Constitutional Law Commons^™

Shadows Of The Crown: The Virtue Of Equilibrium In American Sovereign Immunity, William T. Olmstead

Cleveland State Law Review

Under the doctrine of sovereign immunity, the federal and state governments of the United States cannot be sued or prosecuted unless they voluntarily waive their own impunity. In recent decades, the Supreme Court has expanded the scope of the sovereign immunity of the state governments. This Note argues that such an expansion is a profound and shortsighted mistake. It proposes that the most effective way to balance governmental functionality with civic accountability is to pass and ratify a constitutional amendment that solidifies national sovereign immunity and abolishes state sovereign immunity. It argues that such action is necessary to ensure the …

Custodians Of Civility, Defenders Of Democracy, Guardians Of Justice, Lee Fisher

Cleveland State Law Review

On October 27, 2023, Cleveland State Law Review hosted an in-person Symposium to convene academics, legal practitioners, community advocates, and judges for a robust and timely conversation about democracy’s promise and the fight for its future. This Symposium piece will reiterate some of the conversations by panelists discussing the use of law to become Guardians of Justice, the relationship between education and democracy, and the Ohio Constitution as a tool for recapturing the state’s democratic values.

Democracy & The Ohio Constitution – Recapturing The Innovative Spirit Of The 1912 Ohio Constitutional Convention, Melody J. Stewart

Cleveland State Law Review

On October 27, 2023, Cleveland State Law Review hosted an in-person Symposium to convene academics, legal practitioners, community advocates, and judges for a robust and timely conversation about democracy’s promise and the fight for its future. This Symposium piece will reiterate some of the conversations by panelists discussing the use of law to become Guardians of Justice, the relationship between education and democracy, and the Ohio Constitution as a tool for recapturing the state’s democratic values.

The Decline Of Representation Reinforcement In The Supreme Court: Increasing Deference To The Political Process, Jonathan L. Entin

Cleveland State Law Review

The Supreme Court has often interpreted the Constitution with an eye toward ameliorating failures of the political process. Over the past two decades, however, the Court has retreated from that concern with representation reinforcement. This article examines decisions upholding restrictive voter identification laws, making it more difficult to prove violations of the Voting Rights Act, and preventing federal courts from hearing claims of partisan gerrymandering. Some decisions that seem sympathetic to failures of the political process will not really promote representation reinforcement, and the Court’s most recent cases further reinforce the Court’s skepticism of claims of failures of the political …

Threading The Needle In Extreme Partisan Gerrymandering Cases, Michael Gentithes

Cleveland State Law Review

Recent Supreme Court jurisprudence paints a grim picture for future reform to address extreme partisan gerrymandering. The decisions in Rucho v. Common Cause and Moore v. Harper appear to foreclose progress at both the federal and state level. Reformers must neither create unmanageable legal standards for adjudication in federal litigation, nor ask state courts to transgress ordinary bounds of judicial review when interpreting state laws that might address gerrymandering.

But there remains a path forward that focuses on clear and detailed state constitutional mandates to curb gerrymandering practices. Beneath their rhetoric, these decisions support clear legal rules over broader democratic …

A Proposal To Rebalance Direct Democracy In The Ohio Constitution, Mark Wagoner

Cleveland State Law Review

On October 27, 2023, Cleveland State Law Review hosted an in-person Symposium to convene academics, legal practitioners, community advocates, and judges for a robust and timely conversation about democracy’s promise and the fight for its future. This Symposium piece will reiterate some of the conversations by panelists discussing the use of law to become Guardians of Justice, the relationship between education and democracy, and the Ohio Constitution as a tool for recapturing the state’s democratic values.

