Constitutional Law Commons^™

Journal Staff

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Fair Use And First Amendment: Without Fair Use, What Would You Freely Speak About?, Adam Blaier

Pace Intellectual Property, Sports & Entertainment Law Forum

The question this paper tries to answer is: Without fair use, what would you freely speak about? This paper will seek to demonstrate that the Copyright Clause’s Fair Use doctrine, and the First Amendment are cousins who help each other, rather than enemies sworn to destroy each other as some believe. First I will give a brief overview and history of each doctrine. Next I will speak about three areas where I believe fair use and the First Amendment cross paths extensively. These areas are: (1) school/education; (2) social media and news; and (3) sports images/broadcasting. Finally, I will demonstrate …

Fourth & Inches: Marking The Line Of Athletes’ Free Speech (A Colin Kaepernick Inspired Discussion), Ryan J. Mcginty

Pace Intellectual Property, Sports & Entertainment Law Forum

This note addresses the ongoing controversial stance that was ignited when Colin Kaepernick refused to stand for the playing of the national anthem in protest of what he deems are wrongdoings against African Americans and minorities in the United States. The scope of this note does not surround Kaepernick himself, but rather the professional NFL football player in general. Specifically, players are entitled to the full rights of free expression and free speech as human beings and public figures, up and until the line where that right is abused on the field or “on the job,” thereby threatening an increase …

"We Are All Textualists Now": The Legacy Of Justice Antonin Scalia, Judge Diarmuid F. O'Scannlain

St. John's Law Review

(Excerpt)

One of my favorite extra-judicial activities is meeting with law students, and it is a pleasure to be with you today. But it is a special privilege to come back to the Jamaica campus of St. John’s College from which I graduated 60 years ago, long before the Law School had moved here from Schermerhorn Street in Brooklyn, and when there was only one building on this former golf course.

I was honored to call Justice Scalia a role model and friend. What I hope to convey to you today, however, is the effect Justice Scalia’s tenure on the …

Free Speech In Wartime: Sedition Acts During The Presidencies Of John Adams And Woodrow Wilson, Juliana M. Hafner

Honors College Theses

This paper analyzes two time eras in which the United States federal government created and passed two sedition acts: in 1798 with President John Adams and in 1918 with President Woodrow Wilson. Both ultimately affected American’s freedom of speech during wartime, as well as during times of peace. This analysis addresses the specific acts themselves, the overall political atmosphere in each time period, including who were considered the country’s “enemies,” in-depth consideration of one court case per era, the government and public reaction to the acts, and the overall impact that both eras had on the development of American Constitutionalism. …

“Safe Spaces” And The Educational Benefits Of Diversity, Vinay Harpalani

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Loyal Denominatorism And The Fourteenth Amendment: Normative Defense And Implications, Christopher R. Green

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Procedural Checks: How The Constitution (And Congress) Control The Power Of The Three Branches, Todd David Peterson

Duke Journal of Constitutional Law & Public Policy

No abstract provided.

Why Deporting Immigrants For “Crimes Involving Moral Turpitude” Is Now Unconstitutional, Lindsay M. Kornegay, Evan Tsen Lee

Duke Journal of Constitutional Law & Public Policy

In the best of times, immigrants should only be deported according to the rule of law and not by the whim of executive branch officials. Now, it is imperative. Yet the statute authorizing removal of immigrants for “crimes involving moral turpitude” invites officials to base their prosecutorial choices on political or personal views. As a result, defense attorneys advising their clients on the immigration consequences of pleas have no basis for prediction. Although the Supreme Court long ago rejected the argument that the “moral turpitude” clause was void for vagueness, one of the Court’s most recent decisions now makes that …

January 14, 2018: What President Trump Is Accomplishing, Bruce Ledewitz

Hallowed Secularism

Blog post, "What President Trump is Accomplishing“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Congressional Control Of Presidential Pardons, Glenn H. Reynolds

Nevada Law Journal Forum

The reach of the presidential pardon power has been much in the news of late (for a variety of reasons). It is well established that the pardon power is plenary; that it can be exercised in advance of formal criminal charges being filed; and that it does not extend to state crimes; but there remain many unsettled (and unsettling) questions. Can a president pardon himself? Can a pardon, though perfectly lawful in itself, constitute obstruction of justice? Can a president use a pardon, issued in advance of criminal activity, to insulate an actor from criminal liability before the criminal act …

Rwu First Amendment Blog: Diana Hassel's Blog: How Will Supreme Court Slice Wedding Cake Case 01-11-2018, Diana Hassel

Law School Blogs

No abstract provided.

Martin Luther King Jr. On Economy, Ecology, And Civilization: Toward A Mlk Jr-Inspired Ecotheology, Theodore Walker

Perkins Faculty Research and Special Events

This MLK Jr-inspired ecotheology [eco-theology] connects “economics,” “ecology,” and “ecological civilization” to the theological ethics of Rev. Dr. Martin Luther King Jr.

