Constitutional Law Commons^™

Fifty Years Of Foia In Operation, 1967-2017, Tuan N. Samahon

Working Paper Series

No abstract provided.

No Cake For You: Discrimination, Dignity, And Refusals To Serve, William D. Araiza

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Lethal Injection Or Lethal Litigation: Florida's Amended Lethal Injection Protocol Opens The Door For Cries Of Cruel And Unusual Punishment, Cynthia Ventura

St. Thomas Law Review

In Florida, lethal injection has been the primary method of execution since the 1990s. The Florida Department of Corrections recently amended its protocol by replacing all three drugs previously used. The first administered lethal dose is now etomidate, an anesthetic that has never been used in the United States as a lethal injection drug. This Comment discusses the lack of empirical research available to support the state of Florida's use of etomidate as an appropriate method of rendering a prisoner unconscious prior to administering the second and third injections. First, this Comment will provide a brief background of the history …

On Litigating Constitutional Challenges To The Federal Supermax: Improving Conditions And Shining A Light, Laura L. Rovner

Sturm College of Law: Faculty Scholarship

Prisons and jails are the most invisible part of the American criminal justice system. In this hidden world of punishment, no prison is more shrouded in secrecy than the federal Bureau of Prisons’ only “supermax” prison — the U.S. Penitentiary-Administrative Maximum known as ADX. Located in a remote area of Colorado, ADX has been described by one journalist as “a black site on American soil.” The men at ADX are held in solitary confinement, locked in cells the size of a parking space for twenty-three hours a day, with little or no contact with other people. Some of them have …

Slave Narratives And The Sentencing Court, Lindsey Webb

Sturm College of Law: Faculty Scholarship

The United States incarcerates a greater percentage of its population than any other country in the world. Courts are substantially more likely to sentence African American and Latino people to prison than white people in similar circumstances, and African Americans in particular represent a grossly disproportionate percentage of the incarcerated population. Violence and other ills endemic to jails and prisons are thus disproportionately experienced by people of color.

This Article argues that criminal defense lawyers should explicitly address conditions of confinement at sentencing. In doing so, a criminal defense lawyer has the opportunity to serve as both advocate and abolitionist. …

Legal Consciousness As Race Consciousness: Expansion Of The Fourth Amendment Seizure Analysis Through Objective Knowledge Of Police Impunity, Lindsey Webb

Sturm College of Law: Faculty Scholarship

Encounters between police officers and members of the community are deeply influenced by race. Yet when courts assess whether police officers have complied with the Fourth Amendment, they explicitly exclude consideration of the ways in which the police-civilian interaction was influenced by racial bias, assumptions, and fear. In determining whether law enforcement officers seized a civilian, for example, courts look to the objective circumstances of the event, such as the number of officers involved, whether police weapons were drawn, and the tone of voice the officers used. They then assess whether, under such circumstances, a reasonable person would feel free …

2017 Annual Survey: Recent Developments In Sports Law, Jordan Lysiak, Katherine Hampel

Marquette Sports Law Review

None

Isonomy, Austerity, And The Right To Choose Counsel, Janet Moore

Faculty Articles and Other Publications

People who can afford to hire criminal defense attorneys have a Sixth Amendment right to choose a lawyer who is qualified, available, and free from conflicts of interest. The same right to choose counsel is routinely denied to people who need government-paid defense lawyers because they cannot afford to hire attorneys. In prior work, I invoked democratic theory to argue that this de jure discrimination blocks constitutional law formation by poor people and should be eliminated. This Article extends the analysis by explaining how a different theoretical approach—one grounded in libertarian commitments to private enterprise and austerity in public funding—shaped …

State Standing In United States V. Texas: Opening The Floodgates To States Challenging The Federal Government Or Proper Federalism?, Bradford Mank

Faculty Articles and Other Publications

In United States v. Texas, the Supreme Court by an equally divided vote, 4 to 4, affirmed the decision of the U.S. Fifth Circuit Court of Appeals that the State of Texas had Article III standing to challenge in federal court the Department of Homeland Security’s (DHS) directive establishing a Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program to grant lawful immigration status to millions of undocumented immigrants. A serious question is whether state standing in this case will open the floodgates to allow states to challenge virtually every federal executive action. On the other hand, …

The Growing Gender/Religion Divide, Marcia L. Mccormick

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Control The Casinos And Stop The Dogs: Florida’S 2018 Proposed Constitutional Amendments, Robert Jarvis

Faculty Scholarship

No abstract provided.

