Constitutional Law Commons^™

Big Bad Roe, B. Jessie Hill

Faculty Publications

Now that Roe v. Wade is gone, what should replace it? This moment presents a rare opportunity to re-imagine the right to reproductive autonomy, given that the longstanding constitutional framework governing that right has been tossed out the window. For the most part, constitutional litigation over the right to abortion has shifted to state courts and is brought under state constitutions. Thus, as state courts begin to recognize the existence of a constitutional right to reproductive autonomy under state constitutions, they must decide what the right looks like. In several cases currently being litigated in state courts, advocates have argued …

Mail-In Voting And The Pennsylvania Constitution, Stephen E. Friedman

Duquesne Law Review

Pennsylvania was at the center of many of the disputes that arose after the hotly contested 2020 presidential election. One of the most significant challenges was a claim that Pennsylvania's newly enacted mail-in voting law violated the state's constitution. Plaintiffs in one lawsuit asked that all mail-in ballots be discarded, which would have shifted Pennsylvania's electoral votes to Donald Trump. When this lawsuit failed, challengers unsuccessfully objected to Congress counting Pennsylvania's electoral votes. A core argument both in court and in Congress was that the Pennsylvania Constitution requires in-person voting except where it specifically provides otherwise. The claim is supported …

Constitutionality Of Non-Uniform Quarterly Fees, Michael Francis Pecorella

Bankruptcy Research Library

(Excerpt)

In the United States, there are two different government entities entrusted with overseeing the administration of cases under title 11 of the United States Code (the “Bankruptcy Code”). In all but two states, the Office of the United States Trustee, which is a part of the Department of Justice, oversees the administration of bankruptcy cases. In North Carolina and Alabama, the two states that do not have a United States Trustee system, a Bankruptcy Administrator, which is funded by and housed in the Judicial Conference, oversees the administration of bankruptcy cases. The U.S. Trustees and the Bankruptcy Administrators generally …

Indigenous Legal Orders In Canada - A Literature Review (Updated To August 2022), Michael Coyle

Law Publications

This is a literature review of publications concerning Indigenous legal orders in Canada, funded by a SSHRC knowledge synthesis grant. This is an update to my 2017 report of the same name.

The suppression of Indigenous legal orders was an integral part of the colonial project to assimilate Indigenous peoples, a project exemplified by Canada’s now notorious experiment with Indian Residential Schools. Long marginalized by the Canadian state, the importance of Aboriginal peoples’ own legal systems has recently been recognized by the Supreme Court of Canada, by academics (including prominent Indigenous scholars) and the Truth and Reconciliation Commission, who all …

The Constitutional Costs Of School Policing, Maryam Ahranjani, Natalie Saing

Faculty Scholarship

Abstract

Responding to fears of violence and liability on K-12 campuses, local school boards and superintendents have made on-site or embedded school police omnipresent in American public schools. Yet, very little attention is paid to the many costs associated with their presence. When situating law enforcement’s presence squarely in the racist history of policing and school policing, the juxtaposition with the civic purpose of public education reveals significant constitutional costs. This Article builds on existing scholarship by bringing attention to the conflict between the First, Fourth, Fifth, Eighth, and Fourteenth Amendments and the dimensions of embedded school police. Ultimately, schools …

A Call For Transparency In Sports To The Government Of Puerto Rico, Karla V. Aponte

St. Thomas Law Review

Much like a state, Puerto Rico is self-governed, but cannot interfere with federal law. However, sports federations in Puerto Rico are not governed by the existing applicable federal law. Sports federations are avoiding most of the strict regulations imposed by federal acts, mainly because Puerto Rico has its own Olympic identity, and is recognized by the International Olympic Committee as a separate country. As a result, the language on the federal acts has been interpreted to only apply to those organizations representing the United States. Because of this, federations avoid strict auditing procedures, and other regulations, which consequently have deterred …

The Constitutional Issues Of Publishing Mugshots In The Age Of Screenshots And Digital Media, Ryan J. Mcelhose

St. Thomas Law Review

This paper takes the position that American people’s Due Process rights are violated when their mugshots are digitally disseminated prior to a conviction. The press’s First Amendment rights are not violated by not having access to pre-conviction booking photos because the press can report on other publicly accessible information. The same conclusion can be made relating to private citizens and private companies who assert that their Freedom of Speech rights are violated by not having access to obtain, publish, and disseminate pre-conviction mugshots. Existing scholarship has addressed the issue of publishing mugshots with privacy arguments related to the Freedom of …

Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib

American University Law Review

The Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking—for Civil Procedure, for Criminal Procedure, and for Appellate Procedure—the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation …

