Constitutional Law Commons^™

Race, The Academy, And The Constitution Of The War On Drugs, Bennett Capers, Jeffrey Bellin

Faculty Publications

The war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971. David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success. Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions.

This Review …

Researching The U.S. Senate Presidential Nominee Confirmation Process, Bert Chapman

Libraries Faculty and Staff Presentations

The beginning of 2025 has seen renewed public attention and emphasis on the constitutionally mandated U.S. Senate confirmation process. This stems from the beginning of the second Trump Administration as its nominees navigate this process. The presentation provides historical background on this process, demonstrates what nominees, Senate oversight committees, and the full Senate in administering this process and enables readers to find out how to access information resources documenting this process. The confirmation process continues throughout presidential administrations and may involve little public attention and controversy or acute public attention and controversy. The contrasting 2025 confirmation experiences of Secretary of …

Turning Over The Ballot: Direct Democracy And State-Level Change, Floersheimer Center For Constitutional Democracy, Wilfred U. Codrington Iii, Phillip Ensler, Susan Lerner, Miriam Seifter

2024–2025 Flyers

No abstract provided.

Turning Over The Ballot: Direct Democracy And State-Level Change, Floersheimer Center For Constitutional Democracy, Wilfred U. Codrington Iii, Phillip Ensler, Susan Lerner, Miriam Seifter

2025 Event Invitations

Join Phillip Ensler ‘17 (Alabama State Representative), Susan Lerner (Executive Director, Common Cause-NY), and Miriam Seifter (Professor, Univ. of Wisconsin Law School) who, with Cardozo’s own Professor Wilfred Codrington, will discuss ballot measures, direct democracy, and effecting change at the state level. Registration is encouraged but not required for current Cardozo students.

A Constitutional Mandate To Adopt Avs, Kevin Frazier

Washington and Lee Law Review Online

The rapid advancement of autonomous vehicle (“AV”) technology presents a unique opportunity to enhance public safety by drastically reducing road fatalities. Despite significant private sector investment and demonstrated improvements in AV performance, public adoption and integration remain hindered by regulatory gaps and societal skepticism. This Article argues that the federal government has an affirmative obligation, rooted in the doctrine of a right to effective government, to champion the adoption of technologies like AVs that meaningfully promote the general welfare.

Drawing on the Preamble’s mandate to advance the general welfare and lessons from the transition from the Articles of Confederation to …

On Constitutional Crises, Donald Roth

Faculty Work Comprehensive List

"Our government becomes stronger for the challenges that it overcomes, as the interplay of the branches gets better defined."

Posting about ­­­­­­­­the nature of American government from In All Things, an online hub that offers insight into maintaining and faithful and orthodox Reformed Christian worldview while fearlessly engaging in every aspect of contemporary life – until all is made new.

On Constitutional Crises

Trespass To Chattel And The Fourth Amendment, Will Baskin

Texas A&M Journal of Property Law

Like an adolescent maturing into adulthood, Fourth Amendment search doctrine has gone through phases. Scholars may debate the underlying principles that have governed each phase, but they agree that two Supreme Court decisions dominate the doctrine as it stands today: Katz v. United States and United States v. Jones. The younger of these two rivals, Jones, has caused its share of consternation. Courts have struggled to consistently apply its trespass-based test, despite the test’s seemingly simple formulation. This Note considers the Jones test in the context of personal property, or chattel, making two arguments: first, careful adherence to common-law principles …

Is Snap Removal Unconstitutional?, Ryan H. Nelson

Pepperdine Law Review

In snap removal, an individual removes a civil action to federal district court from the courts of a state where one or more putative defendants are a citizen before any such putative defendant has been served with process. By removing before any forum-state defendants are served, the removal arguably eludes the forum-defendant rule, which prohibits removal based solely on the diversity or alienage jurisdiction statute if “any of the parties in interest properly . . . served as defendants is a citizen of the State in which such action is brought.” For years, federal judges and legal academics have disputed …

An Examination Of The Standard Of Judgment For Court–Ordered Electroshock Therapy, Anna Irving

University of Miami Race & Social Justice Law Review

No abstract provided.

Civil Rights V The First Amendment, And The Erosion Of The Belief–Action Dichotomy, Elena Lacorte

University of Miami Race & Social Justice Law Review

No abstract provided.

