Constitutional Law Commons^™

The Next Generation Of Free Expression Scholarship: A Very Short Manifesto (In Memory Of Fred Schauer), Mark Tushnet

William & Mary Bill of Rights Journal

This Manifesto begins with a discussion of the accomplishments of the prior generation of free expression scholarship. The core of the Manifesto starts with a description of the idea of epistemic authority and draws upon Leiter’s analysis to show its importance in free expression theory. It emphasizes, with Leiter, that epistemic authority is relational: between and among epistemic authorities, and between such authorities and “ordinary” citizens (that is, those who aren’t near the core of an epistemic community that, as a collective, defines the community’s core and boundaries).

That discussion is followed by a description of challenges to the idea …

But For A Free Press: A Response To Press Freedom Skeptics, Kevin F. O'Neill, Patrick J. Charles

Law Faculty Articles and Essays

This Article is divided into three Parts. Part I will outline the history-in-law case forwhy the historical record sufficiently supports recognizing distinct constitutional press freedoms. Part II then provides a history-in-law response to some of the most common arguments made by press freedom skeptics as to why distinct constitutional press freedoms should not be recognized by the courts. Lastly, Part III makes the case for why the recognition of distinct constitutional press freedoms should become a jurisprudential reality and provides a roadmap to accomplish this.

Conservation Advocates Zambia Limited V The Attorney General (2023/Ccz/0018) [2024] Zmcc 6, Emmanuel N. Nyambe

SAIPAR Case Review

The author explores Conservation Advocates Zambia Limited v The Attorney General, contrasting the majority’s application of the constitutional avoidance doctrine with a forceful dissent. The majority declined to hear an environmental petition, classifying the grievances as statutory rather than constitutional. The author aligns with the dissent, arguing that such reasoning sidesteps the judiciary’s constitutional mandate to protect and promote environmental rights. The case presents a fundamental choice for the Court: whether to treat the Constitution as a source of aspirational guidance or as a directly enforceable instrument of environmental accountability and public participation.

Goodbye, Zoning?, Michael Allan Wolf

UF Law Faculty Publications

American zoning is under attack on multiple fronts. The concerns of zoning's many critics range from social and racial justice, to private property rights, to the extreme shortage of affordable housing, to climate-change resilience and sustainability. A growing number of voices have called for, at a minimum, the elimination of single-family zones; some even champion the abolition of this ubiquitous method of American land use regulation. This Article is the first detailed look at what would happen if zoning's critics got their way. The most efficient means for erasing zoning from American law would be for the U.S. Supreme Court …

Misusing Eminent Domain: Pretextual Takings For A Traditional Public Use, Cameron P. Hellerman

Fordham Law Review

Eminent domain is a powerful tool at the disposal of local, state and federal governments. The Fifth Amendment to the U.S. Constitution imposes two conditions on this sovereign power: the taking must be for “public use,” and the condemner must pay “just compensation” to the property owner. There are minimal guardrails in place to police potential misuse of the eminent domain power in the courts. The U.S. Supreme Court equates “public use” with “public purpose” and applies a deferential standard of review to a condemner’s determination that a taking serves a public purpose. Nonetheless, the Court in Kelo v. City …

Nourishing The Living Tree: Vincent Macdonald And His Constitutional Thought, Preston Lim

Dalhousie Law Journal

Since the enactment of the Canadian Charter of Rights and Freedoms, Canadian judges have increasingly approached the Constitution through a living constitutionalist lens, adapting the Constitution to contemporary realities and treating the text as but one interpretive modality alongside purpose and context. The Supreme Court has rooted this living constitutionalism in the Judicial Committee of the Privy Council’s judgment, Edwards v Attorney General of Canada, wherein Lord Sankey introduced the metaphor of the “living tree.” Justice Robert Sharpe and Professor Patricia McMahon have suggested that the “living tree metaphor remained a forgotten footnote until 1982.” Indeed, more formalist approaches towards …

The Chilling Effects Of Dobbs, Jonathon W. Penney, Danielle Keats Citron, Alexis Shore Ingber

Articles & Book Chapters

The Supreme Court’s evisceration of the federal constitutional right to abortion has raised the specter of criminal and civil liability for abortion providers and patients. Police and prosecutors have easy access to commercial reservoirs of intimate data. As individual accounts made clear in the wake of the Dobbs v. Jackson Women’s Health Organization decision, corporate surveillance of intimate life chilled expressive activities, such as searching for information about reproductive health and using period tracking apps. Health professionals did not feel safe to speak out about the impact of new abortion laws. Harassment and threats directed at abortion clinics and at …

