Constitutional Law Commons^™

Educational Gerrymandering: Money, Motives, And Constitutional Rights, Derek Black

Faculty Publications

Public school funding plummeted following the Great Recession and failed to recover over the next decade, prompting strikes and protests across the nation. Courts did almost nothing to stop the decline. While a majority of state supreme courts recognize a constitutional right to an adequate or equal education, they increasingly struggle to enforce the right. That right could be approaching a tipping point. Either it evolves, or risks becoming irrelevant.

In the past, courts have focused almost exclusively on the adequacy and equity of funding for at-risk students, demanding that states provide more resources. Courts have failed to ask the …

A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko

Cornell Law Review

This Article is the first to use computational methods to investigate the ideological and partisan structure of constitutional discourse outside the courts. We apply a range of machine- learning and text-analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors from 1873 to 2016, as well as a collection of more recent newspaper editorials. Among other findings, we demonstrate (1) that constitutional discourse has grown increasingly polarized over the past four decades; (2) that polarization has grown faster in constitutional discourse than in nonconstitutlonal discourse; (3) that conservative-leaning speakers have driven …

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Buffalo Law Review

No abstract provided.

Animal Rights: Time To Start Unpacking What Rights And For Whom, Jane Kotzmann, Nick Pendergrast

Mitchell Hamline Law Review

No abstract provided.

“Armed And Dangerous” A Half Century Later: Today’S Gun Rights Should Impact Terry’S Framework, Alexander Butwin

Fordham Law Review

Over fifty years ago, in Terry v. Ohio, the U.S. Supreme Court established a two-part framework in which police officers may, without a warrant, stop and search an individual for weapons without violating the Fourth Amendment’s protections against unreasonable searches and seizures. Officers must (1) suspect that criminal activity has occurred, or will soon occur, and (2) have a reasonable fear that the individual is “armed” and poses a threat to the responding officers or to others—i.e., “dangerous.” The second prong’s exact meaning is disputed and has created a split among the circuits as to whether merely being “armed” …

Protecting Health Information In Utero: A Radical Proposal, Luke Isaac Haqq

Journal of Law and Policy

This Article introduces an underappreciated space in which protected health information (“PHI”) remains largely unprotected, a fact that will become only more problematic as clinical medicine increasingly turns to genomics. The past decade has seen significant advances in the prevention of birth defects, especially with the introduction of clinical preconception, prenatal, and neonatal genomic sequencing. Parental access to the results of embryonic and fetal clinical sequencing is critical to reproductive autonomy; results can provide parents with important considerations in determining whether to seek or avoid conception, as well as in deciding whether to carry a pregnancy to term. The information …

The Long Road Back To Skokie: Returning The First Amendment To Mask Wearers, Rob Kahn

Journal of Law and Policy

When the Seventh Circuit upheld the First Amendment right of Nazis to march in Skokie, Illinois in 1978, the protection of mask wearers was not far behind. Since then, doctrinal paths have diverged. While the Supreme Court continues to protect hate speech, mask wearing has been increasingly placed outside First Amendment protection. This article seeks to get to the bottom of this doctrinal divergence by addressing the symbolic purposes of mask bans—rooted in repudiating the Ku Klux Klan—as well as the doctrinal steps taken over the past forty years to restrict the First Amendment claims of mask wearers. It also …

“Disturbing Schools” Laws: Disturbing Due Process With Unconstitutionally Vague Limits On Student Behavior, Rachel Smith

Journal of Law and Policy

For over a century, the United States Supreme Court has held, in sum and substance, that students do not “shed their constitutional rights . . . at the schoolhouse gate.” In practice, however, while not shed entirely, many of those rights have been increasingly limited. “Disturbing Schools” Laws subject students to criminal charges for behaving in a distracting or obnoxious manner on campus—behavior which can easily be conceptualized as typical adolescent behavior. Challenges to Disturbing Schools Laws have resulted in opposing outcomes across Circuit Courts. This Note discusses how students may use the Fourth Circuit case Kenny v. Wilson to …

The President And Nuclear Weapons: Authorities, Limits, And Process, Mary B. Derosa, Ashley Nicolas

Georgetown Law Faculty Publications and Other Works

There is no more consequential decision for a president than ordering a nuclear strike. In the Cold War, the threat of sudden nuclear annihilation necessitated procedures emphasizing speed and efficiency and placing sole decision-making authority in the president’s hands. In today’s changed threat environment, the legal authorities and process a U.S. president would confront when making this grave decision merit reexamination. This paper serves as a resource in the national discussion about a president’s legal authority and the procedures for ordering a nuclear strike, and whether to update them.

