Constitutional Law Commons^™

How Constitutional Norms Break Down, Josh Chafetz, David E. Pozen

Cornell Law Faculty Publications

From the moment Donald Trump was elected President, critics have anguished over a breakdown in constitutional norms. History demonstrates, however, that constitutional norms are perpetually in flux. The principal source of instability is not that these unwritten rules can be destroyed by politicians who deny their legitimacy, their validity, or their value. Rather, the principal source of instability is that constitutional norms can be decomposed—dynamically interpreted and applied in ways that are held out as compliant but end up limiting their capacity to constrain the conduct of government officials.

This Article calls attention to that latent instability and, in so …

Interpreting Constitutional Provisions In Tandem, Kiel Brennan-Marquez

Faculty Articles and Papers

No abstract provided.

Student Protests And Academic Freedom In An Age Of #Blacklivesmatter, Philip Lee

Faculty Publications

(Excerpt)

Student activism has been part of the fabric of American higher education since the eighteenth century. Indeed, some scholars have called it "as American as apple pie." From Harvard's "Great Butter Rebellion" in 1766 when students pushed for better food to the multicultural movement of today when students have demanded increased diversity in student, staff, faculty, and curriculum, students have long pressed to have their voices heard. Continuing in this tradition, we now live in an age of student activists who, by organizing through social media, are getting more people involved in political conversations and causes than would otherwise …

The New Governors: The People, Rules And Processes Governing Online Speech, Kate Klonick

Faculty Publications

Private online platforms have an increasingly essential role in free speech and participation in democratic culture. But while it might appear that any internet user can publish freely and instantly online, many platforms actively curate the content posted by their users. How and why these platforms operate to moderate speech is largely opaque.

This Article provides the first analysis of what these platforms are actually doing to moderate online speech under a regulatory and First Amendment framework. Drawing from original interviews, archived materials, and internal documents, this Article describes how three major online platforms — Facebook, Twitter, and YouTube — …

The Canon Wars, Anita S. Krishnakumar, Victoria F. Nourse

Faculty Publications

Canons are taking their turn down the academic runway in ways that no one would have foretold just a decade ago. Affection for canons of construction has taken center stage in recent Supreme Court cases and in constitutional theory. Harvard Dean John Manning and originalists Will Baude and Stephen Sachs have all suggested that principles of “ordinary interpretation” including canons should inform constitutional interpretation. Given this newfound enthusiasm for canons, and their convergence in both constitutional and statutory law, it is not surprising that we now have two competing book-length treatments of the canons—one by Justice Scalia and Bryan Garner, …

Brand Renegades Redux, Jeremy N. Sheff

Faculty Publications

In "Brand Renegades," 1 NYU J. Intell. Prop. & Ent. L. 128 (2011), I identified a new frontier in trademark enforcement: consumers who use branded products out of affiliation with some aspects of the image cultivated by the brand owner, but whose conspicuous consumption of the brand generates social meanings that are inconsistent with that image. As far-right political movements have built momentum in the consumer economies of the West, this type of "brand renegade" consumption has taken a much darker turn. Over the past two years, neo-Nazis and white supremacists have conspicuously adopted well-known brands in their bids to …

Punishing Criminals For Their Conduct: A Return To Reason For The Armed Career Criminal Act, Sheldon Evans

Faculty Publications

For over twenty-five years, the Armed Career Criminal Act has produced inconsistent results and has taxed judicial economy perhaps more than any other federal sentencing mechanism. This recidivist sentencing enhancement is meant to punish habitual criminals based on their numerous past crimes, but the Supreme Court’s application of the Act too often allows habitual criminals to escape the intended enhancement on a legal technicality. This comes as a result of the Court’s categorical approach, which punishes habitual criminal offenders based on the statutory elements of their past crimes rather than the conduct of their past crimes.

In an effort to …

New Majoritarian Constitutionalism, Joseph Landau

Faculty Scholarship

Ever since Alexander Bickel coined the phrase “countermajoritarian difficulty,” commentators have frequently described the Supreme Court as either a “majoritarian” or “counter-majoritarian” institution. In this heuristic dichotomy, the Justices either base constitutional law on their own independent and subjective interpretations or they rely on extrinsic indicators to determine constitutional meaning. In practice, however, this dichotomy is neither clearly evident, nor clearly applied, and a third approach—“New Majoritarian” Constitutionalism—has emerged. Under new majoritarian constitutionalism, the Court considers (1) the actual decisions of courts and juries; (2) legislative trends; (3) executive branch practices; and (4) geographic disparities within various jurisdictions. This model …

Authority-Based Mediation, Amos Gabrieli, Nourit Zimerman, Michal Alberstein

Cardozo Journal of Conflict Resolution

The paper describes and defines, for the first time, a unique mediation procedure-the authority-based mediation. This procedure was developed by one of the authors of this paper, and is characterized by handling highly complex conflicts in multi-party disputes, which are mostly referred to mediation by the court. Authoritybased mediation is conducted in an evaluative manner, combining in-depth legal discussion with a soft dialog that relates to emotions and interests and results in a settlement, usually following one extended mediation meeting.