"Natural Born Citizen", Thomas H. Lee

American University Law Review

No abstract provided.

Federal Circuit Jurisdiction: Looking Back And Thinking Forward, Timothy B. Dyk

American University Law Review

No abstract provided.

The Posse Comitatus Act And The Fourth Amendment's Exclusionary Rule, Patrick Walsh, Paul Sullivan

American University National Security Law Brief

No abstract provided.

How Cybersecurity Regulation For The Smart Grid Could Upset The Current Balance Of Federal And State Jurisdiction In Electricity Regulation, Cynthia Anderson

American University National Security Law Brief

No abstract provided.

From The Italian Mafia To Suppressing Societal Challenges: The Evolution Of Federal Criminal Rico And The Constitutional Objections Against It, 51 J. Marshall L. Rev. 647 (2018), Bianca Ciarroni

UIC Law Review

No abstract provided.

Without Evidence: Joel Richard Paul’S John Marshall, Kevin C. Walsh

Scholarly Articles

John Marshall—soldier, lawyer, legislator, statesman, and fourth chief justice of the United States—led a long public life that spanned from the American Revolution to the rise of Jacksonian democracy. Joel Richard Paul’s full-length biography takes the reader from Marshall’s birth on the Virginia frontier in 1755, to his death in 1835 at the head of an American judiciary that had gained significantly in power and respect because of Marshall’s leadership over the preceding 34 years.

The "Irish Born" One American Citizenship Amendment, Kevin C. Walsh

Scholarly Articles

Our Constitution has a deferred maintenance problem because we have fallen out of the habit of tending to its upkeep ourselves. The silver lining is a double benefit from any constitutional maintenance projects that we undertake now. These projects are good not only for what they do to our Constitution, but also for making us exercise self-government muscles that have atrophied from civic sloth.

Fortunately, the time has never been better to repeal one of our Constitution’s most pointlessly exclusionary provisions. The President of the United States is married to a naturalized citizen. And nobody can legitimately question the patriotism …

Constitutional Anomalies Or As-Applied Challenges? A Defense Of Religious Exemptions, Mark L. Rienzi

Scholarly Articles

In the wake of Burwell v. Hobby Lobby and now in anticipation of Craig v. Masterpiece Cakeshop, Inc., the notion that religious exemptions are dangerously out of step with norms of Constitutional jurisprudence has taken on a renewed popularity. Critics increasingly claim that religious exemptions, such as those available prior to Employment Division v. Smith and now available under the federal Religious Freedom Restoration Act (RFRA), are a threat to basic fairness, equality, and the rule of law. Under this view, exemptions create an anomalous private right to ignore laws that everyone else must obey, and such a scheme …

Who Are “Officers Of The United States”?, Jennifer L. Mascott

Scholarly Articles

For decades courts have believed that only officials with “significant authority” are “Officers of the United States” subject to the Constitution’s Article II Appointments Clause requirements. But this standard has proved difficult to apply to major categories of officials. This Article examines whether “significant authority” is even the proper standard, at least as that standard has been applied in modern practice. To uncover whether the modern understanding of the term “officer” is consistent with the term’s original public meaning, this Article uses two distinctive tools: (i) corpus linguistics-style analysis of Founding-era documents and (ii) examination of appointment practices during the …

Illuminating The Dark Act, Samantha Ricci

UC Law Constitutional Quarterly

Labeling is a primary method of providing information about food such as the production, ingredients, and nutrition facts-but what happens when labels become less accessible? This Note explores the justice implications of the first genetically modified organism (GMO) labeling bill, The Safe and Accurate Food Labeling Act, or known to opponents as The DARK Act (Denying Americans the Right to Know). This Act allows for a "QR" code, website, or 1-800 number to constitute a label for GMO labeling requirements. This Act discriminates against 100 million Americans who do not own smart phones or have access to Wi-Fi or data, …

Police Ignorance And Mistake Of Law Under The Fourth Amendment, Eang L. Ngov

Faculty Scholarship

No abstract provided.