From Decarceration To E-Carceration, Chaz Arnett

Cardozo Law Review

Each year, millions of Americans experience criminal justice surveillance through electronic ankle monitors. These devices have fundamentally altered our understanding of incarceration, punishment, and the extent of the carceral state, as they are increasingly offered as moderate penal sanctions and viable solutions to the problem of mass incarceration. They purportedly enable decarceration, albeit with enhanced surveillance in the community as the compromise. Proponents of the devices tout the public safety and cost benefits while stressing the importance of depopulating prisons and returning individuals to theircommunities. In recent years, an oppositional movement has developed, focused on highlighting the social harms of …

The Right To Stay: The Suspension Clause, Constitutional Avoidance, And Federal District Court Jurisdiction To Grant Stays Of Removal Despite 8 U.S.C. Sec. 1252(G), Yael Ben Tov

Cardozo Law Review

No abstract provided.

The Case Against Expanding Defamation Law, Yonathan A. Arbel, Murat C. Mungan

Faculty Scholarship

It is considered axiomatic that defamation law protects reputation. This proposition—commonsensical, pervasive, and influential—is faulty. Underlying this fallacy is the failure to appreciate audience effects: the interaction between defamation law and members of the audience.

Defamation law seeks to affect the behavior of speakers by making them bear a cost for spreading untruthful information. Invariably, however, the law will also affect members of the audience, as statements made in a highly regulated environment tend to appear more reliable than statements made without accountability. Strict defamation law would tend to increase the perceived reliability of statements, which in some cases can …

November 28, 2019: Happy Thanksgiving, Bruce Ledewitz

Hallowed Secularism

Blog post, “Happy Thanksgiving“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

A Call To Clarify The "Scope Of Authority" Question Of Qualified Immunity, Pat Fackrell

Cleveland State Law Review

It is no secret the doctrine of qualified immunity is under immense scrutiny. Distinguished jurists and scholars at all levels have criticized the doctrine of qualified immunity, some calling for it to be reconsidered or overruled entirely.

Amidst this scrutiny lies uncertainty in the doctrine’s application. Specifically, the federal courts of appeal are split three ways on the question of whether an official exceeding the official’s scope of authority under state law at the time of the alleged constitutional violation can successfully assert qualified immunity. Some courts of appeal do not require the official to demonstrate he acted within the …

Virginia Uranium, Inc. V. Warren, Nyles G. Greer

Public Land & Resources Law Review

The Supreme Court of the United States recently ruled that the Atomic Energy Act did not preempt a Virginia law prohibiting uranium mining in the Commonwealth. The Court held that although the Act delegated substantial power over the nuclear life cycle to the Nuclear Regulatory Commission, it offered no indication that Congress sought to strip states of their traditional power to regulate mining on private lands within their borders.

November 22, 2019: What Is The Point Of This Column?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is the Point of this Column?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

About Those Constitutional Norms, Mr. Attorney General, Deborah Pearlstein

Online Publications

Among the many jaw-dropping moments in Attorney General Bill Barr’s address to the Federalist Society last Friday was the assertion that he had been unable to glean from his “friends on the other side” any clear answer as to what constitutional norms President Donald Trump was really breaching.

Let History Repeat Itself: Solving Originalism's History Problem In Interpreting The Establishment Clause, Neil Joseph

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court's Establishment Clause jurisprudence is all over the place. The current justices have widely divergent views on the Establishment Clause's meaning, and the Lemon test has been widely panned by several justices. Originalist judges, however, have had a fairly consistent approach to interpreting the Establishment Clause. This largely stems from their reliance on history. This Note argues that their use of history in analyzing the Establishment Clause is flawed. Originalist Establishment Clause jurisprudence has been and is criticized for being unprincipled. And those criticisms are correct. Originalists encounter such criticism because the justices struggle to reconcile historical practice …

November 19, 2019: Court-Packing, Bruce Ledewitz

Hallowed Secularism

Blog post, “Court-Packing“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 14, 2019: What’S Wrong With Impeachment, Bruce Ledewitz

Hallowed Secularism

Blog post, “What’s Wrong With Impeachment“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Public Rights, Private Privileges, And Article Iii, John Harrison

