Constitutional Law Commons^™

Appealing Compelled Disclosures In Discovery That Threaten First Amendment Rights, Richard L. Heppner Jr.

Law Faculty Publications

Last year, the Supreme Court held in Americans for Prosperity Foundation v. Bonta that a California anti-fraud policy compelling charities to disclose the identities of their major donors violated the First Amendment. That holding stems from the 1958 case NAACP v. Alabama where the Court held that a discovery order compelling the NAACP to disclose the names of its members violated the First Amendment right of free association because of the members’ justifiable fear of retaliation.

In the over sixty years since NAACP v. Alabama, the Court has only decided a handful of cases about how compelled disclosures of …

El Juicio Político O Impeachment En Los Estados Unidos, Robert S. Barker

Law Faculty Publications

I. El origen ingles -- II. La constitución de los estados unidos -- III. El primer caso: Blount -- IV. El caso Chase -- V. El caso Johnson -- VI. El caso Belknap -- VII. La controversia Watergate, 1972-1974 -- VIII. Los casos Clinton y Trump -- IX. Los casos contra jueces de tribunales federales inferiores, 1873-2010 -- X. El caso Walter Nixon -- XI. Cuestiones no resueltas -- XII. Conclusión -- XIII. Bibliografía.

Compelled Speech And Proportionality, Alexander Tsesis

Faculty Publications & Other Works

This Article argues for a proportional First Amendment approach to compelled speech jurisprudence. It discusses the evolution of doctrine and how it led to recent opinions finding unconstitutional consumer protection, health disclosure, and collective bargaining statutes. In place of the currently formalistic approach, the Article argues for a transparent balancing of interests to avoid litigants’ opportunistic reliance on categorical First Amendment doctrines. Missing from the recent decisions that relied on the compelled speech doctrine is any systematic or contextual weighing of private and public concerns about disclosure regulations. The Roberts Court has been rather formalistic and categorical in its compelled …

Was Justice Ginsburg Roe-Ght?: Reimagining U.S. Abortion Discourse In The Wake Of Argentina's Marea Verde, Kim D. Ricardo

Mitchell Hamline Law Review

No abstract provided.

The Runaway Jury Of Joaquín 'El Chapo' Guzmán; Or Dishonesty Only Our Justice System Could Ratify, Sean Roman Strockyj

Mitchell Hamline Law Review

No abstract provided.

The Demise Of The Bivens Remedy Is Rendering Enforcement Of Federal Constitutional Rights Inequitable But Congress Can Fix It, Henry Rose

Faculty Publications & Other Works

A federal statute, 42 U.S.C. 1983, allows a person whose federal constitutional rights are violated by state actors to sue them for damages to compensate for the harm caused by the constitutional violations. There is no analogous federal statute that allows a person whose federal constitutional rights have been violated by federal actors to sue them for damages to compensate for the harm caused by the constitutional violations. The United States Supreme Court allowed Webster Bivens, a man who sued federal law enforcement officials for falsely arresting and physically abusing him in violation of his Fourth Amendment rights, to sue …

The Supreme Court And The People: Communicating Decisions To The Public, Barry Sullivan, Ramon Feldbrin

Faculty Publications & Other Works

Although the individual Justices of the Supreme Court frequently speak to the public, the Court as an entity holds fast to the purportedly ancient principle that courts should speak only through their official written opinions—the meaning of which is for others to figure out. Over the years, the Court’s decisions have become more complex, prolix, and fractured, making it difficult and time-consuming for anyone outside the professional elites to determine what the Court has held. Even journalists, who attempt to explain the Court’s decisions to the public, struggle to make sense of the Justices’ opinions under the pressures generated by …

Denying The Violence: The Missing Constitutional Law Of Conquest, Juan F. Perea

Faculty Publications & Other Works

If against these Indians, the end proposed should be their extermination, or their removal beyond the lakes or Illinois [R]iver. The same world will scarcely do for them and us. —Thomas Jefferson to George Rogers Clark, 1780

The United States committed at least two original sins. The one, slavery, is well known. The other, conquest, is both obvious and unknown at the same time.