Clark Memorandum: Spring 2025, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Primary and Professional Identity
• Never Only Two Sides
• In Defense of Zion and Her People
• The Pursuit of Happiness

Isaac Mwanza And Zambia Civil Liberties Union (Zclu) V The Attorney General 2024/Ccz/008, Emmanuel Banda

SAIPAR Case Review

This contribution considers Isaac Mwanza and Zambia Civil Liberties Union (ZCLU) v Attorney General, a case challenging the constitutionality of longstanding penal provisions criminalising same-sex relations. The author takes issue with the Constitutional Court’s refusal to entertain the matter on jurisdictional grounds, arguing that it misconstrued the relationship between Articles 28 and 128 of the Constitution. By deferring entirely to the High Court on Bill of Rights issues, the author contends, the Constitutional Court has left a significant gap: legislation that may violate fundamental rights now lacks a clear constitutional forum for challenge. The piece underscores a persistent ambiguity in …

Coercing Virtue Or Superintending Constitutional Order? A Comment On Munir Zulu And Celestine Mukandila V Attorney General, O'Brien Kaaba, Emmanuel N. Nyambe

SAIPAR Case Review

In Munir Zulu and Celestine Mukandila v Attorney General, the Constitutional Court of Zambia intervened for the first time in a constitutional amendment process before a bill was tabled, asserting its authority to oversee executive conduct in line with constitutional principles. While the author commends the Court’s departure from a historically passive judiciary, a pointed critique is offered of the judgment’s conceptual shortcomings. The analysis highlights the Court’s conflation of constituent and constituted power, its reliance on an inaccurate historical account of past amendments, and the jurisdictional inconsistency it created with the earlier Bill 10 ruling, all of which weaken …

The Attorney General V Rajan Mahthani (Appeal No. 4 Of 2020) [2025] Zmsc (24 July 2025): Judicial Recusal And Why It Is Important To Strike A Balance, Mwami Kabwabwa

SAIPAR Case Review

This contribution examines The Attorney General v Rajan Mahthani, a Supreme Court ruling on judicial recusal. The author critically assesses the Court’s insistence on proving actual, extrajudicial bias as a prerequisite for recusal. Though the importance of shielding the judiciary from frivolous motions is acknowledged, the piece warns that the Court’s rigid stance, paired with its admonishing tone, may undermine the right to a fair hearing guaranteed under Article 18 of the Constitution. Drawing on South African and Kenyan jurisprudence, the author proposes adopting a “reasonable apprehension of bias” standard that respects judicial independence while safeguarding public confidence in the …

Originalism’S Precedent Problem, James Bernstein

Northern Illinois University Law Review

This paper explores the tension between originalism and stare decisis in judicial decision-making. Originalism, which seeks to interpret the Constitution as understood at the time of its ratification, has gained bipartisan acceptance among judges. However, this interpretive approach faces challenges regarding precedent: How should originalist judges handle past decisions that deviate from the original public meaning of the Constitution? The paper examines this issue, particularly in light of originalists’ varied stances on the role of precedent.

Some originalists, like Antonin Scalia and Amy Coney Barrett, acknowledge the need for stare decisis to maintain legal stability, albeit with allowances for overturning …

Redistricting And The Origins Of The Good Faith Presumption, Leonard C. Brahin

Barry Law Review

Evidentiary and substantive presumptions are a well-established tool that courts employ when addressing a variety of legal problems. These presumptions streamline litigation, avoid debate over minor disputes, and ensure that the most important issues can be addressed. But these same presumptions just as frequently close the courthouse doors on meritorious claims and preemptively shut down litigation where a disputed issue exists.

One area this occurs is redistricting. In the last fifty years, the Supreme Court of the United States has expanded its substantive presumptions in redistricting matters to permit facially discriminatory redistricting plans. By invoking the presumption of good faith, …

Privacy In The Age Of Platforms: How Digital Advancements Are Outrunning Our Constitution, Haleigh Fagundes

Capstone Projects and Master's Theses

This project analyzes the procedural history of Fourth Amendment doctrine in the Supreme Court. This timeline begins with the 1928 case of Olmstead v. United States and proceeds with recent cases that resolve more modern concerns such as location tracking via cell-cite information, as seen in Carpenter v. United States (2018). Prevalent cases are analyzed through both majority and dissenting opinions to demonstrate the entire Courts’ attitude towards the interpretation. Though more recently the Court has moved towards expanding the expectation of privacy that one can assume from the Fourth Amendment, digital privacy has yet to be incorporated. The research …

Development And Practice Of Tribal Community Planning: Ensuring Indigeneity In The Planning Process, Jared E. Munster, Ph.D.

