Constitutional Law Commons^™

Finding A New Home For The Abortion Right Under The Ninth Amendment, Allison N. Kruschke

ConLawNOW

This essay advocates locating the foundation of the constitutional right to an abortion in the Ninth Amendment. Using the Ninth Amendment to recognize the right to an abortion, this article argues, is a better path than using the Fourteenth Amendment because it takes the determination of whether an abortion is a protected right outside the moral realm. The analysis under the Fourteenth Amendment of whether a right is “deeply rooted in the tradition” of the United States inevitably stirs a debate about whether the public considers abortion morally acceptable. In recognizing the right to an abortion under the Ninth Amendment, …

Police Body Cameras: Go Big Or Go Home?, Ronald J. Coleman

Buffalo Law Review

Police body-worn cameras have proliferated since the deaths of Michael Brown and Eric Garner, and the recent George Floyd-related protests seem set to continue or even accelerate that trend. Indeed, in her recent Nieves v. Bartlett dissent, Justice Sotomayor took time to note that many departments equip their police officers with body cameras. Body camera advocates have touted the cameras’ benefits, such as decreasing misconduct, reducing complaints, and improving accountability. At the same time, serious concerns have been raised regarding the impact of these cameras on privacy, public resources, and fairness. Despite the increased interest in body cameras, important empirical …

Virtual Trials: Necessity, Invention, And The Evolution Of The Courtroom, Susan A. Bandes, Neal Feigenson

Buffalo Law Review

Faith in the legitimating power of the live hearing or trial performed at the place of justice is at least as old as the Iliad. In public courtrooms, litigants appear together, evidence is presented, and decisions are openly and formally pronounced. The bedrock belief in the importance of the courtroom is rooted in common law, constitutional guarantees, and venerated tradition, as well as in folk knowledge. Courtrooms are widely believed to imbue adjudication with “a mystique of authenticity and legitimacy.” The COVID-19 pandemic, however, by compelling legal systems throughout the world to turn from physical courtrooms to virtual ones, disrupts …

December 16, 2020: This Week's Column--The Future Of The Supreme Court, Bruce Ledewitz

Hallowed Secularism

Blog post, “This week's column--the future of the Supreme Court“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

What Will A Post-Trump U.S. Supreme Court Look Like? It Might Not Be All That Bad For Liberals, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Law School News: 'Unmatched Opportunities' 12-16-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Constitutional Law's Conflicting Premises, Maxwell L. Stearns

Notre Dame Law Review

Doctrinal inconsistency is constitutional law’s special feature and bug. Virtually every salient doctrinal domain presents major precedents operating in tension. Bodies of precedent are rarely abandoned simply because a newer strand makes an older one appear out of place. And when an earlier strand is redeployed or substituted, the once-newer strand likewise persists. This dynamic process tasks law students, often for the first time, with reconciling the seemingly irreconcilable.

These doctrinal phenomena share as their root cause dual persistent conflicting premises. Some examples: Standing protects congressional power to monitor the executive branch, or it limits congressional monitoring when the selected …

Forgotten Federal-Missionary Partnerships: New Light On The Establishment Clause, Nathan S. Chapman

Notre Dame Law Review

Americans have long debated whether the Establishment Clause permits the government to support education that includes religious instruction. Current doctrine permits states to do so by providing vouchers for private schools on a religiously neutral basis. Unlike most Establishment Clause doctrines, however, the Supreme Court did not build this one on a historical foundation. Rather, in cases from Everson v. Board of Education (1947) to Espinoza v. Montana Department of Revenue (2020), opponents of religious-school funding have claimed American history supports a strict rule of no-aid.

Yet the Court and scholars have largely ignored a practice that casts light on …

Fraudulently Induced Confessions, Michael J. Zydney Mannheimer

Notre Dame Law Review

The jurisprudence on the use of police deception during interrogations is singularly unhelpful. Police may deceive in order to induce a suspect to confess, the courts tell us, unless they go too far. Police are permitted, for example, to feign sympathy for the suspect, lie about the existence of incriminating evidence, and falsely downplay the seriousness of the offense under investigation. But when police engage in other forms of deception, such as by offering false promises of leniency or misrepresenting the suspect’s Miranda rights, courts will balk and declare the resulting confession coerced. Yet neither courts nor commentators have successfully …

Enforcing A Wall Of Separation Between Big Business And State: Protection From Monopolies In State Constitutions, Alexandra K. Howell

