Constitutional Law Commons^™

The Mic Drop: The Urgent Call For Scotus To Settle The Discord On Right Of Publicity Preemption And The Split That Never Was, Roselyn P. Castillo

University of Miami Business Law Review

The Roberts Court and . . . 50 Cent? Surely, no one predicted this duo, but sooner rather than later, it may be reflected in casebooks across the nation. In 2020, the Second Circuit joined what has been referred to as a growing circuit split over the tension between state law right of publicity claims and federal copyright preemption. Aligning with the Eighth and Ninth Circuits, the Second Circuit held that a state law right of publicity claim was preempted. Conversely, the Third, Fifth, and Seventh Circuits have held that copyright law does not preempt state law right of publicity …

Analyzing The Role Of Socio-Political And Cultural Factors In The Implementation Of Transitional Justice In Afghanistan From 2001-2021, Narwan Alawi, Tufail Ahmad Peerzada

Indonesian Journal of International Law

After the end of conflicts, countries generally try to prosecute the criminals who committed war crimes and violations of human rights during conflicts and civil wars to prevent the recurrence of such incidents. In some cases, special courts have been established to trial the perpetrators of these crimes. In post-2001 Afghanistan, as foreign forces led by the USA removed the Taliban from power and with the establishment of the Republic of Afghanistan, a new phase of transitional justice was anticipated. Although the Afghans initially hoped that justice would not be ignored, however, preference was given to establish peace, and the …

Courting Oblivion Part Ii: How To Revive American Reconstruction By Feigning Forgetfulness, Joshua J. Schroeder

Cleveland State Law Review

This is the second part of the three-part Courting Oblivion series on the legal concept of oblivion, meaning legal forgetfulness, letting go of the past, or forgiveness usually to predicate a second chance, a restart, or even an era of reconstruction. This Article demonstrates how to apply the “right to move on” described in Part I to the law in the United States through acts of oblivion and amnesty. It describes the general uses of acts of oblivion and amnesty to the general framework of government in the United States, leading to the final discussion in Part III about the …

Whither Leviathan? The Seepage Of Constitutional Law Into Public-Private Arbitration In The United States, Peter B. Rutledge

Scholarly Works

The chapter analyses how constitutional law influences private-public arbitration in the United States. Its central thesis is that constitutional law exerts a powerful indirect influence on arbitration law. While the US Constitution does not directly regulate arbitration, its underlying norms—such as separation of powers, federalism, and individual rights—impact arbitration law indirectly. The chapter explores the ways in which these constitutional principles influence public-private arbitration through statutory interpretation, treaty design, and private protocols reflecting constitutional norms. This pattern of influence manifests itself in public arbitration (i.e. arbitration involving states or state-owned entities) just as it does in private arbitration. Highlighting how …

Creating Peaceful Coexistence Through Virtue: A Theological Approach To Institutional Religious Freedom, Equality, And The First Amendment, Alex Deagon

Journal of Catholic Legal Studies

(Excerpt)

In the current era of fraught tension between religious freedom and equality, scholars from across the spectrum of perspectives have called for generosity, empathy, and compromise from both sides. Drawing from chapters in my book A Principled Framework for the Autonomy of Religious Communities: Reconciling Freedom and Discrimination, in this Article I propose to give substantive content and criteria to such exhortations by adopting a theological perspective which aims to create peaceful coexistence through cultivating and applying Christian virtues such as love, grace, forgiveness, humility, and patience. Together, these virtues recognise the inherent worth of all humans as …

Filarsky’S Dilemma: Qualified Immunity For Private Actors And Its Potentially Negative Impact On Policing, Timothy Joseph Mondloch

University of Miami Race & Social Justice Law Review

No abstract provided.

Sentencing Roulette: The Absurdity And Unconstitutionality Of The Crime Of Violence Enhancements, Noam Kozlov

University of Miami Race & Social Justice Law Review

The law needs to be clear. This dictum is true especially with respect to criminal law. Defendants need to be made aware of the statutory and judicial rules surrounding their trial, and sentencing outcome should be foreseeable, even if not predictable. But we have failed. We have failed in granting defendants this sought-after clarity, exposing them to grossly disproportional and disparate sentences. One such failure is found in the Crime of Violence enhancement rules. COV enhancements add years or even decades to sentences of defendants whose previous convictions are classified as 'violent'. Despite this detrimental impact of the COV rules, …

Hoodwinked By Rucho: The Illusion Of Protection For Racial Gerrymandering In Federal Courts, Krystell Fienco

University of Miami Race & Social Justice Law Review

"lt is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule." - Marbury v. Madison, 5 U.S. 137 (1803).

"[W]e must never forget, that it is a constitution we are expounding." - McCulloch v. Maryland, 17 U.S. 316 (1819).