Georgia Law Review

PUBLIC RIGHTS, PRIVATE PRIVILEGES, AND ARTICLE III John Harrison* This Article addresses the constitutional justification for adjudication by executive agencies that rests on the presence of a public right. The public rights rationale originated in the nineteenth century and was for many decades the dominant explanation for the performance of adjudicative functions by executive agencies. The U.S. Supreme Court most recently relied on that rationale in Oil States Energy Services v. Greene’s Energy Group in 2018. In light of the Court’s interest in the nineteenth century system, this Article explores that system in depth and seeks to identify the ways …

November 7, 2019: The Politics Of Carl Schmidt Versus The Politics Of Abraham Lincoln, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Politics of Carl Schmidt versus the politics of Abraham Lincoln“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Replaying The Past: Roles For Emotion In Judicial Invocations Of Legislative History, And Precedent, Emily Kidd White

Articles & Book Chapters

Legal reasoning in the common law tradition requires judges to draw on concepts, and examples that are meant to resonate with a particular emotional import and operate in judicial reasoning as though they do. Judicial applications of constitutional rights are regularly interpreted by reference to past violations (either through precedent, contextual framings, and/or legislative history), which in turn elicit a series of emotions which work to deepen and intensify judicial understandings of a right guarantee (freedom of association, freedom of expression, equality, security of the person, etc.). This paper examines the way in which invocations of past political histories, and …

Left With No Name: How Government Action In Intra-Church Trademark Disputes Violates The Free Exercise Clause Of The First Amendment, Mary Kate Nicholson

Washington and Lee Law Review

The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment. The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise thereof . . . .” The Supreme Court later adopted the neutral principles approach to avoid Free Exercise violations resulting from courts deciding real property disputes. Without the application of the same neutral principles to intellectual property disputes between churches, however, there is …

The People V The Patents And Companies Registration Agency Ex-Partes Finsbury Investment Limited And Zambezi Portland Cement Limited 2017/Ccz/R003 Selected Judgment No. 28 Of 2018, Chanda Chungu

SAIPAR Case Review

The dispute related to how to commence judicial review proceedings in Zambia. The applicant in this matter commenced judicial review proceedings in the High Court of Zambia by way of applying for leave. In between the period after the High Court granted leave to hear the merits of the judicial review and the hearing date, the Patents and Companies Registration Agency (PACRA), the Respondent filed an application to discharge the leave granted. It was at this point that the Applicants filed summons, to have the matter referred to the Constitutional Court to determine whether or not the requirement for leave …

The Decline Of Denali’S Wolves: Federal Options In The Face Of Non-Cooperative Wildlife Federalism, Catherine Danley

Brigham Young University Journal of Public Law

No abstract provided.

The People V The Patents And Companies Registration Agency Ex-Partes Finsbury Investment Limited And Zambezi Portland Cement Limited 2017/Ccz/R003 Selected Judgment No. 28 Of 2018, O'Brien Kaaba

SAIPAR Case Review

The matter came to the Constitutional Court by referral from the High Court. The Applicant applied for leave to issue judicial review process and leave was granted by the High Court. While the main application for judicial review was still pending, the Respondent filed an application to discharge the leave granted to the Applicant. The Applicant opposed this motion and then applied to have the matter referred to the Constitutional Court.

The Implications Of Environmental Law And Latino Property Rights On Modern-Age Border Security: Rejecting A Physical Border And Embracing A Virtual Wall, Kevin Hernandez

Student Scholarship

For many, the construction of a physical border is a rational solution to national security concerns at the southern border. However, there is much evidence indicating that the negative impacts of building a physical border wall far outweigh its benefits. Particularly, the border region’s eco-systems have much to lose in the form of extinctions, biodiversity reduction, and critical habitat destruction. On top of that, a number of Latino communities would be the victims of various eminent domain claims that would strip them of land that, in many cases, has been in their family for multiple gener- ations. The broad, almost …

A Literary Lens Into Constitutional Interpretation And A Possible Synthesis Of Natural And Positive Law: The Silmarillion, Charles Edward Andrew Lincoln Iv

Student Scholarship

The nature of identity in the United States lies in the Constitution. Perhaps this is due to “veneration” of the document. It has also been argued that the Declaration of Independence holds a seminal role in the American identity.

The rift seems to occur with the concept of a “living constitution,” whereby the concept of an ever-evolving jurisprudence allows for an evolving interpretation of the Constitution as society changes.

This rift can be demonstrated by the world of J.R.R. Tolkien. In The Lord of the Rings and Silmarillion, the various languages of groups of Middle Earth represent and have distinct …

Freedom Of Association, Extreme Partisan Gerrymandering, Justiciability And The Unmistakable Political Question Controversy, L. Darnell Weeden

Brigham Young University Journal of Public Law

No abstract provided.