Constitutional Law Commons^™

Copyright To The Rescue: Should Copyright Protect Privacy?, Deidre Keller

Journal Publications

While some courts have held that “[i]t is universally recognized . . . that the protection of privacy is not the function of our copyright law,” the remedies afforded copyright owners make pursuing copyright claims an attractive option to privacy plaintiffs. Copyright remedies include the removal of digital copies from the internet and the destruction of physical copies. The extent to which copyright ought to protect privacy interests has been considered in various jurisdictions recently but has not been treated comprehensively by contemporary legal scholars in the United States. This piece seeks to undertake that treatment.

Part II of this …

State V. Saldierna, Brian Boyd

NYLS Law Review

No abstract provided.

On Health, Law, And Religion, Stacey A. Tovino

Faculty Articles

The Supreme Court recently decided a number of cases involving health, law, and religion, including Whole Woman's Health v. Hellerstedt, Zubik v. Burwell, and Burwell v. Hobby Lobby Stores, Inc. These cases were important for understanding constitutional undue burden limitations and the boundaries of religious exercise during the Obama Administration. Unfortunately, the Supreme Court's recent opinions addressing health, law, and religion have little value for many health law professors and most practicing health care attorneys. These individuals, tasked with teaching and applying the thousands of federal and state statutes, regulations, and government guidance documents that address a wide …

Judging Congressional Elections, Lisa M. Manheim

Georgia Law Review

A pivotal clause of our Constitution suffers from
uncertainty and neglect. The result has scrambled the law
of contested congressional elections. These high-stakes
disputes turn on questions of procedure, and in particular
on questions of forum. Yet across the country, an
unpredictable and ad hoc set of regimes governs these
fundamental questions. The culprit behind the confusion
is Article I, Section 5 of the United States Constitution,
which states that "Each House shall be the Judge of the
Elections ... of its own Members." This command may
seem straightforward, if a bit unsettling-it allows
Congress to decide who has won …

Trans-Lating The Eighth Amendment Standard: The First Circuit's Denial Of A Transgender Prisoner's Constitutional Right To Medical Treatment, Bethany L. Edmondson

Georgia Law Review

In December of 2014, the First Circuit Court of Appeals
held, en banc, that the Massachusetts Department of
Corrections was not constitutionally obligated to provide
Michelle Kosilek, a transgender prisoner, with sexual
reassignment surgery. Kosilek sued the prison, arguing
that her Eighth Amendment rights against cruel and
unusual punishment were violated. The First Circuit held
that Kosilek did not have a serious medical need, due to
the prison's alternative treatment, and that the prison was
not deliberately indifferent to that need. This Note argues
that the First Circuit erred in applying the "serious
medical need" prong of the cruel and …

Man Up Or Go Home: Exploring Perceptions Of Women In Leadership, Abigail Perdue

Marquette Law Review

Throughout history, women in positions of authority have often been perceived as violating well-established gender norms. Perhaps as a result, female leadership has often been viewed as a threat to male power and privilege and thus provoked resistance. Female leaders challenge longstanding sex stereotypes and patriarchal structures, subverting the identities of androcentric institutions and the people who comprise them. In so doing, they redefine notions of what it means to be a leader as well as what it means to be a woman. Cisgender male subordinates in particular may feel that their masculinity is under assault when they are placed …

Wisconsin Law In The Age Of Individualism, Joseph A. Ranney

Marquette Law Review

None

Privatizing Bars On Abortion: Eviscerating Constitutional Rights Through Tort Remedies, Maya Manian

Scholarly Articles in Law Reviews & Journals

State governments have devised a new means to evade the Constitution. Their new means is to enact tort statutes that, in effect, ban constitutionally protected conduct. In particular, some states have made the provision of an abortion a tort for which there can be no defense and no cap on the amount of liability. These states have made performing an abortion essentially illegal. Yet, because tort statutes are enforced through private litigation, rather than public prosecution, a number of courts have held that they lack jurisdiction to review these laws. Federal courts have concluded that standing doctrine and state sovereign …

A Contextual Approach To Harmless Error Review, Justin Murray

Articles & Chapters

Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmlesserror review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal …

What Changes In American Constitutional Law And What Does Not, Edward A. Purcell Jr.

Articles & Chapters

No abstract provided.

A Practical Companion To The Constitution: The Cumulative Supplement 2nd Series 2008-2017, Jethro K. Lieberman

Books

This book serves as a supplement to A Practical Companion to the Constitution. It is a comprehensive update of constitutional topic from 2008-2017.