A New Equal Protection And Due Process Clause: Pushing Back On The Eleventh Circuit’S Error In Corbitt, Alberto Bufalino

University of Miami Race & Social Justice Law Review

No abstract provided.

Brief Of Amici Curiae Fred T. Korematsu Center For Law And Equality, Service Employees International Union, American Federation Of Teachers, American Association Of University Professors, Center For Civil Rights And Critical Justice, Race And Law Centers, And Civil Rights And Advocacy Organizations In Support Of Plaintiff, Susan Godfrey Llp V. Executive Office Of The President, U.S. District Court For The District Of Columbia (Docket No. 1:25-Cv-01107-Lla), Charlotte Garden, Jeremiah Chin, Jessica Levin, Melissa Lee, Jim Davy, Robert S. Chang, Susan Mcmahon

Court Briefs

No abstract provided.

The Right To Gender-Affirming Care, Justin J. Soulas

Theses and Dissertations

As of recent, twenty-four states have enacted bans on gender-affirming care, restricting minors from accessing medically necessary treatment. Existing scholarship has begun to explore the profound impact of these bans on transgender youth, their parents or guardians, and the medical professionals who support them. However, the body of literature on this rapidly evolving issue remains limited. This thesis aims to fill that gap by offering a legal defense of gender-affirming care, grounded in judicial precedent. It argues that parental rights to make medical decisions for their children—recognized in constitutional jurisprudence—extend to decisions involving gender-affirming treatment. Additionally, it draws on anti-discrimination …

Brief Of Amici Curiae 775 Law Professors In Support Of Plaintiff's Motion For Summary Judgment And Declaratory And Permanent Injunctive Relief, Wilfred U. Codrington Iii, Haiyun Damon-Feng, Rebecca Ingber, Rachel Landy, Jacob Noti-Victor, Alexander A. Reinert, Anthony J. Sebok

Amicus Briefs

Amicus curiae brief submitted by 775 law professors in support of Susman Godfrey LLP's motion for summary judgment and request for declaratory and permanent injunctive relief in Susman Godfrey LLP v. Executive Office of the President. The brief argues that Executive Order 14263 unlawfully targets a law firm based on its clients, advocacy, and litigation activities, in violation of the First Amendment, Fifth Amendment, and Sixth Amendment. The amici contend that the order constitutes impermissible viewpoint discrimination, interferes with the right to counsel, and threatens the independence of the legal profession and the rule of law.

Pick Your Precedent: Bostock, Dobbs, And The Uncertain Reach Of Intermediate Scrutiny In United States V. Skrmetti, Molly Pines

Duke Journal of Constitutional Law & Public Policy Sidebar

The Supreme Court will yet again wade into highly politically charged waters this term when it decides United States v. Skrmetti, a case about gender-affirming healthcare for minors. More specifically, Skrmetti will decide whether SB1, a 2023 Tennessee law that bans gender-affirming care for individuals below age 18, violates the Fourteenth Amendment's Equal Protection Clause. The Tennessee Plaintiffs and the Biden administration, which intervened on their behalf, have argued that SB1 unconstitutionally discriminates on the basis of sex and transgender status. In response, Tennessee has argued that SB1 only uses age and medical purpose—not sex or transgender status—to delineate …

Trump V. Casa, Inc.: Brief Of Scholars Of Constitutional Law And Immigration As Amici Curiae In Support Of Respondents, Samuel Erman

Appellate Briefs

Amici are law professors whose research focuses on constitutional law and immigration. Amici have an interest in ensuring that the Fourteenth Amendment is interpreted in a manner consistent with its text and history, and accordingly have an interest in this case.

Attitudes On Solitary Confinement, Emily Dewey

Undergraduate Theses

Solitary confinement is widespread and recognized as harmful in society. However, it is not as researched as other controversial issues, including immigration, gun control, abortion, etc. Due to this, it is hard to gauge how supportive the public is or isn't of related practices. In a general sense, public support has been established by legislators crafting policy, and by extension United States Supreme Court decision making. This is particularly crucial in discussions on interpretations of the 8th Amendment/ cruel and unusual punishment. Existing case law, such as Peoples V. Fischer, found that solitary confinement was arbitrary and needed reform, including …

Conversation In My Parlor About Climate Change And The Call To Thoughtful Service By Lawyers With Disabilities, Gary Norman Esq. Llm

Journal of Law and Health

Pope John Paul II penned, "So much of our world seems to be in fragments, in disjointed pieces." Experts admonish that an irreparable threshold of 1.5°C for global temperatures is not a theoretical remonstrance but an imminent imperative. Is this true? This article will explore if climate change exists. I will thoughtfully respond to this question in the affirmative, exploring center-based solutions. Specifically, this article will urge that these great United States require a new generation of leaders who can embody the energy of a Brother President Theodore Roosevelt, who possesses the eloquence of President John Kennedy, and who, like …

