Constitutional Law Commons^™

Property Convergence In Takings Law, Maureen E. Brady

Pepperdine Law Review

Although one of the key questions in a federal system is how authority should be allocated between the state and national governments, property law has rarely generated serious controversy on this front. Instead, property entitlements and the rules governing resource use have typically been the province of state and local actors. The Supreme Court has repeatedly emphasized that property rights are created at the state level. And while federal regulations—for example, environmental regulations—certainly limit property rights, state and local land-use laws and state nuisance and trespass rules serve as major constraints on property’s use and enjoyment. This feature of property …

The Past, Present, And Future Of Federalism: A Symposium Introduction, Derek T. Muller

Pepperdine Law Review

No abstract provided.

Federal Constitutional Limitations On The Regulation Of Coal Mining Activities, Cyril A. Fox Jr.

Journal of Natural Resources & Environmental Law

No abstract provided.

“Drive-By” Jurisdiction: Congressional Oversight In Court, Daniel Epstein

Pepperdine Law Review

On July 9, 2020, in Trump v. Mazars USA, LLP and Trump v. Deutsche Bank AG, the Supreme Court held that the lower courts did not adequately consider the separation of powers concerns attendant to congressional subpoenas for presidential information. Given that the question presented in Mazars concerned whether Congress had a legitimate legislative purpose in subpoenaing the President’s personal records, the Supreme Court’s decision is anything but a model of clarity. The Court simultaneously opined that disputes “involving nonprivileged, private information” “do[ ] not implicate sensitive Executive Branch deliberations” while claiming “congressional subpoenas for the President’s information unavoidably pit …

Limiting Attorney's Fees In Black Lung Benefits Cases: A Violation Of Procedural Due Process?, Earl F. Martin Iii

Journal of Natural Resources & Environmental Law

No abstract provided.

The Constitutionality Of The Black Lung Interim Presumption, Stella B. House

Journal of Natural Resources & Environmental Law

No abstract provided.

Greenbacks, Consent, And Unwritten Amendments, John M. Bickers

Arkansas Law Review

"I remember a German farmer expressing as much in a few words as the whole subject requires: “money is money, and paper is paper.”—All the invention of man cannot make them otherwise. The alchymist may cease his labours, and the hunter after the philosopher’s stone go to rest, if paper cannot be metamorphosed into gold and silver, or made to answer the same purpose in all cases."

Every day Americans spend paper money, using it as legal tender. Yet the Constitution makes no mention of this phenomenon. Indeed, it clearly prevents the states from having the authority to make paper …

Toronto’S 2018 Municipal Election, Rights Of Democratic Participation, And Section 2(B) Of The Charter, Jamie Cameron, Bailey Fox

Articles & Book Chapters

In 2018, the City of Toronto’s municipal election overlapped with a provincial election that brought a new government to office. While the municipal election ran for a protracted period from May 1 to October 22, the provincial election began on May 9 and ended about four weeks later, on June 7.On July 27, after only a few weeks in office, the provincial government tabled the Better Local Government Act (BLGA) and proclaimed the Bill into law on August 14.The BLGA reduced Toronto City Council from 47 to 25 wards and reset the electoral process, mandating that the election proceed under …

The Legislative Formation Of The Temporary Law Of The Parliament Elections, An Analytical And Critical Study, Eid Ah. Alhosban, Abeer Ba. Dababneh

UAEU Law Journal

The legislative drafting of any law is a standard for judging the adequacy of this law; the more marked the drafting of legislative precision and discipline of the law, the more responsive this law will be to the requirements of society, and the more equitable and effective it will be. The temporary 9/ 2010 Law of Election to the House of Deputies is one of the most important political laws that bear sensitivity to the popularity basis, where the outcome of a House of Deputies is able to carry out its constitutional duties in terms of oversight and legislation.

With …

Exceptions Of The Principle Of Imperative Reasoning Of Individual Administrative Decisions In France

UAEU Law Journal

The imperative reasoning of administrative decisions is considered one of the most important landmarks of the policy of administrative clarity. It means that the administration has to be committed to give legal and substantial reasons upon issuing such decisions. Such procedure allows the senior officers to know the reasons of the decision while reviewing the decision addressed to them and influencing their legal positions. Such action achieves understanding and cooperation between the administration and its customers. It enhances the confidence bridges between the two parties and facilitates the administration's task to realize public welfare. This principle was adopted by the …

2nd Annual Women In Law Leadership Lecture: A Fireside Chat With Debra Katz, Esq. 03-03-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Religion And Local Power, Brian M. Miller