Notre Dame Law Review

The goal of this Note is not to convince the reader to care more about regulatory monopolies than private ones. In fact, it is not to talk about private antitrust law at all. Instead, the goal is to put today’s concern with monopolies in historical perspective. Part I traces the history of the antimonopoly spirit in the United States starting with the English tradition that was highly influential on the Founders. This Note then demonstrates that today’s concern with private monopolies comes from a shift that took place during the progressive era. In Part II, this Note highlights the role …

Law School News: Mike Andrews '97 Nominated To U.S. Court Of Federal Claims 12-15-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Brief Of Religious Liberty Scholars As Amici Curiae In Support Of Defendants-Appellants, Michael Francisco, Richard W. Garnett

Court Briefs

No. SJC-12988
Margaret DeWeese-Boyd v. Gordon College

On Appeal from a Judgment of the Essex County Superior Court

From the Introduction

In the decision below, the trial court adopted a miserly understanding of the ministerial exception. It refused to apply it to a professor who taught social work at Gordon College, a Christian liberal arts school founded in 1889 which has a mission stating a "commitment to integrating faith and learning" and to "provide instruction in the Bible and other subjects" to prepare students "for the duties of the Christian ministry and other special forms of Christian work." RA/144,215. The …

Fault Lines: An Empirical Legal Study Of California Secession, Bill Tomlinson, Andrew W. Torrance

Seattle Journal of Technology, Environmental, & Innovation Law

Over the last decade, multiple initiatives have proposed that California should secede from the United States. This article examines the legal aspects of California secession and integrates that analysis with findings from an empirical study of public perceptions of such secession. There is no provision in the United States Constitution allowing states, or other political or geographical units, to secede unilaterally. The Civil War was fought to uphold this principle, and the United States Supreme Court confirmed it in its 1869 Texas v. White decision. Nevertheless, numerous instances of secession, both legal and extralegal, have occurred across human history, and …

Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss: Dyer V. Smith, Brandon Hasbrouck, Katherine Mims Crocker

Scholarly Articles

This case illustrates how the First Amendment functions as an essential backstop to Fourth Amendment freedoms—and vice versa. As revealed by the national response to the killing of George Floyd and so many similar injustices, the ability to record encounters with government representatives is critical to preserving civil rights, and especially the right to avoid excessive force. The public only “became aware of the circumstances surrounding George Floyd’s death because citizens standing on a sidewalk exercised their First Amendment rights and filmed a police officer kneeling on Floyd’s neck until he died.” Index Newspapers LLC v. U.S. Marshals Serv., …

Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss, Katherine Mims Crocker, Brandon Hasbrouk

Briefs

No abstract provided.

Of What Consequence?: Sexual Offender Laws And Federal Habeas Relief, Katherine A. Mitchell

University of Miami Law Review

New concerns for an old writ. The relatively recent advent of sex offender registries has led to consequences in the habeas corpus context—and they may be more than collateral. In particular, are the restraints imposed on registered sex offenders severe enough to constitute custody for habeas jurisdiction? With a recent split among the federal circuit courts, this Article attempts to decipher which side of the split the Supreme Court will—and should—fall.

Twenty-First Century Formalism, Thomas B. Nachbar

University of Miami Law Review

Formalism is one of the most widely applied but misunderstood features of law. Embroiled in a series of conflicts over the course of the twentieth century, formalism’s meaning has become confused as formalism has been enlisted by both proponents and opponents of specific legal methodologies. For some, formalism has simply become an epithet used to describe virtually anything they dislike in legal thinking. Used often and inconsistently as a stand-in (and frequently a strawman), formalism’s distinct identity has been lost, its meaning merged with whatever methodology it is being used to support or attack.

This Article seeks to separate formalism …

Law School News: Two Rwu Law Alumni Included Among Historic Judicial Nominations 12-08-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

One Ring To Rule Them All: Individual Judgments, Nationwide Injunctions, And Universal Handcuffs, Paul J. Larkin Jr., Giancarlo Canaparo

Notre Dame Law Review Reflection

A large and growing body of literature criticizes nationwide injunctions, although a handful of scholars have come to their qualified defense. The literature has focused on whether universal injunctions comport with the historic scope of federal courts’ equitable powers and are good policy to boot. Largely missing from the debate is a fulsome analysis of whether the Constitution or the Judicial Code authorizes federal courts to issue such injunctions and whether they are permissible under existing Supreme Court precedent. We argue that the answer to each question is “no.”