"Youth Matters": Why Demanding The Same Heightened Level Of Mitigation In Juvenile Life Without Parole Sentencing Proceedings As Is Required In Capital Sentencing Proceedings Is The Only Constitutional Option, Margaret Helein

American University Law Review

Donnell Wilson was only sixteen years old when he was sentenced to life in prison without the possibility of parole (JLWOP). Wilson appealed his life sentence, claiming that his defense counsel was ineffective for failing to investigate and present mitigation evidence pertaining to his youth and background when he was facing the possibility of a life sentence. While the state appellate court agreed, the state supreme court did not. The court in Wilson’s case concluded that the standards for presentation of mitigation evidence at sentencing as laid out by the American Bar Association’s Criminal Justice Standards for the Defense Function …

First Amendment Challenges To State Vaccine Mandats: Why The U.S. Supreme Court Should Hold That The Free Exercise Clause Does Not Require Religious Exemptions, Donna M. Gitter

American University Law Review

The U.S. Supreme Court has never issued a judicial opinion on the merits declaring that the First Amendment Free Exercise Clause permits states to mandate vaccinations without offering religious exemptions. However, in two recent cases, the Court in brief orders declined applications for emergency relief to block state vaccine mandates, and the petitioners have vowed to continue to pursue these cases.

This Article explores how the seemingly sudden onset of the coronavirus pandemic, coupled with its protracted duration, has occasioned both emergency and enduring state regulation of religious behavior in a way that exposes deep divides in our society’s views …

Towards A Dramaturgical Theory Of Constitutional Interpretation, Jessica Rizzo

Seattle University Law Review

Like legal texts, dramatic texts have a public function and public responsibilities not shared by texts written to be appreciated in solitude. For this reason, the interpretation of dramatic texts offers a variety of useful templates for the interpretation of legal texts. In this Article, I elaborate on Jack Balkin and Sanford Levinson’s neglected account of law as performance. I begin with Balkin and Levinson’s observation that both legal and dramatic interpreters are charged with persuading audiences that their readings of texts are “authoritative,” analyzing the relationship between legal and theatrical authority and tradition. I then offer my own theory …

Democracy At Risk: Domestic Terrorism And Attack On The U.S. Capitol, Lawrence J. Trautman

Seattle University Law Review

The year 2022 begins with democracy hanging in the balance. On February 13, 2021, Donald John Trump becomes the only American president to be impeached and acquitted twice. His acquittal for the second time follows a violent mob, having been incited by the lame-duck president, into marching down Pennsylvania Avenue to break into and vandalize the Capitol Building. It is now known that at least 138 law enforcement officers suffered from or received burns, concussions, rib fractures, heart attack—and at least five deaths are attributed to this insurrection. More than 725 individuals are subsequently charged for their role in this …

Regulating Fraud On The Marketplace Of Ideas: Federal Securities Law As A Model For Constitutionally Permissible Social Media Regulation, Michael M. Epstein

Seattle University Law Review

This article begins with an introduction discussing speech falsity and the duty under U.S. law by comparing commercial and noncommercial speech. Part I explores the problem of online disinformation. Part II addresses online disinformation in a non-commercial context. Part III contains three subsections assesses non-transactional commercial speech as a basis for non-commercial disinformation regulation. Part IV advocates for a fiduciary duty to fashion a remedy. Part V of this article concludes by suggesting a possible solution for creating a online disinformation law that could survive the First Amendment.

Hostile Learning Environments, The First Amendment, And Public Higher Education, Todd E. Pettys

Connecticut Law Review

The Supreme Court has never squarely addressed the First Amendment status of student-on-student verbal harassment at public institutions of higher education. Does the First Amendment permit public colleges and universities to discipline students on the grounds that their speech has created a hostile learning environment for others on campus? If so, what is the analysis underlying that constitutional judgment, and what are the requisite hallmarks of such an environment? Does it matter whether a student’s speech created the hostile learning environment on its own or whether it wielded that power only by virtue of its combination with the speech of …

Why Originalism Is Consistent With Natural Law: A Reply To Critics, J. Joel Alicea

Scholarly Articles

Constitutional theorists on the right are engaged in a debate about the moral foundations of originalism, the theory that government officials, including judges, are bound by the original meaning of the Constitution. I recently offered a defense of originalism’s moral authority grounded in the natural-law tradition. Harvard law professor Adrian Vermeule and his sometime co-author, University of Liverpool law professor Conor Casey, recently responded to my draft article, as did another supporter of Vermeule’s theory, lawyer and blogger Pat Smith. In the interest of furthering this important discussion about the moral foundations of originalism, I respectfully offer this reply.