1930s Redux: The Administrative State Under Seige, Gillian E. Metzger

Faculty Scholarship

Eighty years on, we are seeing a resurgence of the antiregulatory and antigovernment forces that lost the battle of the New Deal. President Trump's administration has proclaimed the "deconstruction of the administrative state" to be one of its main objectives. Early Trump executive actions quickly delivered on this pledge, with a wide array of antiregulatory actions and a budget proposing to slash many agencies' funding. Invoking the long-dormant Congressional Review Act (CRA), the Republican-controlled Congress has eagerly repealed numerous regulations promulgated late in the Obama Administration. Other major legislative and regulatory repeals are pending, and bills that would impose the …

A New Balance Of Evils: Prosecutorial Misconduct, Iqbal, And The End Of Absolute Immunity, Mark C. Niles

Faculty Publications

Criminal prosecutors wield immense power in the criminal justice system. While the majority of prosecutors exercise this power in a professional manner, there is compelling evidence of a serious and growing problem of prosecutorial misconduct in this country. Although much prosecutorial misconduct results in the violation of the constitutional and other legal rights of criminal defendants, prosecutors are protected from any liability arising from these violations in all but the most exceptional cases by the defense of absolute immunity. The US. Supreme Court has justified the application of absolute prosecutorial immunity, in part, by noting that other means of incentivizing …

Report And Recommendations Concerning Environmental Aspects Of The New York State Constitution, New York State Bar Association Environmental And Energy Law Section, Mary L. Lyndon

Faculty Publications

The purpose of the Report is to inform and enrich understanding of environmental issues which may be considered at a Constitutional Convention (should one occur) or with respect to proposals to amend the Constitution through the legislative process.

Immigration Adjudication: The Missing Rule Of Law, Lenni B. Benson

Articles & Chapters

No abstract provided.

How To Salvage Article I: The Crumbling Foundation Of Our Republic, David Schoenbrod

Articles & Chapters

No abstract provided.

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

Journal Articles

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 …

Why Should Anyone Be An Originalist?, Jeffrey A. Pojanowski

Journal Articles

This essay offers a defense of originalist constitutional interpretation grounded on the moral purposes of positive law. This essay draws on the natural law tradition to argue that a reasonably just set of constitutional rules merits the interpreter’s moral obligation. This is so not because a given constitution is perfectly just, nor because the constitution “just is,” but rather because a practically reasonable person should promote the moral benefits of a posited and durable, framework of cooperation that passes the threshold of moral acceptability. And, because practical reason underdetermines what kind of constitution a polity should choose, many modern constitutions …

Constitutional Law—Fourth Amendment Search And Seizure—We've Got Ourselves In A Pickle: The Supreme Court Of Arkansas's Recent Expansion Of Fourht Amendment Rights May Have Unintended Consequences. Pickle V. State, 2015 Ark. 286, 466 S.W. 3d 410, Ben Honaker

University of Arkansas at Little Rock Law Review

No abstract provided.

Generation Gaps And Ties That Bind: Constitutional Commitments And The Framers' Bequest Of Unamendable Provisions, George Mader

Law Faculty Scholarship

“We the People.” That phrase conjures a vision of present-day U.S. citizens taking part of a continuous enterprise of constitutional development, each succeeding generation stepping into the shoes of those who framed and ratified the Constitution and, as the new performer in the role of “We the People,” reinterpreting a centuries-old role. Like those who created the role, we have power to modify the Constitution. But is each succeeding generation really allowed the same creative and expressive power to alter the role, to amend the Constitution?

The subject of this Article, in general, is the relationship between “We the People,” …

Chilling Rights, Toni M. Massaro

University of Colorado Law Review

A persistent trope in free speech doctrine is that overbroad laws chill protected expression and compromise the breathing room needed for a vibrant marketplace of ideas. The conventional restrictions on facial challenges of measures that sweep beyond legitimate regulatory zones are relaxed. Whether and to what extent this liberal approach to judicial review actually governs in free speech law and not elsewhere, and whether this is constitutionally or normatively defensible, have been the subject of considerable and exceptionally insightful scholarship. Yet the United States Supreme Court has given the best of this work slight notice.