Medicaid Unwinding: Due Process Violations And Impacts In Florida, Emma Page

University of Miami Race & Social Justice Law Review

No abstract provided.

In Defense Of The Major Questions Doctrine, Louis J. Capozzi Iii

Notre Dame Law Review

The major questions doctrine, which requires agencies claiming important powers to identify clear authority from Congress, is transforming administrative law. Breaking with recent practice, the doctrine prevents the executive branch from issuing laws addressing pressing, novel issues without Congress’s affirmative consent.

In response, scholars have generally criticized the doctrine and questioned its legitimacy. Critics have alleged that the doctrine was fabricated by the Supreme Court without proper justification, is incapable of principled application, frustrates the intent of past Congresses to delegate broad power to agencies, aggrandizes judicial power, and hinders desirable executive branch lawmaking.

This Article disagrees with those criticisms …

May Federal Courts Answer Questions When Not Deciding Cases?, Benjamin B. Johnson

Notre Dame Law Review

Conventional wisdom says that Article III’s case-or-controversy requirement prevents federal courts from answering legal questions when they are not deciding cases. This is only partially correct. This Article shows conditions under which a federal court may answer questions even when not deciding a case. To do so, it traces the appellate power back to its origins in English common law courts and through the early American judiciary. For centuries, common law judges have answered questions sent to them by lower courts when doing so would help those lower courts to decide pending cases. In England, the “case stated” procedure facilitated …

When Religious Exercise And Private Rights Collide, Brent J. Nymeyer

Notre Dame Law Review

This Note proposes that the state action doctrine—where state statutory and common law, or the judicial finding of liability thereunder, is government burdening to the same extent that a criminal law or prosecution is government burdening—should extend to always allow religious exercise claims and defenses in disputes involving only private parties. Part I lays out the development of religious exercise jurisprudence under the federal and state systems and the current landscape of jurisdictions’ treatment of religious exercise claims and defenses in private disputes.

Part II proceeds in two sections: Section A presents representative cases from criminal law and relevant areas …

A Litany For Blessed Diversity, Emma De Ramón Acevedo, Marco Enríquez, Jordi Padilla-Delgado, Ammel Sharon

Popular Media

No abstract provided.

Constitutional Freedoms In The United States, Tom Rozinski

Open Touro Created

2025

Constitutional Freedoms is an undergraduate text for courses in civil rights and liberties. It covers most of the subject areas of other undergraduate texts, although it rearranges some in ways that are more conducive to student learning. The major difference is that freedoms of speech and press are treated together as aspects of communication, rather than separately because so distinguished in the US Constitution. The book includes sections on Supreme Court procedure, methods of interpretation, and tests for unconstitutionality, as well as information about experiential learning opportunities for students.

Retrenchment By Diversion: The New Politics Of Parental Rights, Mary Ziegler, Maxine Eichner, Naomi Cahn

Michigan Law Review

For the past century, the Supreme Court has repeatedly affirmed the importance of parents’ rights to direct their children’s upbringing and education. Yet suddenly the rhetoric of parental rights is being used to ground a broad range of claims on issues such as what can be taught in public schools, when minors can access gender-affirming care, or who will be punished for helping minors travel for abortion care. Why have parental-rights claims surged so visibly in contemporary law and politics? And are all the new arguments made under the banner of parental rights equally rooted in constitutional precedent?

This Article …

Abortion Ally Or Abettor: Accomplice And Conspiracy Liability After Dobbs, Mary Fan

Articles

The bristle of state laws criminalizing abortion after Dobbs v. Jackson Women’s Health Organization raises important questions about accomplice and conspiracy liability for helping people pursue reproductive freedoms out of state. Abortion funds, grassroots organizations, pilots, and other humanitarian volunteers are vital for people in need of abortions, who often are trapped by a lack of resources in abortion criminalization jurisdictions. Threats of prosecution are chilling and even shutting down assistance by abortion funds for travel to pursue reproductive freedoms. The liability questions after Dobbs arise against a backdrop of increasing prosecutions in Europe and the United States for crimes …