Recovering Classical Legal Constitutionalism: A Critique Of Professor Vermeule’S New Theory,, Kevin C. Walsh

Scholarly Articles

Professor Adrian Vermeule has provoked renewed interest in the relationship between the classical natural law tradition and the Constitution of the United States with his book, Common Good Constitutionalism: Recovering the Classical Legal Tradition. As scholars self-consciously working in that tradition, we welcome contemporary attention to that perennial legal philosophy. Yet in reading and rereading the book, we found ourselves frustrated with it, notwithstanding the apparent agreement we shared with the author at some abstract level of principle. And that abstraction, it turns out, is just the problem with the book’s application of the classical legal tradition to constitutional law. …

The “Liberty Of Silence” Challenging State Legislation That Strips Municipalities Of Authority To Remove Confederate Monuments, Roger C. Hartley

Scholarly Articles

There are roughly 700 Confederate monuments still standing in courthouse lawns, parks, and downtown squares in virtually every city, town, and village throughout the “Old South.” Most of these Confederate monuments are located in states that have enacted legislation that bans the removal of Confederate monuments. Such legislative bans are in effect in Alabama, Georgia, Kentucky Mississippi, North Carolina, South Carolina, and Tennessee. Legislation that bans removal of Confederate monuments from public spaces poses a racial justice issue for millions of residents in these states because it forces political majorities in Southern communities (many constituting majority-minority communities) to host a …

Towards Nondelegation Doctrines, Chad Squitieri

Scholarly Articles

When discussing the nondelegation doctrine, courts and scholars frequently refer to Congress’ “legislative power.” The Constitution, however, speaks of no such thing. Instead, the Constitution vests a wide variety of “legislative powers” (plural) in Congress, including the powers to “regulate commerce,” “declare war,” “coin money,” and “constitute tribunals.” Shoehorning Congress’ diverse array of powers into a one-size-fits-all nondelegation doctrine has necessitated the development of the vaguely worded “intelligible principle” test. Unsurprisingly, that malleable test has failed to produce a judicially manageable standard. In response, this Article proposes that the nondelegation doctrine be transformed into a series of nondelegation doctrines, each …

The New Disestablishments, Marc O. Degirolami

Scholarly Articles

This Article attempts to map out a set of social and legal phenomena-features of what it calls the new establishment, responses to it, and possible implications of dissenting new disestablishments-without offering an evaluation either of the new establishment or the new disestablishments. That is, this Article tries to point out the structural conditions within which claims of religious free exercise are now situated, but it does not opine on the morality or justice of the general social structure or the dissenting views that it discusses. Like everyone, I have my views about these subjects, but I have tried, as much …

Solving The Procedural Puzzles Of The Texas Heartbeat Act And Its Imitators: The Limits And Opportunities For Offensive Litigation, Charles W. "Rocky" Rhodes, Howard M. Wasserman

Faculty Publications

Texas' Fetal Heartbeat Act, enacted in 2021 as Senate Bill 8, prohibits abortions following detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person,” regardless of injury. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.

In a series of articles, we explore how SB8's exclusive reliance on private enforcement creates procedural and jurisdictional hurdles to challenging the law's constitutional validity and obtaining …

Solving The Procedural Puzzles Of Texas’ Fetal-Heartbeat Law And Its Imitators: The Potential For Defensive Litigation, Charles W. "Rocky" Rhodes, Howard M. Wasserman

Faculty Publications

Texas' Fetal Heartbeat Act, enacted in 2021 as Senate Bill 8, prohibits abortions following detection of a fetal heartbeat, a constitutionally invalid ban under current Supreme Court precedent. But the method of enforcement in the Texas law is unique—it prohibits enforcement by government officials in favor of private civil actions brought by “any person,” regardless of injury. Texas sought to burden reproductive-health providers and rights advocates with costly litigation and potentially crippling liability.

In a series of articles, we explore how SB8's exclusive reliance on private enforcement creates procedural and jurisdictional hurdles to challenging the law's constitutional validity and obtaining …

Evolving Standards Of Irrelevancy?, Joanmarie Davoli

Faculty Scholarship

No abstract provided.

