. Rev. 787 (2017), Joseph Alfe

UIC Law Review

Does the Fourth Amendment apply in cases of cross-border shootings of foreign nationals, when those shots were fired by United States Border Patrol agents from American soil, striking a victim in Mexico? In oral argument, Petitioner failed to heed the trail of breadcrumbs strewn at his feet by inquisitive Supreme Court Justices. A workable, yet narrow rule that would plug the critically important gap in application of the United States Constitution to remedy such cross-border atrocities, was not articulated. I propose one here. The world’s busiest border is that which is shared between the United States and Mexico. Our countries …