This Article proposes a new …

Money Matters: Why The Ada's Undue Hardship Framework Could Save Casey And Legal Abortion In America, Brooke M. Garrett

University of Colorado Law Review

Since Roe v. Wade, the Supreme Court has upheld a woman's right to choose previability abortion on several occasions. Planned Parenthood of Southeastern Pennsylvania v. Casey was one such case that grew out of the Court's abortion jurisprudence and changed the way states regulated abortion. However, Casey's decision is fraught with ambiguities that have facilitated legislative overreach, judicial abuse, and inconsistent interpretation and application of the constitutional standard. In some states, legislatures have regulated a woman's right to choose to such an extent that it is a practical impossibility. Recently, the Supreme Court struck down Texas's House Bill 2-a highly …

Memo To Cannabis Regulators: The Expressions Hair Design Decision Does Not Limit Your Broad Authority To Restrict All Forms Of Discounting, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

No abstract provided.

Exemplary And Exceptional Confusion Under The Federal Rules Of Evidence, Dora W. Klein

Faculty Articles

This Article proposes that the final provisions of Rule 407 and 411, which provide a list of examples of permitted purposes for which a court may admit evidence, are asking for trouble--specifically, the trouble that courts will interpret the list not as examples, but as a specially enumerated, exhaustive list of exceptions.

Constitutional Economic Justice: Structural Power For "We The People", Martha T. Mccluskey

Journal Articles

Toward that goal, this essay proposes a structural principle of collective economic power for “we the people.” This principle is both consistent with longstanding Constitutional ideals and tailored to the current challenges of neoliberal ideology and policy. It develops two premises: first, it rejects the neoliberal economic ideology that defines legitimate power and freedom as individualized “choice” constrained by an existing political economy. Instead, this proposed principle recognizes that meaningful political economic freedom and power fundamentally consist of access to collective organizations with potential to create a “more perfect union” with better and less constrained options. Second, the post-Lochner principle …

Why The Late Justice Scalia Was Wrong: The Fallacies Of Constitutional Textualism, Ken Levy

Journal Articles

No abstract provided.

Out Of Ferguson: Misdemeanors, Municipal Courts, Tax Distribution And Constitutional Limitations, Henry Ordower, J. Onésimo Sandoval, Kenneth Warren

All Faculty Scholarship

The matter of police and municipal courts as revenue producers became increasingly prominent following Michael Brown’s death from a police shooting. This article considers the use of misdemeanors, especially traffic violations, for the purpose of collecting substantial portions of the annual operating budgets in municipalities in St. Louis County, Missouri. The article argues that the revenue raising function of traffic offenses has displaced their public safety and traffic regulation functions. The change in function from public safety to revenue suggests that the governing laws are no longer valid as exercise of policing power but must be reenacted under the taxing …

The Bipartisan Bayh Amendment: Republican Contributions To The Twenty-Fifth Amendment, Joel K. Goldstein

All Faculty Scholarship

It is appropriate that Senator Birch Bayh has been widely recognized as the author and person most responsible for the Twenty-Fifth Amendment. His work was indispensable, and he was helped by other Democrats and nonpartisan actors including the American Bar Association and John D. Feerick, among others. Yet the Amendment was also the product of bipartisan cooperation. Important provisions were based on work done during the administration of President Dwight D. Eisenhower, and Eisenhower and his Attorney General, Herbert Brownell, played important roles in supporting Bayh’s proposal as did other Republicans in and out of Congress. Republicans like Representative Richard …

State Action Doctrine And The Logic Of Constitutional Containment, Jud Mathews

Faculty Scholarship

Deriding the state action doctrine is one of the great pastimes of American constitutional law. It has been described as a shamble and "incoherent." On its face, the core concept seems straightforward enough constitutional rights are rights against the government. But what counts as the "state action" that triggers the protection of rights seems to shift, maddeningly, from case to case in the Supreme Court's state action jurisprudence.

In this article, I aim to help make some sense of why the state action doctrine has developed as it has by setting it in a comparative and historical frame. It can …

Brief Of Amici Curiae Glbtq Legal Advocates & Defenders Et Al. In Support Of Respondent In Gloucester County School Board V. G.G., Sjc 16-273, Jennifer Levi, Shannon P. Minter, Dean Richlin, Amanda Hainsworth, Rachel Hutchinson, Emily J. Nash

Faculty Scholarship

Amici brief submitted by the GLBTQ Legal Advocates & Defenders, the National Center for Lesbian Rights, and Foley Hoag, LLP. to the Supreme Court of the United States in the case of Gloucester County School Board v. G.G., by His Next Friend and Mother, Deirdre Grimm. The brief argues that the Court should reject the school board’s claim that privacy interests justify its discriminatory policy for three reasons. First, there is no basis for the creation of a new privacy right that justifies excluding transgender students from shared restrooms. Second, nothing in Title IX or its regulations supports the School …