Improper Indeterminate Incarceration: Navigating The Constitutional Quandaries Of The Reagan Tokes Law's Powers And Procedures, Sophie M. Piteo

Cleveland State Law Review

This Article advocates for an amendment to the statutory provisions that make up Ohio’s indefinite sentencing scheme to better protect offender’s constitutional rights. Through an analysis of the Reagan Tokes Law and the Ohio Supreme Court’s ruling in State v. Hacker, this Article traces the evolution of Ohio’s indefinite sentencing framework, which was reinstated in 2019. It contrasts the current scheme with the previously invalidated, but very similar, Bad Time Law, which was struck down in 2000 for violating the separation of powers clause and due process rights. While the Reagan Tokes Law emerged from concerns for public safety …

Direct Democracy: Ohio Style, Steven H. Steinglass, Ernest M. Oleksy

Cleveland State Law Review

This Article is an expansion of comments by Steven H. Steinglass at a Symposium on Democracy sponsored by the Cleveland State Law Review and held on October 27, 2023. The Symposium looked broadly at threats to democracy, but the panel on which he participated focused more narrowly on the Ohio Constitution and Democracy. The Article reviews the history of direct democracy in Ohio with an emphasis on the constitutional initiative. Part I of this Article discusses the historical origins of direct democracy in Ohio and the iconic Ohio Constitutional Convention of 1912 that proposed Ohio’s direct democracy amendment. Particular …

Egbert V. Boule And The Dwindling Bivens Doctrine, Luke Smith

MC Law Review

No abstract provided.

On The Nature Of Regulating Medication Abortion: A Post-Dobbs Analysis On The Legality Of Emerging Efforts To Ban Federally Approved Mifepristone, Yann Kaufman

MC Law Review

No abstract provided.

A Fundamental Failing: The Mississippi Judiciary's Abrogation Of Its Constitutional Duty, Brad Robertson

MC Law Review

No abstract provided.

Detangling Knots In The Narratives: A Response To Theunis Roux, Aparna Chandra

Articles

This article is part of a symposium on Theunis Roux's article titled 'Grand Narratives of Transition and the Quest for Democratic Constitutionalism in India and South Africa', which proposes two dominant narratives about the constitutional transitions in India and South Africa. The author focuses on Indian constitutional praxis to evaluate the claims of both. Part A engages with Roux’s version of the 'Liberal Progressive Narrative' and demonstrates what post-liberal accounts of the Indian constitutional transition offers that differs from the standard narrative as presented by Roux. Part B turns to the 'Culturalist Grand Narrative' and teases out the differences between …

"Legally Magic" Words: An Empirical Study Of The Accessibility Of Fifth Amendment Rights, Roseanna Sommers, Kate Weisburd

Northwestern University Law Review

Fifth Amendment case law (including Miranda v. Arizona) requires that individuals assert their right to counsel or silence using “explicit,” “clear,” and “unambiguous” statements—or, as some dissenting judges have lamented, using “legally magic” words. Through a survey of 1,718 members of the U.S. public, we investigate what ordinary people believe it takes to assert the right to counsel and the right to silence. We then compare their perceptions against prevailing legal standards governing invocation.

With respect to the right to counsel, the survey results indicate that members of the public have a uniformly lower threshold for invocation than do …

Rising Temperatures, The Prison Litigation Reform Act, And The Heat Death Of Human Dignity In Texas Prisons, Brianne Wylie

Northwestern University Law Review

This Note seeks to shed light on the life-threatening danger of extreme heat in un-air-conditioned Texas prisons. The Prison Litigation Reform Act (PLRA) starkly limits the relief available to those suffering and dying in these prisons. This Note proposes an amendment to the legislation that could create a path toward lasting relief for incarcerated people. After analyzing the effects of increasing heat on the particularly vulnerable prison population, this Note analyzes how the Supreme Court and the Fifth Circuit have handled claims alleging constitutionally violative prison conditions under the Eighth Amendment—in short, ineffectively, if at all. This Note then details …

Criminal Juror Challenges And Csli: A Rule 16 Revision To Maintain Impartial Juries, Ivy Kaplan

Northwestern University Law Review

The Sixth Amendment of the U.S. Constitution guarantees criminal defendants “the right to a speedy and public trial by an impartial jury of the State.” Voir dire, the procedure during which the prosecution and the defense may challenge prospective jurors for cause or exercise peremptory challenges, purports to uphold this right. When the prosecution has access to cellular geolocation data on prospective jurors that the defense lacks, however, it may jeopardize the defendant’s Sixth Amendment rights.