Mercer Law Review

In December of 2017, hundreds of protestors descended on Washington, D.C., from all over the United States. The crowds converged on the blocks surrounding the Supreme Court of the United States, where onlookers might have spotted signs reading “It’s Not About the Cake,” and “Open to All,” rising from one side of the crowd, and signs reading “Serves All People, But Can’t Create All Art,” and “Justice for Jack” rising from the other side. That morning the Supreme Court heard a case about a Colorado cake shop owner who, because of his religious convictions, refused to create a cake that …

Hacks, Leaks, And Data Dumps: The Right To Publish Illegally Acquired Information Twenty Years After Bartnicki V. Vopper, Erik Ugland, Christina Mazzeo

Washington Law Review

This Article addresses a fluid and increasingly salient category of cases involving the First Amendment right to publish information that was hacked, stolen, or illegally leaked by someone else. Twenty years ago, in Bartnicki v. Vopper, the Supreme Court appeared to give broad constitutional cover to journalists and other publishers in these situations, but Justice Stevens’s inexact opinion for the Court and Justice Breyer’s muddling concurrence left the boundaries unclear. The Bartnicki framework is now implicated in dozens of new cases— from the extradition and prosecution of Julian Assange, to Donald Trump’s threatened suit of The New York Times …

The Vanishing Core Of Judicial Independence, Evan C. Zoldan

Nevada Law Journal

No abstract provided.

An Unique Context Of Separation Of Religion And State In Japan, Thomas Makoto Naruse

Japanese Society and Culture

Article 20 of the Constitution of Japan stipulates the separation of religion and state. As in many countries, the primary purpose of the separation of religion and state is to guarantee religious freedom. However, in Japan, the separation of religion and state has the aim of preventing the revival of State Shinto or militarism. From this point of view, Article 20 of the Constitution of Japan can be understood as a kind of “pacifist clause.” This article points out the “pacifist” aspect of the separation of religion and state in Japan, based mainly on the drafting process of the current …

Era Project Faq On The District Court's Decision In Virginia V. Ferriero, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

The states that brought the lawsuit do not have standing. This means that the states that brought the lawsuit were not injured by the fact that the Archivist refused to publish the amendment. Their argument is that the Archivist’s refusal to publish the Amendment undermined their sovereign power to ratify a change to the Constitution.

Faq On The Current Status Of The Equal Rights Amendment To The U.S. Constitution, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

Several measures have been introduced into the U.S. Congress this session that relate to the Equal Rights Amendment (ERA). One is a resolution that would lift the deadline for ratification of the ERA that was passed by Congress in 1972, and the other is a new ERA that would begin a new process of amending the Constitution to add explicit protections for sex equality. This FAQ is designed to explain what each of these measures would do and the legal complexities that surround them.

Revising Reasonableness In The Cloud, Ian Walsh

Washington Law Review

Save everything—just in case––and search for it later. This is a modern mantra fueled by the ubiquity of smartphones, laptops, tablets, and free or low-cost data storage that leads users to store massive amounts of data in the cloud. But when users trust third-party cloud storage providers with private communications, they also surrender Fourth Amendment constitutional certainty. Existing statutory safeguards for these communications are lower than Fourth Amendment warrant and probable cause standards; this permits the government to seize large quantities of users’ private communications stored in the cloud with only minimal justification. Due to the revealing nature of such …

Self-Determination In American Discourse: The Supreme Court’S Historical Indoctrination Of Free Speech And Expression, Jarred Williams

Honors Program: Senior Projects (Public)

Within the American criminal legal system, it is a well-established practice to presume the innocence of those charged with criminal offenses unless proven guilty beyond a reasonable doubt. Such a judicial framework-like approach, called a legal maxim, is utilized in order to ensure that the law is applied and interpreted in ways that legislative bodies originally intended.

The central aim of this piece in relation to the First Amendment of the United States Constitution is to investigate whether the Supreme Court of the United States has utilized a specific legal maxim within cases that dispute government speech or expression regulation. …

The Costs Of Dissent: Protest And Civil Liabilities, Timothy Zick

Faculty Publications

This Article examines the civil costs and liabilities that apply to individuals who organize, participate in, and support protest activities. Costs ranging from permit fees to punitive damages significantly affect First Amendment speech, assembly, and petition rights. A variety of common law and statutory civil claims also apply to protest activities. Plaintiffs have recently filed a number of new civil actions negatively affecting protest, including "negligent protest," "aiding and abetting defamation," "riot boosting," "conspiracy to protest," and "tortious petitioning." The labels are suggestive of the threats these suits pose to First Amendment rights. All of these costs and liabilities add …

The Democracy Principle In State Constitutions, Jessica Bulman-Pozen, Miriam Seifter

Michigan Law Review

In recent years, antidemocratic behavior has rippled across the nation. Lame-duck state legislatures have stripped popularly elected governors of their powers; extreme partisan gerrymanders have warped representative institutions; state officials have nullified popularly adopted initiatives. The federal Constitution offers few resources to address these problems, and ballot-box solutions cannot work when antidemocratic actions undermine elections themselves. Commentators increasingly decry the rule of the many by the few.

