Constitutional Law Commons^™

Withdrawing From Nafta, Alison Peck

Faculty & Staff Scholarship

Since the 2016 campaign, Donald Trump has threatened to withdraw from NAFTA. Can he? The question is complex. For one thing, NAFTA is not a treaty negotiated under the Treaty Clause of the Constitution, but rather a congressional–executive agreement, a creature of dubious con- stitutionality and ill-defined withdrawal and termination parameters. This Article reviews the scope of those restrictions and concludes that unilateral presidential withdrawal from NAFTA, although not without support, is ultimately unlawful. On one hand, unilateral presidential withdrawal would be valid as a matter of international law, and the NAFTA Implementation Act appears to be designed to terminate …

Expert Commentary On Sports Betting Post-Paspa From Becky Harris, Unlv Gaming Law Journal, University Of Nevada, Las Vegas -- William S. Boyd School Of Law

UNLV Gaming Law Journal

Becky Harris, appointed by former Nevada Governor Brian Sandoval (2011-2019), served as the first female Chair of the Nevada Gaming Control Board from January 2018 to January 2019. Harris was the first Chair to propose regulations addressing workplace sexual harassment. Prior to serving as Chair, Harris served in the Nevada Legislature for the 2015 and 2017 legislative sessions.

The Past And The Present: Stare Decisis In Wisconsin Law, Daniel R. Suhr, Kevin Leroy

Marquette Law Review

None

Dying Constitutionalism And The Fourteenth Amendment, Ernest A. Young

Marquette Law Review

None

[Dis]Integration: Second-Order Diversity And Schools, Anders Walker

All Faculty Scholarship

This article challenges the prevailing definition of diversity in schools. Borrowing from legal theorist Heather Gerken, it argues that diversity is best understood not simply as a rationale for creating integrated spaces, but also [dis]integrated ones, places where minority students and faculty can occupy majority positions, and are able to exercise majority control. Such spaces serve legitimate pedagogical goals that are different from those associated with statistical integration, and therefore warrant consideration by courts tasked with reviewing the use of race in university admissions.

Who Wore It Better? Federal V. State Government Regulation Of Sports Betting, Jennifer Roberts, Greg Gemignani

UNLV Gaming Law Journal

No abstract provided.

Due Process, Private Nondelegation Doctrine, And The Regulation Of Sports Betting, Ryan M. Rodenberg

UNLV Gaming Law Journal

No abstract provided.

The Problem With Procedure: Some Inconvenient Truth About Aspirational Goals, George Rutherglen

San Diego Law Review

Procedure aspires to lofty goals: fairness, efficiency, and speedy adjudication, or so says Rule 1. The rule states the aims of the Federal Rules of Civil Procedure in admirably succinct terms: “They should be construed and administered to secure the just, speedy, and inexpensive determination of every action and proceeding.” Who could oppose any of these goals? Yet for all its virtues as a concise summary of what the Federal Rules seek to achieve, this provision cannot be taken literally as a guide to interpretation. The goals it aspires to are, on even a cursory examination, deeply inconsistent with each …

Judicial Deference And Political Power In Fourteenth Amendment And Dormant Commerce Clause Cases, F. Italia Patti

San Diego Law Review

The Supreme Court lacks a coherent approach to deciding how much to defer to state legislatures when reviewing allegedly unconstitutional legislation. The Court grants very little deference to state legislatures in dormant Commerce Clause cases but significant deference to state legislatures in Fourteenth Amendment cases. The Court has never acknowledged this divergence, let alone justified it. Scholars have also failed to note this divergence or explore whether it can be justified. By ignoring this divergence, the Court and scholars have ignored a situation that exacerbates existing power imbalances and fails to recognize a more promising approach to judicial deference.

This …

Title Ix And Title Vii: Parallel Remedies In Combatting Sex Discrimination In Educational Employment, Lynn Ridgeway Zehrt

Marquette Law Review

The federal circuit courts of appeals are divided over the proper relationship between Title IX of the Higher Education Amendments Act of 1972 and Title VII of the Civil Rights Act of 1964. Specifically, the federal courts disagree over whether an employee of an educational institution may sue her employer for employment discrimination under either Title IX or Title VII. Some courts have concluded that these employees may not bring employment discrimination claims under Title IX, holding that Title VII provides the sole avenue for obtaining monetary relief for employment discrimination against educational institutions. Other courts have reached the opposite …

The Living Constitution And Moral Progress: A Comment On Professor Young's Boden Lecture, David A. Strauss

Marquette Law Review

None

Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan

Texas A&M Law Review

The administrative state has emerged as a pervasive machine that has become the dominate generator of legal rules—despite the fact that the U.S. Constitution commits the legislative power to Congress alone. When examining legislation authorizing administrative agencies to promulgate rules, we are often left asking whether Congress “dele- gates” away its lawmaking authority by giving agencies too much power and discretion to decide what rules should be promulgated and to determine how rich to make their content. If the agencies get broad authority, it is not too hard to understand why they would fulsomely embrace the grant to its fullest. …

Bloody Hell: How Insufficient Access To Menstrual Hygiene Products Creates Inhumane Conditions For Incarcerated Women, Lauren Shaw

Texas A&M Law Review

For thousands of incarcerated women in the United States, dealing with menstruation is a nightmare. Across the country, many female prisoners lack sufficient access to feminine hygiene products, which negatively affects their health and rehabilitation. Although the international standards for the care of female prisoners have been raised in attempt to eliminate this issue, these stan- dards are often not followed in the United States. This Comment argues that denial of feminine hygiene products to female prisoners violates human de- cency. Additionally, this Comment considers possible constitutional violations caused by this denial, reviews current efforts to correct this problem, and …