The fact of conquest is proven by the sheer magnitude of the land transfer from indigenous people to white Americans. Before the conquest, native Americans possessed all 1.9 billion acres of the continental United States. After …

Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed H. Shugerman

Faculty Scholarship

The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a “removal of context.” This article focuses on the “executive power” part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England’s limited monarchy: the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a “royal prerogative" or a default royal power. The …

Nomos And Nation: On Nation In An Age Of "Populism", John Valery White

Scholarly Works

Robert Cover's Nomos and Narrative points to the need to recognize a second, novel dimension for understanding rights. His concept of nomos, applied to competing notions of nation in pluralistic societies, suggests that the current dimension for understanding rights, which conceives of them fundamentally as protections for the individual against the state, is too narrow. Rather a second dimension, understanding rights of individuals against the nation, and aimed at ensuring individuals' ability to participate in the development of an idea of nation, is necessary to avoid "a total crushing of the jurisgenerative character" of nomoi by the state, or by …

What Did Those Sixteen Justices Say?, Leslie C. Griffin

Scholarly Works

Everyone is finally noticing that the current Supreme Court is changing its jurisprudence on religious freedom. The commentators are finally paying more attention to the fact that seven of the Court's current Justices were raised Catholic. What role have Catholics played in the Supreme Court's history? This article traces their contributions on religious freedom and civil rights, starting with Chief Justice Taney and ending with Justice Barrett.

Regulatory Constitutional Law: Protecting Immigrant Free Speech Without Relying On The First Amendment, Michael Kagan

Scholarly Works

No abstract provided.

Supreme Risk, Benjamin P. Edwards

Scholarly Works

While many have discussed the social issues that might arise because of a majority-conservative Supreme Court, one critical consequence of the current Court has been overlooked: the role of the Court in generating or avoiding systemic risk. For some time, systemic financial risk has been regulated by a mix of self-regulatory organizations (SROs), such as the Depository Trust Corporation, and federal regulators such as the Financial Stability Oversight Council (FSOC). However, the Court's recent jurisprudence now creates real risk that federal courts will declare keystone SROs unconstitutional because they do not fit neatly into an eighteenth-century constitutional framework.

SROs are …

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

Scholarly Works

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 must …

Making Privacy Injuries Concrete, Peter Ormerod

Washington and Lee Law Review

In recent years, the U.S. Supreme Court has repeatedly said that the doctrine of Article III standing deprives the federal courts of jurisdiction over some lawsuits involving intangible injuries. The lower federal courts are carrying out the Supreme Court’s instructions, and privacy injuries have borne the brunt of the Court’s directive. This Article identifies two incoherencies in the Court’s recent intangible injury decisions and builds on the work of privacy scholars to fashion a solution.

The first incoherency is a line-drawing problem: the Court has never explained why some intangible injuries create an Article III injury in fact while others …

Sex, Money, And Free Speech: The Many Harms Of Fosta/Sesta, Desmond Mantle

CMC Senior Theses

This thesis tracks the development of the Fight Online Sex Trafficking Act/Stop Enabling Sex Traffickers Act, or FOSTA/SESTA, which became federal law in 2018. The law's passage followed as a natural consequence of popular concerns about human trafficking. Congress passed the legislation by large margins in both houses given bipartisan opposition to sex trafficking. This thesis identifies plausible reasons for the only two Senate votes against the bill: those of Senators Rand Paul and Ron Wyden. Though these senators came from opposite sides of the aisle, they shared concerns about the future of free speech online and the potential failure …

Survival Voting And Minority Political Rights, Douglas M. Spencer, Lisa Grow Sun, Brigham Daniels, Chantel Sloan, Natalie Blades

American University Law Review

The health of American democracy has literally been challenged. The global pandemic has powerfully exposed a long-standing truth: electoral policies that are frequently referred to as “convenience voting” are really a mode of “survival voting” for millions of Americans. As our data show, racial minorities are overrepresented among voters whose health is most vulnerable, and politicians have leveraged these health disparities to subordinate the political voice of racial minorities.

To date, data about racial disparities in health has played a very limited role in assessing voting rights. A new health lens on the racial impacts of voting rules would beneficially …

Misinformation About Marijuana: Commercialization, Consolidation, And The New First Amendment, David Angelatos

American University Law Review

From “Reefer Madness” to “This Is Your Brain on Drugs,” Americans have lived through decades of anti-cannabis propaganda. Legalization is poised to turn this information environment on its head, unleashing a torrent of corporate-funded, pro-cannabis misinformation that regulators cannot prevent or dispel. This appears to be a problem caused by the Supreme Court’s creation and expansion over the past fifty years of First Amendment protections for corporate and commercial speech. Although these doctrines contribute substantially to the problem, this Article shows how it originates in lax antitrust policy rather than expansive First Amendment jurisprudence.