This Article argues that a vital response has been neglected. State constitutions embody a deep commitment to democracy. Unlike the federal Constitution, they were drafted—and have been repeatedly rewritten and amended— to empower …

Delegation At The Founding, Julian Davis Mortenson, Nicholas Bagley

Articles

This article refutes the claim that the Constitution was originally understood to contain a nondelegation doctrine. The founding generation didn’t share anything remotely approaching a belief that the constitutional settlement imposed restrictions on the delegation of legislative power---let alone by empowering the judiciary to police legalized limits. To the contrary, the overwhelming majority of Founders didn’t see anything wrong with delegations as a matter of legal theory. The formal account just wasn’t that complicated: Any particular use of coercive rulemaking authority could readily be characterized as the exercise of either executive or legislative power, and was thus formally valid regardless …

A Variable Number Of Cheers For Viewpoint-Based Regulations Of Speech, R. George Wright

Notre Dame Law Review Reflection

If there is one thing we think we know about the First Amendment, it is that speech restrictions based on viewpoint are especially objectionable. The Supreme Court has declared that “[i]f there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” For this proposition, the Court has on one occasion cited thirteen of its own precedents.

Much more broadly, the Court has also held that a government “has no power to restrict expression because of its message, its …

We Have To Defeat The Myth Of The Stolen Election. We Risk Destroying Our Democracy If We Don't, Bruce Ledewitz

Newspaper Columns

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

February 24, 2021: It Is Not Clear Whether Republicans Really Believe The 2020 Election Was Stolen--This Week's Column, Bruce Ledewitz

Hallowed Secularism

Blog post, “ It Is Not Clear Whether Republicans Really Believe the 2020 Election Was Stolen--This Week's Column“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Incitement, Insurrection, Impeachment: Inside The Second Trump Impeachment, Roger Williams University School Of Law, Michael M. Bowden

School of Law Conferences, Lectures & Events

No abstract provided.

Let Them Eat Cake Or Let Him Not Bake? Summary And Analysis Of Masterpiece Cakeshop V. Colorado Civil Rights Commission, Michael Beato

Florida Law Review

Unlike most cases brought before the United States Supreme Court, Masterpiece Cakeshop v. Colorado Civil Rights Commission captured the nation’s attention. In this case, free speech rights were pitted against an anti-discrimination law, and religious rights were pitted against the dignity of same-sex marriage. While these constitutional doctrines might seem nuanced and obscure to most, the central issue of the case is easy to grasp: Can a baker, on free speech and free exercise grounds, refuse to bake a wedding cake for a same-sex couple? The Court, in a 7–2 decision, ruled solely on the free exercise claim, which, at …

Oh, What A Truism The Tenth Amendment Is: State Sovereignty, Sovereign Immunity, And Individual Liberties, Sharon E. Rush

Florida Law Review

The United States Supreme Court takes the Tenth Amendment and state sovereignty seriously. It also takes the Eleventh Amendment and state sovereign immunity seriously. Moreover, the contemporary Court’s interpretations of Congress’s Article I powers are based on its concomitant interpretations of the Tenth and Eleventh Amendments. The Court has infused these interpretations with the idea that an inherent part of a state’s sovereignty is not just its prerogative not to have its treasuries invaded, but also includes its right not to have its dignity assaulted. Protecting the dignity of states and other critical principles that inform the Court’s Article I, …

Free Speech, Strict Scrutiny And A Better Way To Handle Speech Restrictions, Aaron Pinsoneault

William & Mary Bill of Rights Journal

When it comes to unprotected speech categories, the Roberts Court has taken an amoral and inaccurate approach. When the Court first created unprotected speech categories-- defined categories of speech that are not protected by the First Amendment-- it was unclear what rendered a category of speech unprotected. One school of thought argued that speech was unprotected if it provided little or no value to society. The other school of thought argued that speech was unprotected if it fell into a certain category of speech that was simply categorically unprotected. Then, in 2010, the Court strongly sided with the latter approach, …

George R. R. Martin's Faith Militant In Modern America: The Establishment Clause And A State's Ability To Delegate Policing Powers To Private Police Forces Operated By Religious Institutions, Andrew Gardner

William & Mary Bill of Rights Journal

Since the very founding of the United States, the complex relationship between government and religion has troubled and concerned lawmakers. The Establishment Clause of the First Amendment to the United States Constitution was one of the first attempts to help define and restrain the government's role in that nexus. Thomas Jefferson, in a letter praising the Establishment Clause, famously wrote that the clause "buil[t] a wall of separation between Church [and] State." However, the extent of the protections that the Establishment Clause was intended to provide is unclear, and judges as well as legal scholars have struggled with interpreting the …