Amgen Enablement And Its Undue Burden On An Overburdened Biomedical Industry, Carter Chippi

Journal of Law and Health

This paper examines the Supreme Court decision in Amgen Inc. v. Sanofi and its profound impact on the patentability of biotechnology inventions, particularly biologic drugs. By virtually eliminating the possibility of claiming genera patents, the decision exacerbates existing challenges within the biologic sector, including high development costs and rigorous regulatory hurdles. The analysis sets forth the enablement requirement’s precedent, emphasizing historical case law and the unforeseen implications of setting a stringent standard for biotechnology patents. This paper further critiques suggested industry compromises, deeming them insufficient to address the ramifications of Amgen, and proposes legislative intervention. Options include granting biologics …

Splitting Equality: Access To Gender-Affirming Care In The Fourth Circuit, Gilbert D. Jones

Journal of Law and Health

This Note critically examines the evolving legal landscape surrounding transgender individuals' access to gender-affirming care in the United States, focusing on two pivotal cases before the Fourth Circuit: Kadel v. Folwell (North Carolina) and Fain v. Crouch (West Virginia). These cases present a constitutional and statutory challenge to the exclusion of medically necessary gender-affirming care from state health plans, under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. The Note contextualizes these lawsuits within a broader historical trajectory of transgender rights, highlighting legal and cultural milestones that have shaped access …

Crashing The Party: How Textualism And Legislative History Can Work Together, John Cannan

Faculty Publications

Textualists must moderate their distaste for legislative history and acknowledge the role of congressional sources in statutory interpretation—even those they themselves approve of. Doing so would enhance their statutory analyses. Decisions arising from 2016 litigation by hospitals against the U.S. Department of Health and Human Services, culminating in Azar v. Allina Health Servs., 139 S. Ct. 1804, 204 L. Ed. 2d 139 (2019), demonstrate how textualist inflexibility can undermine their own principles. For example, notable advocates of that interpretive school—then-Judge Brett Kavanaugh and Justice Neil Gorsuch—overlooked statutory text, which they so highly prize, in reaching their determinations. Textualists often describe …

The Fall From Standing: How The Courts Have Diverged From Financial Standing Standards, Shouatshen Adoree Yang

Brooklyn Law Review

The Fair Credit Reporting Act (FCRA) and the Fair Debt Collection Practices Act (FDCPA) enable consumers to sue credit reporting and debt collection agencies for engaging in abusive practices such as reporting false information or continuous harassment. In order for a lawsuit to be heard, consumers must have constitutional standing, and thus, must have suffered a particularized and concrete injury. However, it may be difficult for consumers to allege a concrete injury given that credit and debt issues often result in harm that is intangible and difficult to categorize. While the Supreme Court has classified financial, intangible injuries as concrete …

Aerial Highways: The Fifth Amendment Implications Of Commercial Drone Delivery Services, Marc C. Mcallister, Karen A. Sauls

Brooklyn Law Review

Commercial drone delivery systems that deliver packages of purchased products directly to the homes of consumers are being developed and tested by many companies in America, including Walmart and Amazon. Soon enough, our skies will be filled with low-flying drones. This Article joins the growing cohort of legal scholars discussing drones, but focuses on an issue not addressed to this point - how commercial drone delivery systems can undermine and diminish the property rights of private landowners. In the past, most legal scholars have addressed the interplay between drones and private property by examining potential tort liability for drone operators …

Black Women Are Supreme: An Empirical Examination Of Black Women's Evaluations Of Ketanji Brown Jackson, Christine M. Slaughter, Camille Burge-Hicks, Nadia E. Brown

ConLawNOW

This article discusses research on the nomination of the first Black woman Supreme Court Justice, Ketanji Brown Jackson. The study examines how emotions and feelings of connectedness to racial and gender groups shaped evaluations of the historic nomination. The research finds that Black women were overwhelmingly enthusiastic about Jackson’s nomination, but that enthusiasm was attenuated by a wide range of variables like interest in politics and the interplay between racial and gender identity. It analyzes how linked fate, a sense of connection to one’s racial group, is associated with the evaluations of the Jackson nomination. The study finds that Black …

Let's Get Personal: Due Process And Personal Jurisdiction As A New Path Forward For Extraterritoriality, Samy Abdelsalam

Northwestern University Law Review

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has put fundamental principles of federalism and state sovereignty under attack. Legislation and lawsuits in states nationwide aim to limit the rights of American citizens to travel freely between states in search of medical care. Further, these measures have extraterritorial reach, legally entangling the rights of private citizens in other states who provide medical care even while fully within their own state borders. Scholars have analyzed this development through various doctrinal lenses, including the Dormant Commerce Clause. But these frameworks fail to adequately protect those who are unfortunate enough …

Climate Exceptionalism In Court, Zachary D. Clopton, David A. Dana

Northwestern University Law Review

Across a range of cases, fossil fuel companies, government actors, and some judges have conceded that climate change is an exceptional phenomenon, only to argue that its exceptional nature is a reason to keep climate change out of court. These parties and judges thus seek to avoid the adjudication of climate cases on the merits, even when the neutral application of existing law would provide for jurisdiction in these cases. We term this phenomenon “climate jurisdiction exceptionalism.”