Based on a combination of observations conducted in the mediation room and reflections of the mediator himself in relation to …

Sex, Lies, And Ultrasound, B. Jessie Hill

University of Colorado Law Review

No abstract provided.

Incredible Lies, Catherine J. Ross

University of Colorado Law Review

No abstract provided.

Categorizing Lies, David S. Han

University of Colorado Law Review

No abstract provided.

Sexual Abuse Of Juveniles In Correctional Facilities: A Violation Of The Prison Rape Elimination Act, Sara Medina

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Characterizing Constitutional Inputs, Michael Coenen

Journal Articles

No abstract provided.

Talking Trump And The Twenty-Fifth Amendment: Correcting The Record On Section 4, Joel K. Goldstein

All Faculty Scholarship

The first year of the presidency of Donald J. Trump brought attention to Section 4 of the Twenty-fifth Amendment, the constitutional provision that allows the Vice President and a Cabinet majority to transfer presidential powers and duties from a President who is “unable to discharge the powers and duties” of his office. Although the ensuing media discussion included many thoughtful contributions, it also produced many mistaken assertions by scholars, journalists and other commentators regarding the importance, scope, operation, and effect of Section 4. These mistakes are troubling because they may produce enduring misunderstanding regarding a provision designed to handle some …

Legal Vs. Factual Normative Questions & The True Scope Of Ring, Emad H. Atiq

Cornell Law Faculty Publications

When is a normative question a question of law rather than a question of fact? The short answer, based on common law and constitutional rulings, is: it depends. For example, if the question concerns the fairness of contractual terms, it is a question of law. If it concerns the reasonableness of dangerous risk-taking in a negligence suit, it is a question of fact. If it concerns the obscenity of speech, it was a question of fact prior to the Supreme Court's seminal cases on free speech during the 1970s, but is now treated as law-like. This variance in the case …

Resolving The Circuit Split Over Consent Based Searches In Shared Living Spaces, Christopher Grimaldi

Cardozo International & Comparative Law Review

The note argues that the police, not citizens, should bear the responsibility of resolving ambiguities in consent to search cases under the Fourth Amendment. It advocates for a solution that aligns with Supreme Court precedent, particularly Rodriguez and Salinas-Cano, to ensure constitutional protections while maintaining efficient law enforcement. The proposed approach emphasizes the importance of police inquiry to clarify authority over jointly used property, balancing individual privacy rights with practical law enforcement needs.

The Right Of Publicity: Privacy Reimagined For New York?, Jennifer Rothman

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Abandoning Realization And The Transition Tax: Toward A Comprehensive Tax Base, Henry Ordower

All Faculty Scholarship

The Tax Cuts and Jobs Act of 2017 imposed a tax, the “transition tax,” on as much as 31 years of undistributed, accumulated corporate income. This article focus on that transition tax as it evaluates thefunction and constitutionality of the tax and considers whether the transition tax might serve as a model for addressing the broader problem of deferred income in the United States. The article views the transition taxas joining the expatriation tax and other mark to market inclusion provisions in abandoning any pretext that there is continued vitality in the realization principle as something more compelling than any …

Teaching The Transformative Fourteenth Amendment, Joel K. Goldstein

All Faculty Scholarship

If the constitutional law casebooks are a reliable guide, most teach the Fourteenth Amendment, like other parts of the Constitution, by presenting separately the various doctrinal topics it has raised.[1] The principal clauses of the Amendment, or really those in the second sentence of Section 1[2]—the Equal Protection, Due Process, and Privileges or Immunities Clauses—are generally extracted from its text and classes are structured around the leading cases decided under each and the resulting doctrine. Cases under the Equal Protection or Due Process Clause may be further separated. Based on the class of claimants, for instance, the cases involving racial …

Keeping The Rule Of Law Simple: Comments On Gowder, The Rule Of Law In The Real World, Chad Flanders

All Faculty Scholarship

Let me start by just stating my experience of reading The Rule of Law in the Real World¹ because it will help make sense of the structure of my remarks. The first third of the book: I am utterly convinced, even blown away, by the elegance and persuasiveness of the argument and the analysis; even when there is merely a summary, I am helped and bettered by it. The second third of the book: I am inclined, based on the enormous goodwill generated by the first third of the book to accept-almost uncritically-the historical discussion and the conclusions drawn …