American Indian Law Journal

No abstract provided.

Taking Back The Takings Clause: The Case For Compensating Innocent Property Owners Caught In The Crossfire Of Police Activity, Kathleen Collins

William & Mary Law Review

Part I of this Note will provide an overview of the history of the Takings Clause, the role of the police power in takings jurisprudence, and the necessity exception to takings. Specifically, Part I will demonstrate that (1) the gravity of physical government intrusions has led the Supreme Court to consistently treat such intrusions as per se takings, (2) any distinction between eminent domain and the police power exists in the context of regulatory takings, and (3) the necessity exception rests on a shaky foundation as a common law tort doctrine. Part II will refute Lech’s conclusion that law …

A Distinctive Court: A Glimpse Into The History And Significance Of The D.C. Circuit, Judge J. Michelle Childs

Fordham Law Review

Judge J. Michelle Childs serves on the U.S. Court of Appeals for the D.C. Circuit. Before her appointment, Judge Childs received a B.A. from the University of South Florida Honors College and a J.D. from the University of South Carolina School of Law. She also received Masters degrees from the University of South Carolina’s Darla Moore School of Business and from Duke University School of Law, as well as an Honorary Doctorate Degree from the University of South Carolina. After working in private practice for eight years, Judge Childs received an appointment to serve as the Deputy Director for the …

Does The Major Questions Doctrine Apply To The Federal Courts?, Michael Coenen, Seth Davis

Fordham Law Review

The new “major questions doctrine” (MQD) requires courts to apply a “distinct” approach to statutory interpretation when reviewing challenges to an agency action of “vast economic and political significance.” Under that approach, courts must assume that such an action exceeds the scope of that agency’s statutory authority unless there exists “clear congressional authorization” for it. In this Article, we examine whether this new rule for administrative agencies (or what we call the “agency MQD”) implies the existence of a similarly strong constraint on the federal courts’ power to interpret and apply statutes for themselves (or what we call the “judicial …

Abortion Travel Restrictions Under The Dormant Commerce Clause After National Pork Producers Council V. Ross, Katherine Bartley

Fordham Law Review

Since Dobbs v. Jackson Women’s Health Organization, twelve states have banned abortion entirely, and seven states have banned abortion earlier in pregnancy than the standard set in Roe v. Wade. As abortion access dwindles, patients increasingly cross state lines to seek reproductive healthcare. In response, antiabortion state officials and lawmakers have made efforts to restrict interstate travel for abortion care.

This Note examines abortion travel restrictions under the “Dormant” Commerce Clause doctrine, which limits state laws that burden interstate commerce. In 2023, the U.S. Supreme Court affirmed but narrowed the judge-made doctrine in National Pork Producers Council v. …

“Shipping” Away The Captive Audience Meeting, Nathan Kakalec

Fordham Law Review

On November 14, 2024, the National Labor Relations Board (NLRB) overturned seventy-six years of labor law precedent by banning captive audience meetings in Amazon.com Services LLC. Captive audience meetings, mandatory meetings where employers discuss unionization with their employees, were a powerful anti-union tool used by employers to coerce their employees into rejecting unionization. The NLRB argues that captive audience meetings are inconsistent with § 7 and § 8 of the National Labor Relations Act (NLRA). Employers reject the NLRB’s assertion and contend that banning captive audience meetings infringes on their First Amendment right to communicate their views on unionization. …

The Onondaga Nation's Land Claim: Rights Without A Remedy?, Larissa Speak

American Indian Law Journal

No abstract provided.