If Congress follows current legalization trends …

Setting The Record Straight: Why Threats Of Physical Violence Made Towards Inmates Violate The Eighth Amendment, Alyssa M. Knappins

Roger Williams University Law Review

No abstract provided.

Rhode Island And Sports Law, Adam Epstein

Roger Williams University Law Review

No abstract provided.

Keeping Our Republic, Ashlee A. Paxton-Turner

Law Faculty Publications

In championing the Constitution at a time when most Americans hardly felt any national allegiance, Alexander Hamilton insisted on “think[ing] continentally.” In other words, if the fledging nation were going to survive, the loose confederation of states formed under the Articles of Confederation was not the answer. For many Americans in 1787, the idea of abandoning  this loose confederation was a hard sell. But Hamilton, along with James Madison and John Jay, understood that a new structure of government was needed. And it is here—with this colonial trio—that our story begins. ...

State V. Depina, 245 A.3d 1222 (R.I. 2021), Christopher Minicucci

Roger Williams University Law Review

No abstract provided.

Ten Years Later, Prea Does Not Live Up To Its Goal: Amending The Statute To Reduce Discriminatory Violence Against Transgender Prisoners, Carla Aveledo

Roger Williams University Law Review

No abstract provided.

2021 Surveys Of Rhode Island Law

Roger Williams University Law Review

No abstract provided.

State V. Ricker, 252 A.3d 721 (R.I. 2021), Victor M.P. Vieira

Roger Williams University Law Review

No abstract provided.

Signed, Sealed, Delivered? Problems With The Use Of Signature Matching To Verify Mail Voter Identity

Florida A & M University Law Review

During the 2020 election, the basic struggle to balance ballot access and election integrity played out in a more public fashion than at any time in recent memory. This begs several important questions. First, how did the American election system get to this point? The legal standards governing election law have long been debated and that uncertainty unleashed a flood of litigation in 2020. Second, why use signature matching—a practice which is methodologically unsound and steadily falling out of use—at all? The use of handwritten signatures to verify identity rather than to evidence attestation is on the decline in other …

Bias And Sexism: The Racial And Gender Wage Gap Affecting Black Women

Florida A & M University Law Review

The objective of this Article is to address the racial wage gap between Black and White women and provide a solution. Part I of this Article will discuss the history of Black women and White women in the workforce. Part II will discuss the gender wage gap as it applies to Black and White women in the 21st century. Part III will discuss how Title VII of the Civil Rights Act of 1964 and the Equal Pay Act has failed to address the gender and race issues that Black women face when it comes to work wages. Part IV will …

Resetting The Foundations: Renewing Freedom Of Expression Under Section S.2(B) Of The Charter, Jamie Cameron

Articles & Book Chapters

The 40^th anniversary of the Canadian Charter of Rights and Freedoms on April 17, 2022 is a time for reckoning, and an opportunity to ready s.2’s fundamental freedoms for the future. In particular, this article offers a moment of pause to invest in s.2(b)’s guarantee of expressive freedom and its renewal. The discussion begins by addressing s.2(b)’s “fault lines”, which are embedded in the jurisprudence at both stages of the analysis – breach as well as justification. What then follows is a proposal for renewal that begins, under s.2(b), with a theory or principle of freedom and a revised …

Revitalizing Tribal Sovereignty In Treatymaking, David H. Moore, Michalyn Steele

Faculty Scholarship

In the current model of federal-Indian relations, the United States claims a plenary legislative power, as putative guardian, to regulate Indian tribes. Under this model, tribes are essentially wards in a state of pupilage. But the federal-tribal relationship was not always so. Originally, the federal government embraced, even promoted, a more robust model of tribal sovereignty in which federal-Indian treatymaking and diplomacy figured prominently. Through treaties, the United States and tribes negotiated territorial boundaries, forged alliances, facilitated trade, and otherwise managed their relations. In 1871, Congress attempted to put an end to federal-Indian treatymaking by purporting to strip tribes of …

Distrust, Negative First Amendment Theory, And The Regulation Of Lies, Helen Norton

Publications

This symposium essay explores the relationship between “negative” First Amendment theory—rooted in distrust of the government’s potential for regulatory abuse—and the government’s regulation of lies. Negative First Amendment theory explains why many lies are protected from governmental regulation—even when the regulation neither punishes nor chills valuable speech (as was the case, for example, of the statute at issue in United States v. Alvarez). But negative theory, like any theory, also needs limiting principles that explain when the government’s regulation is constitutionally justifiable.

In my view, we engage in the principled application of negative theory when we invoke it in (the …