Nys Bar Association Annual Meeting Lecture Outline: The New Environmental Rights In Ny’S Constitutional Bill Of Rights, Nicholas A. Robinson

Elisabeth Haub School of Law Faculty Publications

It is too easy this winter to miss the signature Human Rights event in New York, the overwhelming vote last November 4^th to recognizing the Human Right to the Environment. Competition for our attention is fierce: the Pandemic, political rivalries playing out in Washington, D.C., and angst about extreme weather events and other climate change impacts. So, I welcome this opportunity to illuminate the hope and promise of Article 1, Section 19 in New York’s Bill of Rights: “Each Person shall have a right to clean air and water, and a healthful environment.” Most New York lawyers have yet …

The New Major Questions Doctrine, Daniel Deacon, Leah Litman

Law & Economics Working Papers

This article critically analyzes significant recent developments in the major questions doctrine. It highlights important shifts in what role the majorness of an agency policy plays in statutory interpretation, as well as changes in how the Court determines whether an agency policy is major. After the Supreme Court’s October 2021 term, the “new” major questions doctrine operates as a clear statement rule that directs courts not to discern the plain meaning of a statute using the normal tools of statutory interpretation, but to require explicit and specific congressional authorization for certain agency policies. Even broadly worded, otherwise unambiguous statutes do …

The Sec's Fight To Stop District Courts From Declaring Its Hearings Unconstiutional, Linda Jellum

Articles

Can the Securities and Exchange Commission (SEC) unilaterally deny a United States citizen the right to challenge the constitutionality of the agency's administrative hearings in district court? The SEC thinks so, but it makes no sense for these constitutional challenges to be brought in the very proceeding that allegedly, and likely, violates the U.S. Constitution. The appellate courts mostly agreed with the SEC, until recently when the Fifth Circuit held that the district courts should hear these claims. Given this circuit split, this issue will soon reach the Supreme Court, making this Article extremely timely. The Securities Exchange Act of …

The Role Of Emotion In Constitutional Theory, J. Joel Alicea

Scholarly Articles

Although the role of emotion in law has become a major field of scholarship, there has been very little attention paid to the role of emotion in constitutional theory. This Article seeks to fill that gap by providing an integrated account of the role of emotion within the individual, how emotion affects constitutional culture, and how constitutional culture, properly understood, should affect our evaluation of major constitutional theories.

The Article begins by reconstructing one of the most important and influential accounts of emotion in the philosophical literature: that of Thomas Aquinas. Because Aquinas’s description of the nature of emotion accords …

The Meaning Of Kansas: Lessons From A Pro-Life Defeat, Elizabeth Kirk

Scholarly Articles

The recent defeat of a pro-life constitutional amendment in Kansas was not a consequence of strategic overreach, nor was it a rebuke of Dobbs. In fact, it followed from the difficulty of communicating complex legal and political principles, as well as navigating the fear and distortion generated by abortion advocates and their media allies. To help secure a pro-life future, we must learn the correct lessons of the Kansas loss, including the need to harness the emotional power of truthful narrative to shape political choices.

Reasoning V. Rhetoric: The Strange Case Of “Unconstitutional Beyond A Reasonable Doubt”, Hugh D. Spitzer

Articles

An odd formulation has frequented American constitutional discourse for 125 years: a declaration that courts should not overturn a statute on constitutional grounds unless it is “unconstitutional beyond a reasonable doubt.” This concept has been thought of as a presumption, a standard, a doctrine, or a philosophy of coordinate branch respect and judicial restraint. Yet it has been criticized because “beyond a reasonable doubt” is at root an evidentiary standard of proof in criminal cases rather than a workable theory or standard for deciding constitutional law cases. This article discusses the history and use of “unconstitutional beyond a reasonable doubt,” …

Constitutional Authority, Common Resources, And The Climate, Anthony L. Moffa

Faculty Publications

This work sets out to re-examine and challenge the history of the property clause with an eye towards increased congressional reliance on it in the face of daunting threats to our natural environment. No one could seriously question the primary motivations of the Framers, but that does not foreclose the importance of searching for secondary motivations that deepen our understanding of arguably the Constitution’s most explicitly environmental provision. Eugene Gaetke’s work in the 1980’s and Peter Appel’s work twenty years later laid the groundwork for the argument here by pushing back on the originalist argument for a narrow interpretation of …

The Use And Abuse Of Domestic National Security Detention, Nicole Hallett

Seattle University Law Review

Are people convicted of terrorism-related offenses so dangerous that we must bend the Constitution to keep the public safe? Or should we treat them like people who commit other crimes—by prosecuting, convicting, sentencing, and then releasing them after they have served their criminal sentences? Can we trust the government to use the power to detain people without criminal charge without abusing it? The case of Adham Amin Hassoun raises these questions. Prosecuted after 9/11 for providing support to Muslims abroad in the 1990s, and sentenced under the United States’ expansive material support laws, Hassoun avoided a life sentence only to …