Case Law On American Indians: September 2023 - August 2024, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

The Imposition Of Constitutional Rights, Alvin Padilla-Babilonia

Michigan Law Review

One of the central principles of constitutionalism is that citizenship stands for equal rights under the law. According to this ideal, a U.S. citizen living in Puerto Rico or Guam should have the same constitutional rights as a citizen living on the mainland. However, throughout U.S. history, constitutional rights have been neither uniform nor centralized. While constitutional rights held importance, they coexisted with ideals of democratic self-governance and legal pluralism. Today, Supreme Court justices and legal scholars argue that all constitutional rights should apply in the territories. This view upholds citizenship, equal rights, and the rule of law. But the …

The Right To Grow Old, Jamal Greene

Faculty Scholarship

This chapter considers the status of a constitutional “right to grow old” under the US Constitution. Understood as a “positive” right – ensuring a certain minimum quality of life to people as they face the challenges of aging – such a right may seem unavailing given the austerity in respect to such rights that many lawyers associate with the US constitutional tradition. This chapter shows this view to be premature, at least. Unlike the kinds of positive rights overtly rejected in prior cases, such as rights to certain forms of social welfare or to racial equality, a right to grow …

Political Threads In Legal Tapestry: A Computational Analysis Of Executive Branch Legal Interpretation, 1934–2022, Reilly S. Steel

Faculty Scholarship

How does the push and pull between law and politics shape the work of executive branch lawyers charged with providing “neutral” interpretations of the law? To shed light on this longstanding question, this Article undertakes the first large-scale computational analysis of legal interpretation in the executive branch of the United States federal government. Using a new dataset comprised of the texts of 12,879 pages of opinions issued by the Office of Legal Counsel (OLC) in the Department of Justice (DOJ), I use machine learning methods to explore markers of partisanship and ideology in these high-profile executive branch decisions.

Several important …

The Imposition Of Constitutional Rights, Alvin Padilla-Babilonia

Faculty Publications

One of the central principles of constitutionalism is that citizenship stands for equal rights under the law. According to this ideal, a U.S. citizen living in Puerto Rico or Guam should have the same constitutional rights as a citizen living on the mainland. However, throughout U.S. history, constitutional rights have been neither uniform nor centralized. While constitutional rights held im- portance, they coexisted with ideals of democratic self-governance and legal pluralism. Today, Supreme Court justices and legal scholars argue that all constitutional rights should apply in the territories. This view upholds citizenship, equal rights, and the rule of law. But …

An Electoral College Compromise Constitutional Amendment: Bridging Partisan Divides To Improve Presidential Elections, John Rogan

Fordham Law Review Online

Abolishing the Electoral College in favor of using a national popular vote to elect the president and vice president is unlikely to attract sufficient bipartisan support to reach the high thresholds for amending the U.S. Constitution. However, the Electoral College has flawed features that both Democrats and Republicans might support reforming because those defects can undermine either party’s candidates. This Essay highlights three such defects. First, contingent elections—a process by which Congress selects the president and vice president if no ticket wins a majority of electoral votes—are deeply unrepresentative of the American electorate while also being subject to unpredictable dysfunction …

Codetermination’S Moment Of Truth: Overseas Workers, Jens Dammann

BYU Law Review

The idea that employees of large corporations should be entitled to representation on corporate boards, a concept known as codetermination, is gaining ground. Progressive politicians Elizabeth Warren and Bernie Sanders have proposed codetermination regimes that would allow employees to elect between 40% and 45% of board members. Moreover, an increasing number of corporate law scholars are embracing the idea of giving employees a voice in corporate governance.

However, anyone endorsing codetermination must confront a critical dilemma: whether to limit representation to U.S.-based employees or whether to extend it to overseas workers as well. The question’s practical importance is obvious given …

Artificial Intelligence, Autonomous Creation, And The Future Path Of Copyright Law, Peter K. Yu

BYU Law Review

Most literature at the intersection of copyright and artificial intelligence (AI) has focused primarily on what copyright law is or ought to be. Frequently overlooked is the question of what copyright law will be in the AI space. Understanding this question is crucial because the path of copyright law chosen by the United States will have a major impact on the country’s economic and technological future. This Article begins by scrutinizing two lines of arguments that have been advanced to deny copyright protection to AI-generated works: constitutional and incentivebased. The Article then discusses a third line of arguments— harmonization-based arguments—and …

Innocence And Habeas Corpus: A Call For Equitable Reforms, Paige Skousen Nelson

BYU Law Review

Congress intended the Anti-Terrorism and Effective Death Penalty Act of 1996 (AEDPA) to codify the Burger and Rehnquist Courts’ habeas corpus jurisprudence, which aimed to establish finality and innocence as gatekeepers to the “Great Writ.” But in practice, AEDPA hinders innocence claims, particularly claims of legal innocence.

This Note agrees that innocence should be one of the most important considerations in granting writs but argues that it is not as valued as Congress intended. This Note proposes two congressional reforms to reinstate innocence to its paramount role without compromising finality: first, amending the federal habeas petition rule to allow petitioners …