Though we often remember King primarily as a domestic civil rights leader; attention to King’s book—Where Do We Go from Here: Chaos or Community? (1967) reveals that he advanced a global ethics. King called for replacing recourse to war with nonviolent resistance to evil, and for abolishing poverty throughout “the world house.” He prescribed that we “civilize ourselves by the total, direct and immediate abolition of poverty.” King was concerned with civilizing “the world house” (house …

January 9, 2018: Dangerous Hypocrisy On The Right, Bruce Ledewitz

Hallowed Secularism

Blog post, “Dangerous Hypocrisy on the Right“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Hb 434 - Eminent Domain, Ashley M. Bowcott, Derek M. Schwahn

Georgia State University Law Review

The Act amends Georgia’s eminent domain laws by providing an exception to the general rule that condemnations cannot be converted to any use, other than a public use, for twenty years. The Act creates a new procedure which requires the condemnor to petition the jurisdiction’s superior court to determine whether the property is blighted property. Additionally, the condemnor must provide notice to all owners of the alleged blighted property. If the court finds the land is blighted property, the condemnor must file a petition to condemn the property according to the established procedure set forth in Article 3 Chapter 2 …

Hb 280 - Campus Carry, Taylor Morgan Koshak, Nicholas J. Roger

Georgia State University Law Review

The Act broadens lawful gun owners’ rights by allowing weapons carry license holders to carry concealed guns on property owned or leased by public institutions of postsecondary education. The Act creates exceptions for sporting events, student housing, childcare spaces, classes for a college and career academy and other specialized schools, classrooms for dual enrollment programs, and spaces for administrative disciplinary proceedings. The law creates a misdemeanor penalty for noncompliance, and provides definitions for clarification.

January 7, 2018: The Democrats: Stupid Again, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Democrats: Stupid Again" discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 6, 2018: Greetings From San Diego, Bruce Ledewitz

Hallowed Secularism

Blog post, “Greetings from San Diego“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Soda Taxes As A Legal And Social Movement, David A. Dana, Janice Nadler

Northwestern Journal of Law & Social Policy

No abstract provided.

Rethinking The Dormant Commerce Clause?: Climate Change And Food Security, Michael Barsa

Northwestern Journal of Law & Social Policy

No abstract provided.

The Resurrection Of Trust In American Law And Public Discourse, Bruce Ledewitz

Ledewitz Papers

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

Burns V Corbett: What If The High Court Had Decided The Implied Freedom Of Political Communication Issue?, A. Keith K. Thompson

The University of Notre Dame Australia Law Review

Because the Commonwealth has never fulfilled its promise to domesticate the International Covenant on Civil and Political Rights 1966 (ICCPR), human rights in Australia remain an uncertain blend of federal and state anti-discrimination statutes, common law rights and constitutional implications. The litigation surrounding Tess Corbett’s media interview in Hamilton, Victoria when she was campaigning as a candidate in the 2013 federal election, highlights that uncertainty. Should her statements have been protected because the voters in Wannon, Victoria needed to know her views so as to vote in an informed way, or did New South Wales’ interest in stamping out the …

When Should Employers Be Liable For Factoring Biased Customer Feedback Into Employment Decisions?, Dallan F. Flake

Law Faculty Scholarship

In today’s customer-centric business environment, firms seek feedback from consumers seemingly at every turn. Firms factor customer feedback into a host of decisions, including employment-related decisions such as who to hire, promote, and fire; how much to pay employees; and what tasks to assign them. Increasingly, researchers are discovering that customer feedback is often biased against certain populations, such as women and racial minorities. Sometimes customers explicitly declare their biases, but more often their prejudices are harder to detect — either because they intentionally hide their biases in their ratings or because the customers do not realize their own biases, …

Petition For Writ Of Certiorari, Morrow V. Ford, Leslie C. Griffin, Marci A. Hamilton

Supreme Court Briefs

No abstract provided.

Disclaiming Property, Michael Pappas

Faculty Scholarship

Can Congress pick and choose when it must follow the Constitution? One would expect not, and yet the Supreme Court has allowed it to do so. In multiple statutory programs, Congress has disclaimed constitutional property protections for valuable interests that otherwise serve as property. The result is billions of dollars’ worth of “disclaimed property” that can be bought, sold, mortgaged, or leased, but that can also be revoked at any moment without due process or just compensation.

Disclaimed property already represents a great source of value, and property disclaimers are at the core of major recent policies ranging from natural …

Multiracial Malaise: Multiracial As A Legal Racial Category, Taunya L. Banks

Faculty Scholarship

One byproduct of increased interracial marriages post Loving is a growing number of multiracial children. This cohort of multiracials tends to overshadow older and larger generations of multiracial people whose genealogical mixture is more distant. Some interracial couples, their multiracial children and others support a multiracial category on the U.S. Census. Proponents argued that multiracial individuals experience a unique type of discrimination that warrants treating them as a separate racial category. This article concedes that multiracial individuals should enjoy the freedom to self-identify as they wish, and like others, be protected by anti-discrimination law. It concludes, however, that current arguments …

Cybersurveillance Intrusions And An Evolving Katz Privacy Test, Margaret Hu

Scholarly Articles

To contextualize why a new approach to the Fourth Amendment is essential, this Article describes two emerging cybersurveillance tools. The first Cybersurveillance tool, Geofeedia, has been deployed by state and local law enforcement. Geofeedia uses a process known as "geofencing" to draw a virtual barrier around a particular geographic region, and then identifies and tracks public social media posts within that region for predictive policing purposes. The second tool, Future Attribute Screening Technology (FAST), is under development by the United States Department of Homeland Security (DHS). FAST is another predictive policing tool that analyzes physiological and behavioral signals with the …

The Resurrection Of Trust In American Law And Public Discourse, Bruce Ledewitz

Ledewitz Papers

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

“Show Me Your Papers”: An Equal Protection Violation Of The Rights Of Latino Men In Trump’S America, Monica Chawla

Touro Law Review

No abstract provided.

Analyzing Justice Cardozo’S Opinions On The Constitutionality Of The New Deal, Robert J. Pushaw Jr

Touro Law Review

No abstract provided.