This Note proposes a solution to that problem in the form of an addition to Rule 16 of the Federal Rules of Criminal Procedure. …

The Seventh Amendment Right To Jury Trial In The Administrative State: Recognizing The Dangers Of The Constitutional Moment, Martin H. Redish, Samy Abdelsalam

Notre Dame Law Review

One prominent constitutional scholar has sought to legitimize this constitutional transformation through resort to a strange and controversial analytical model he describes as the “constitutional moment.” In this Article, we plan to establish two important points: (1) there exists no principled mode of analysis of the Seventh Amendment right to jury trial that justifies the Court’s categorical dichotomy between Article III and non–Article III forums for purposes of the right’s applicability, and (2) while the theory of the “constitutional moment” would in fact justify the Court’s insulation of the administrative state from Seventh Amendment applicability, reliance on such a theory …

Non–Article Iii Federal Tribunals: An Essay On The Relation Between Theory And Practice, Richard H. Fallon Jr.

Notre Dame Law Review

Since the 1980s, the Supreme Court’s decisions involving the permissible uses of non–Article III federal tribunals have repeatedly invoked two competing theories. A “historical-exceptions” or “formalist” model would insist that only Article III judges can exercise federal adjudicative power except in three categories of cases that history marks as exceptional. A rival approach, often labeled “functionalism,” would allow further deviations from the historical norm if they are supported by sound practical justifications and do not threaten the fundamental role of the Article III judiciary within the separation of powers. This Article explores the relationship between theory and practice in explaining …

The Public/Private Rights Critics, Ann Woolhandler, Michael G. Collins

Notre Dame Law Review

In Adjudication in the Political Branches, Professor Caleb Nelson provided an influential account of when federal adjudication might take place outside of the Article III courts. The ability of Congress to place adjudicative matters outside of Article III courts largely depended on whether the matter might be considered one of public or private rights. Nelson also traced changes over time that undermined the coherence of the traditional public/private right distinction, and recommended returning to the traditional model. Later writers have attempted either to qualify or refute the existence of the public/private-rights framework by studying particular areas of law that …

Thurgood Marshall Memorial Lecture: 80 Years After Korematsu V. U.S.: It's All About Us 10-29-2024, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Despair For Democracy, Bennett L. Gershman

Pace Law Review

In the convoluted terrain of American democracy, the proliferation of lies, misinformation, conspiracy theories, and paranoid thinking has emerged as a pervasive force, undermining the foundational principles upon which the nation was built. This article embarks on a penetrating exploration of the multifaceted challenges posed by these phenomena, exacerbated by the divisive rhetoric and provocative incitements to violence perpetuated by the Trump administration. As the fabric of truth unravels, the rule of law stands as a critical linchpin in preserving the integrity of democracy, serving as a bulwark against the encroachment of authoritarianism and the unchecked spread of disinformation.

Against …

Free Exercise Challenges To Entheogen Prohibitions: Precedents, Principles, And Issues, Kevin Chamow

Pace Law Review

This paper examines the conditions for the possibility of future

challenges to prohibitions against the cultivation, distribution, and use of entheogens—substances which reliably induce religious experiences in their users—based on the Free Exercise Clause of the First Amendment. Smith no longer applies to federal prohibitions against entheogens, because of Religious Freedom Restoration Act (RFRA). Under the current Gonzalez framework, the Court is given the difficult task of evaluating the cost of the claimant’s exemption against the state’s interest in the general ban; including how the exemption would impact enforcement of the general ban. This is essentially predictive systems-theory and policymaking, …

Subjective Deliberate Indifference: The Correct Standard For Pre-Trial Detainees' Fourteenth Amendment Claims For Inadequate Medical Care, Douglas Weeks

Pace Law Review

This article examines the legal standard of “subjective deliberate indifference” as it pertains to the Fourteenth Amendment claims of pre-trial detainees facing inadequate medical care. With the Supreme Court’s evolving interpretation of constitutional protections for incarcerated individuals, this piece argues that subjective deliberate indifference offers a more appropriate framework for evaluating the state’s duty to provide adequate medical treatment. By analyzing relevant case law, including the significant distinctions between pre-trial detainees and convicted prisoners, the article highlights the necessity of considering the mental state of correctional officials in medical negligence claims. Furthermore, it explores the implications of this standard on …