Back To The Future: Permitting Habeas Petitions Based On Intervening Retroactive Case Law To Alter Convictions And Sentences, Lauren Casale

Fordham Law Review

In 1948, Congress enacted 28 U.S.C. § 2255, which authorizes a motion for federal prisoners to “vacate, set aside or correct” their sentences, with the goal of improving judicial efficiency in collateral review. Section 2255(e), known as the “savings clause,” allows federal inmates to challenge the validity of their imprisonments with writs of habeas corpus if § 2255 motions are “inadequate or ineffective to test the legality of [their] detention[s].” Due to the U.S. Supreme Court’s and Congress’s silence regarding what suffices as “inadequate or ineffective,” the circuit courts have adopted varied standards. The Sixth and Seventh Circuits hold that …

Law Library Blog (March 2019): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

Custodial Compulsion, Kyron J. Huigens

Articles

In cases that fall under Miranda v Arizona, police interrogators not only give a suspect reasons to confess; they also suggest that the suspect ought to confess. In doing so, interrogators effectively invoke the Wigmorean duty of a citizen to produce any evidence he has in his possession, including his own confession. That is, they invoke the duty against which the Self Incrimination Clause stands, so that the clause is applicable to police interrogations, and is violated where it is not waived. This means that “a Miranda violation” is a violation of the Self Incrimination Clause in the field, just …

Rediscovering The Journal Clause: The Lost History Of Legislative Constitutional Interpretation, Nicholas Handler

Faculty Scholarship

Article I, Section 5 of the United States Constitution requires that each house of Congress keep a Journal of its proceedings. Contemporary observers have largely ignored this provision, treating it as a vestigial record-keeping requirement with little significance for modern law. This dismissive attitude is misguided. Historically, legislative Journals were one of the primary mechanisms by which Parliament, and later Congress, made and interpreted constitutional law. Journals are the official histories of legislatures’ activity. They record what legislatures do as institutions—what powers they exercise, what procedures they use, and what actions by the coordinate branches they protest or resist. In …

A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Kyle S. Mckay

Brigham Young University Journal of Public Law

No abstract provided.

February 28, 2019: The Communitarian Collapse In America, Bruce Ledewitz

Hallowed Secularism

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

A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan

Brigham Young University Journal of Public Law

No abstract provided.

Henry V. Nev. Comm'n On Judicial Discipline, 135 Nev. Adv. Op. 5 (Feb. 28, 2019) (En Banc), James Puccinelli

Nevada Supreme Court Summaries

The Court held that NRS § 1.428 is constitutional. Thus, hearing masters are subject to the Nevada Commission on Judicial Discipline’s jurisdiction.

Asymmetric Normalcy, Deborah Pearlstein

Online Publications

Say what you will about sports metaphors in legal writing, but Professor Mark Tushnet’s “constitutional hardball” descriptor has proven remarkably useful in capturing one of the most vexing political dynamics of our time: the political parties’ resort to “claims and practice…that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with…the ‘go without saying’ assumptions that underpin working systems of constitutional government.”

Trump V. Hawaii: Dissecting The Controversy Over Presidential Immigration Policies, Paul Taske

Immigration and Human Rights Law Review

No abstract provided.

February 23, 2019: Opening Of The Memphis Talk On Court-Packing, Bruce Ledewitz

Hallowed Secularism

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

Protecting The Fifth Amendment: The Residual Clause In The Mandatory Guidelines Is Void For Vagueness, Olivia M. Tourgee

St. John's Law Review

(Excerpt)

The first part of this Note will address the specific problem the Mandatory Guidelines present. First, the Mandatory Guidelines will be defined, and the mandatory and binding nature of these Mandatory Guidelines will be explored in depth. Second, this Note will explain the significance of the Supreme Court’s opinion in Booker that declared the Mandatory Guidelines unconstitutional. Third, this Note will evaluate Beckles, where the Supreme Court held that the Advisory Guidelines were not subject to vagueness challenges. Thus, the first part of this Note will set the stage for the problem that the Mandatory Guidelines present.

The second …

March 21, 2019: My Op-Ed On The Bladesnburg Cross, Bruce Ledewitz

Hallowed Secularism

Blog post, “ My op-ed on the Bladesnburg Cross“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Too Plain To Be Misunderstood: Sovereign Immunity Under The Arkansas Constitution, Robert C. Dalby

Arkansas Law Review

The framers of the constitution certainly knew that instances of hardship would result from the prohibition of suits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effect to it. Given the fluid nature of the law, time is often the greatest enemy of clarity in court precedent. From law students to experienced judges, anyone who has tried to research the doctrine of sovereign immunity under the Arkansas Constitution has surely struggled with that enemy as they sift through the …

Medical Marijuana In Arkansas: The Risks Of Rushed Drafting, Carol Goforth, Robyn Goforth

Arkansas Law Review

Arkansas voters passed the Arkansas Medical Marijuana Amendment to the state constitution in late 2016. Almost certainly, the vast majority of voters did so without reading or understanding the intricacies of the initiative, and instead voted simply to affirm their desire to permit the medical use of marijuana in the state. Among many other provisions, the amendment imposed a 120 day time limit (later extended by the Arkansas legislature to 180 days) within which the Arkansas Department of Health and other agencies were to adopt rules implementing the voter mandate. While six months might seem like plenty of time in …

The Constitutional Rights Of Advanced Robots (And Of Human Beings), R. George Wright

Arkansas Law Review

Constitutional rights create and destroy otherwise available options for the rights-bearer, for governments, and for affected third parties. Thus, conferring a constitutional right always requires at least some minimal defense. But conferring a constitutional right can certainly be appropriate if the recipient of the right seems to deserve or otherwise qualify for the right in question, or if conferring the right makes sense on other, perhaps partly pragmatic, grounds.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.