This Article provides a comprehensive account of climate jurisdiction exceptionalism, focusing on two main threads: Article III standing and state court jurisdiction. First, …

Preclusive Jurisdictional Dismissals, Kevin Song

Northwestern University Law Review

Every litigant deserves their day in court. At the same time, litigants cannot endlessly go to court on the same matter. A complex body of preclusion law balances these fundamental tenets by examining when adjudication of a matter precludes subsequent relitigation. This body of law has evolved over time to preserve the day-in-court ideal in a way that is sensitive to the threats that relitigation present to judicial efficiency, fair adjudication, and repose. Modern preclusion law has settled on a pragmatic approach: where a court has issued a final judgment on the merits but erroneously assumed jurisdiction, relitigation may still …

Book Review: Jill Elaine Hasday, We The Men: How Forgetting Women's Struggles For Equality Perpetuates Inequality, Taylor King

ConLawNOW

This essay reviews Jill Elaine Hasday’s book, We the Men. It explains how Hasday traces key historical cases and stories of women’s demand for equality that have been forgotten. These important histories include the Nineteenth Amendment, Title VII equal employment, and the Equal Rights Amendment, among others. The book makes the claim that erasing women’s history is problematic for protecting gender equality in the future.

A Conversation With Judge Shira Scheindlin, Burt Neuborne & Jeffrey Toobin, Benjamin N. Cardozo School Of Law, Judge Shira Scheindlin, Burt Neuborne, Jeffrey Toobin

2025 Event Invitations

Join us for a discussion on judicial independence and impartiality with Judge Shira Scheindlin, NYU Law Professor Burt Neuborne, and author Jeffrey Toobin. In Floyd v. City of New York (2013), Judge Scheindlin ruled that the NYPD’s stop-and-frisk program was unconstitutional, ordering reforms and oversight. Days later, the Second Circuit reassigned the case, citing concerns about the appearance of impartiality due to her public statements. Professor Neuborne, who objected to her removal in a brief to the court, and Toobin, who covered the case for The New Yorker, will join Judge Scheindlin to examine the implications of this decision and …

Project 2025 And Due Process After Dobbs, Tracy Turner

ConLawNOW

Project 2025 supporters have been appointed to prominent federal offices in the second Trump Administration. This includes, most notably, the Office of Management and Budget, for a key strategy of implementing the Project’s goals is manipulation of federal funding. This Essay explores what this might mean for women’s rights and suggests a legal theory with which to challenge Project initiatives. Project 2025 repackages a platform that is fully anti-feminist. It is not a new platform. It is the same set of tools that has been used against feminism since the movement’s inception. It expansively seeks policy changes for abortion, contraception, …

Is There A Gender Gap In Campaign Spending Strategies?, Paul S. Herrnson, Charles Hunt, Jaclyn Kettler

ConLawNOW

Women politicians have traditionally faced greater challenges when running for office than their male counterparts. These include less encouragement from political gatekeepers, fundraising obstacles, and voter skepticism about their abilities—particularly among men. Nevertheless, women have made substantial advances in the electoral arena, including increasing their numbers in Congress. Some of these gains can be attributed to changing voter attitudes, the mobilization of female campaign contributors, and recent female politicians learning from the successes of their predecessors. Studies have documented the similarities and differences in how men and women candidates for the U.S. House of Representatives raise money, staff campaign organizations, …

Brief Of Amici Curiae Scholars For The Advancement Of Children's Constitutional Rights And Students Engaged In Advancing Texas In Support Of Respondents, Mahmoud V. Taylor, U.S. Supreme Court (No. 24-297), Tanya Washington, Jeremiah Chin, Sarah Medina Camiscoli, Travis F. Chance, Amalia Y. Sax-Bolder, Catherine E. Smith

Court Briefs

Amici are members of Students Engaged in Advancing Texas and United States legal scholars of children and the law, education law, family law, and anti-discrimination law.

Students Engaged in Advancing Texas is a nonprofit organization founded by young people to develop civic leadership and belonging and represents students of various faiths and identities who have an interest in the outcome of this case.

Amici draw this Court’s attention to the constitutional harms that public school students and LGBTQ+ students and students with LGBTQ+ parents would bear should the Court grant Petitioners’ injunctive relief.