In (Partial) Praise Of (Some) Compromise: Comments On Tebbe, Chad Flanders

All Faculty Scholarship

I want to begin by sketching a point of view that, at best, makes only an implicit showing in Tebbe's persuasive, thoughtful, and challenging book. That viewpoint looks something like this:2 religion is unique, not just in substance but also in form. Start with substance: religion is a way of looking at the world as not exhausted by secular values or concerns; for money, prestige, or for "utility" broadly construed, or even exhausted by morality. Religion asks, repeatedly of those who believe in it, to do seemingly impossible things. It counts on miracles. Religion sees the world and our lives, …

Insubstantial Burdens, Chad Flanders

All Faculty Scholarship

In order to win a claim under the Religious Freedom Restoration Act (or “RFRA”), you have to show that your religious beliefs have been “substantially burdened” by a governmental law or practice. In her dissent to Hobby Lobby, Justice Ginsburg accused the majority of taking an approach to defining “substantial burden” that abdicated the judicial role in determining what a substantial burden was. In her dissent to the denial of cert in the Wheaton case, Sotomayor advanced the same line. “I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” she …

Sustaining Collective Self-Governance And Collective Action: A Constitutional Role Morality For Presidents And Members Of Congress, Neil S. Siegel

Faculty Scholarship

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution …

Undocumented Citizens Of The United States: The Repercussions Of Denying Birth Certificates, Anna L. Lichtenberger

St. Mary's Law Journal

Abstract forthcoming

Free Speech And Generally Applicable Laws: A New Doctrinal Synthesis, Dan T. Coenen

Scholarly Works

A longstanding mystery of constitutional law concerns how the Free Speech Clause interacts with “generally applicable” legal restrictions. This Article develops a new conceptual framework for working through this puzzle. It does so by extracting from prior Supreme Court rulings an approach that divides these restrictions into three separate categories, each of which (at least presumptively) brings into play a different level of judicial scrutiny. An example of the first and most closely scrutinized category of generally applicable laws—that is, laws that place a “direct in effect” burden on speech—is provided by breach-of-the-peace statutes. These laws are generally applicable because …

A Reformed Liberalism: Michael Mcconnell’S Contributions To Christian Jurisprudence, Nathan Chapman

Scholarly Works

Michael McConnell is one of the most influential constitutional scholars of the past thirty years. He has written a great deal about religious liberty, but relatively little about how his own religious beliefs may relate to his constitutional jurisprudence. This essay is the first to explore the connection between McConnell’s religious views and scholarship. The essay engages with a short piece by McConnell that sketches the outlines of a “reformed liberalism.” McConnell argued that reformed Christian theology is compatible with the classical liberalism that animated the framing of the U.S. Constitution. Though he did not develop this account into a …

Qui Tam Litigation Against Government Officials: Constitutional Implications Of A Neglected History, Randy Beck

Scholarly Works

The Supreme Court concluded twenty-five years ago, in Lujan v. Defenders of Wildlife, that uninjured private plaintiffs may not litigate “generalized grievances” about the legality of executive branch conduct. According to the Lujan Court, Congress lacked power to authorize suit by a plaintiff who could not establish some “particularized” injury from the challenged conduct. The Court believed litigation to require executive branch legal compliance, brought by an uninjured private party, is not a “case” or “controversy” within the Article III judicial power and impermissibly reassigns the President’s Article II responsibility to “take Care that the Laws be faithfully executed.” The …

Submarine Statutes, Christian Turner

Scholarly Works

I define as “submarine statutes” a category of statutes that affect the meaning of later-passed statutes. A submarine statute calls for courts to apply future statutes differently than they would have otherwise. An example is the Religious Freedom Restoration Act, which requires, in some circumstances, exemptions for religious exercise from otherwise compulsory statutory requirements. A new statute can only be understood if its interaction with RFRA is also understood. While scholars have debated the constitutionality of some statutes like these, mainly analyzing the legitimacy of their entrenching quality, I argue that submarine statutes carry an overlooked cost. Namely, they add …

Favoring The Press, Sonja R. West

Scholarly Works

In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court caught the nation’s attention by declaring that corporations have a First Amendment right to independently spend unlimited amounts of money in political campaigns. The Court rested its 5-4 decision in large part on a concept of speaker-based discrimination. In the Court’s words, “the Government may commit a constitutional wrong when by law it identifies certain preferred speakers.”

To drive home its point that speaker-based distinctions are inherently problematic, the Court focused on one type of speaker distinction — the treatment of news media corporations. …