The Complexities Of Human Rights And Constitutional Reform In The United Kingdom; Brexit And A Delayed Bill Of Rights: Informing (On) The Process, Katie Boyle, Leanne Cochrane

Northwestern Journal of Human Rights

The United Kingdom’s politicised and contested human rights framework has come under increasing pressure during recent periods of constitutional and political instability. The UK 2016 referendum on membership of the European Union, the delayed repeal of the Human Rights Act 1998 and the proposals to enact a British Bill of Rights have all shaped the discourse at the national level around decisions to retain rights (or not) rather than progressively improve the human rights structure. The European Union and Council of Europe human rights frameworks act as important pillars of human rights and democracy under the UK constitution and each …

School Desegregation 2.0: What Is Required To Finally Integrate America's Public Schools, Jim Hilbert

Northwestern Journal of Human Rights

No abstract provided.

Arbiters Of Decency: A Study Of Legislators' Eighth Amendment Role, Aliza Plener Cover

Articles

Within Eighth Amendment doctrine, legislators are arbiters of contemporary values. The United States Supreme Court looks closely to state and federal death penalty legislation to determine whether a given punishment is out of keeping with “evolving standards of decency.” Those who draft, debate, and vote on death penalty laws thus participate in both ordinary and higher lawmaking. This Article investigates this dual role.

We coded and aggregated information about every floor statement made in the legislative debates preceding the recent passage of bills abolishing the death penalty in Connecticut, Illinois, and Nebraska. We categorized all statements according to their position …

The Bumpy Road To The Supreme Court: Does The Second Amendment Prevent States From Prohibiting Ownership Of Assault-Style Rifles And High-Capacity Magazines?, James B. Astrachan

University of Baltimore Law Review

No abstract provided.

Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati

Faculty Scholarship

On June 11, 2017, Puerto Rico held a referendum on its legal status. Although turnout was low, 97% of ballots favored statehood, rather than independence or the status quo. The federal government, however, has financial and political reasons to resist this preference: Puerto Rico would bring with it a massive, unpayable debt, and the potential to swing the current balance of power in Congress.

The tension between Puerto Rico’s possible desire to pull closer to the mainland and Congress’s presumptive desire to hold it at arm’s length raises at least two important legal questions. Could Congress expel Puerto Rico by …

The Original Theory Of Constitutionalism, David Singh Grewal, Jedediah Purdy

Faculty Scholarship

The U.S. Constitution embodies a conception of democratic sovereignty that has been substantially forgotten and obscured in today’s commentary. Recovering this original idea of constitution-making shows that today’s originalism is, ironically, unfaithful to its origins in an idea of self-rule that prized both the initial ratification of fundamental law and the political community’s ongoing power to reaffirm or change it. This does not mean, however, that living constitutionalism better fits the original conception of democratic self-rule. Rather, because the Constitution itself makes amendment practically impossible, it all but shuts down the very form of democratic sovereignty that authorizes it. No …

Presidential Control Over International Law, Curtis A. Bradley, Jack L. Goldsmith

Faculty Scholarship

Presidents have come to dominate the making, interpretation, and termination of international law for the United States. Often without specific congressional concurrence, and sometimes even when it is likely that Congress would disagree, the President has developed the authority to:

(a) make a vast array of international obligations for the United States, through both written agreements and the development of customary international law;

(b) make increasingly consequential political commitments for the United States on practically any topic;

(c) interpret these obligations and commitments; and

(d) terminate or withdraw from these obligations and commitments.

While others have examined pieces of this …

Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel

Faculty Scholarship

This symposium Essay argues that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a …