Parts I and II explain that no positive law authorizes universal …

An Analysis Of The Competing Views On The Interpretation Of The U.S. Constitution, Joseph Longo

Senior Honors Theses

This thesis will examine the competing interpretations of the United States Constitution and the different effects these interpretations would have on the American government and legal systems. By examining legal precedents and different philosophical views, the varying interpretations will be examined and put through real-world scenarios. The founding of America was over 200 years ago, but philosophical views throughout history shall be used in the understanding of the different interpretations and real-world consequences. The thesis will not claim that one interpretation is proper and the perfect one for the United States, rather it will challenge each view in an attempt …

December 2, 2020: Reform The Electoral College, Bruce Ledewitz

Hallowed Secularism

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

The Electoral College Is Dangerously Vulnerable To Manipulation. It's Time To Fix It, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

On The Straight And Narrowly Tailored: The Third Circuit Walks A Fine Line Between The Judiciary And Politics In Adams V. Governor Of Delaware, Connor Defilippis, Zachary R. Epstein

Villanova Law Review (1956 - )

No abstract provided.

Third Circuit Halts Interstate Pipeline Construction In Penneast Pipeline: States And Environmentalists Find An Ally In Sovereign Immunity, Fiona Steele

Villanova Law Review (1956 - )

No abstract provided.

The Thickness Of Blood: Article I, Section 7, Law Enforcement, And Commercial Dna Databases, Hannah Parman

Washington Law Review

Law enforcement agencies increasingly use online commercial and open source DNA databases to identify suspects in cases that have long since gone cold. By uploading crime scene DNA to one of these websites, investigators can find family members who have used the website and build a family tree leading back to the owner of the original DNA. This is called “familial DNA searching.” The highest profile use of this investigative method to date occurred in California, but law enforcement in Washington State has been quick to begin utilizing the method as well. However, article I, section 7 of the Washington …

The Religious Freedom Restoration Act, Trinity Lutheran, And Trumpism: Codifying Fiction With Administrative Gaslighting, Robin S. Maril

Northwestern Journal of Law & Social Policy

This article addresses the Trump administration’s consistent misinterpretation and misapplication of legal precedent to support unnecessary religious exemptions that exceed Constitutional mandates and impair the rights of third parties to access federal services and programs. Proponents of this routinized repeal of civil rights protections argue that the Trump administration is merely restoring the correct balance of religious liberties in the federal government. However, the regulations and policies included in this campaign unconstitutionally broaden the already robust religious protections provided by statutes and court decisions and have the effect of dismantling the civil rights infrastructure of the past 50 years.

Despite …

Suspects, Cars & Police Dogs: A Complicated Relationship, Brian R. Gallini

Washington Law Review

Officers are searching and arresting vehicle occupants without a warrant with increasing regularity. For justification, this Article demonstrates, lower courts across the country unconstitutionally expand the scope of the Fourth Amendment’s automobile exception—often in the context of a positive dog alert. But Supreme Court jurisprudence specifically limits the scope of the automobile exception to warrantless searches of cars and their containers. In other words, the probable cause underlying the automobile exception allows police to search a vehicle and its containers—nothing more.

Despite that clear guidance, this Article argues that a growing number of lower courts nationwide unconstitutionally rely on the …

The Reprieve Power: May The Uniform Code Of Military Justice Limit Executive Clemency?, Nino C. Monea

West Virginia Law Review

Article 57 of the Uniform Code of Military Justice states the President "may commute, remit, or suspend the sentence, or any part thereof, as the President sees fit. That part of the sentence providing for death may not be suspended." This seemingly contradicts Article 2 of the United States Constitution, which states that the President "shall have the power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." This Article looks at whether the power to "reprieve" offenses includes the power to suspend sentences, including military sentences, and concludes that it does. The …

Content, Context, What's Next? A Garcetti-Pickering Analysis For Public Employees In Court, Austin Longnecker

West Virginia Law Review

No abstract provided.

An Unfair Cross Section: Federal Jurisdiction For Indian Country Crimes Dismantles Jury Community Conscience, Alana Paris

Northwestern Journal of Law & Social Policy

Under the Sixth Amendment to the United States Constitution, federal jury pools must reflect a fair cross section of the community in which a crime is prosecuted and from which no distinct group in the community is excluded. The community in which a crime is prosecuted varies widely in Indian country based on legislative reforms enacted by Congress to strip indigenous populations of their inherent sovereignty. Under the Major Crimes Act, the federal government has the right to adjudicate all serious crimes committed by one American Indian against another American Indian or non-Indian within Indian country. American Indian defendants under …