Samuel Alito's Dobbs Opinion And The Resurrection Of Second-Class Citizenship, Sue Mcgrath

Pace Law Review

This article examines Justice Samuel Alito’s opinion in the landmark Dobbs v. Jackson Women’s Health Organization case, analyzing its implications for women’s rights and reproductive freedom in the United States. By contextualizing Alito’s arguments within a historical framework, the piece argues that his decision represents a significant regression in civil rights, effectively resurrecting a form of second-class citizenship for women. The analysis delves into the legal reasoning employed, the socio-political ramifications of the ruling, and the broader implications for gender equality. Ultimately, the article calls for a critical reevaluation of judicial interpretations that prioritize certain rights over others, highlighting the …

Why Not More Seats? Increasing The House Of Representative's Size Using The Least Populous State Solution, Jennifer Kindred Mitchell

Pace Law Review

Representative democracy is for the people, by the people. But what happens when the connection between the people’s representative and their constituents erodes over time due to increased population and district size? The United States House of Representatives’ membership has been capped at 435 for almost 100 years leading to an increase in the average district size from 280,875 in 1930 to 761,169 in 2020. House membership and constituents represented by each member is out of balance, causing a decrease in representative democracy, large over and underrepresented district disparities, and feelings of disenfranchisement by citizens. Therefore, this paper premises that …

The Punishment Of Cruel And Unusual Conditions: Extending The Purely Objective Standard Adopted In Kingsley V. Hendrickson To Claims Of Deliberate Indifference, Samantha M. Davis

Touro Law Review

In 2015, the Supreme Court in Kingsley v. Hendrickson held that a pretrial detainee claiming excessive force on the part of the state must only show that the force used was objectively unreasonable. Prior to the adoption of the purely objective standard, many courts around the country were analyzing such cases through a subjective standard to determine whether the officers subjectively knew that the force used against a pretrial detainee was unreasonable. The absence of this objective standard essentially allowed state officials to use excessive force against pretrial detainees without violating an individual’s Constitutional rights. The Supreme Court reasoned that …

The Appeal Of The Apex Court In Botswana: The Case Of Carter Morupisi V. State, Muna B. Ndulo, Louis Koen, Samantha Smit

SAIPAR Case Review

This case note discusses the Botswana Court of Appeal's ruling in Carter Morupisi v State, which addressed the High Court's unprecedented attempt to review a decision of the Court of Appeal. The commentary highlights the fundamental principle of judicial hierarchy and the separation of powers in Botswana's constitutional framework. The Court of Appeal emphatically rejected the High Court's jurisdiction to review its judgments, reaffirming its position as the final arbiter (highest judicial authority). The authors emphasise that while the High Court may raise constitutional questions with regards to Apex courts decisions, it cannot adjudicate on them, reinforcing the concept of …

Reimagining Judicial Review Of Student Requests For Remote Instruction As An Ada Accommodation In Higher Education, Hannah E. Auten

Chicago-Kent Law Review

No abstract provided.

Correcting 50 Years Of Confusion On The Lmra Preempting Or Precluding Rico: A Missed Opportunity, Connor Bernard

Chicago-Kent Law Review

No abstract provided.

Takings, Original Meaning, And Applying Property Law Principles To Fix Penn Central, John M. Groen

Touro Law Review

No abstract provided.

Livin' On A Legislative Prayer: How Prayer At A School Board Meeting Survives Under An Exception To The Establishment Clause, Brian Muff

Touro Law Review

This Note discusses the circuit split between the Ninth Circuit and the Fifth Circuit on whether prayer should be permitted to open up a school board meeting. First introducing the topic and explaining the history of legislative prayer in America, the Note then discusses governing Supreme Court precedent concerning school prayer and legislative prayer. After analyzing the cases that are the subject of the circuit split, the Note concludes with a recommendation that the Supreme Court permit the recitation of prayer to begin a school board meeting, citing the commonalities between a school board and a legislature and making three …