The Common Law Of Constitutional Conventions, David E. Pozen

Faculty Scholarship

Professor Jill Lepore’s Jorde Symposium lecture paints a rich portrait of state constitutional conventions as engines of democratization during the 1800s and issues a dire warning about the United States’ ongoing amendment drought. Citing their unfamiliarity, however, Lepore declines to consider federal constitutional conventions as a possible corrective. In this response Essay, I argue: first, that Lepore’s marginalization of Article V’s convention mechanism is in tension with her own historical and normative account; second, that while Lepore’s wariness of conventions is entirely understandable given the state of our politics — and entirely commonplace among progressives — it carries significant risks …

The Impact Of Job Rotation On The Constitutional Rights Of Public Employee: A Comparative Study, Baha’ Aldeen A. Al Hilat, Jehad D. Aljazi

An-Najah University Journal for Research - B (Humanities)

Objectives: This study aims to analyze the job rotation policy from a constitutional and legal perspective by evaluating the texts of this policy and its adherence to constitutional guarantees for public employees. It also seeks to establish a theoretical framework for this policy as a significant topic in modern administrative organization. Methodology: The study adopted a descriptive approach to analyze the issues related to job rotation based on legislative and judicial frameworks, alongside an analytical approach to evaluate the relationship between this policy and constitutional guarantees for public employees. Additionally, a comparative method was employed to study relevant legislation in …

Home Equity Theft: A Right Without A Just Remedy, Mitchell F. Crusto

William & Mary Law Review Online

Several local governments throughout the country have confiscated homeowners’ real property for overdue real property taxes, sold those properties to investors at a discount, and pocketed millions of dollars in profits from the sales. The victims of such “home equity theft” are disproportionately elderly, African American homeowners in gentrified urban communities. One such victim, Geraldine Tyler, a vulnerable ninety-four-year-old African American woman living in a nursing home, claimed that the government’s taking of her property’s value violated the U.S. Constitution. In response, both a federal district court and a federal appellate court denied her claim, declaring that she lacked a …

Congressional Tribal Trust Responsibility And The Opioid Mdl: A Call To Finish The Work The Judiciary Was Forced To Undertake, Curtis E. Osceola Esq.

University of Miami Law Review

Congressional inaction has forced Native American Tribes to utilize the judiciary as a last resort to obtain relief from the crippling effects of the opioid epidemic. Tribes have received inadequate funding from settlements to abate the widespread use of prescription opiates on and around their lands of concern. Hundreds of mass tort lawyers have been navigating the In re National Prescription Opiate Litigation (MDL 2804)—one of the largest and most valuable litigation pools in the history of the Republic—in an effort to provide relief for cities and counties, individuals, consumers, hospitals, third-party payors, and federally recognized Tribes. Based on …

Two Piecemeal Treatments For A System Addicted To Punishment, Myles Crandall

University of Miami Law Review

For decades, the American criminal legal system has failed to curtail illicit drug use and overdose deaths through punitive and selective enforcement. The federal government has prosecuted people and succeeded in securing many long prison sentences based on drug crimes. In the past two years, two amendments by the United States Sentencing Commission offered a measured reprieve through sentence reductions. Amendment 821 offered the possibility for sentence reductions based on recalculating the guidelines associated with certain prior offenses. Amendment 814 updated policy statements for assessing “extraordinary and compelling reasons” for a sentence reduction. These changes are not revolutionary; however, the …

Prescription For Failure: Public Nuisance Claims Against The Opioid Industry, Francis A. Citera, Julia Steiner

University of Miami Law Review

Opioids have been used both medicinally and recreationally since ancient times. While their recreational functions have long since been denounced, their medicinal value remains legitimate. Yet, since the pain management revolution began in the mid-1990s, many Americans have become opioid-dependent—fueling an illicit drug market and costing many lives. The tragedy that is today’s opioid epidemic has prompted robust federal and state legislative and regulatory interventions in both the legal and illicit opioid markets—albeit with mixed success. As these initiatives have been slow to quell the opioid crisis, public nuisance claims have taken center stage. After the Big Tobacco litigation invoked …

Perttu V. Richards: Brief Of Law Professors As Amici Curiae In Support Of Respondent, Margo Schlanger

Appellate Briefs

Amici are professors of law who have studied, taught, and written about prisoner litigation and about rights to jury trials. They submit this brief to share their views, based on that experience, on the proper interpretation of the Prison Litigation Reform Act) in light of the important jury trial rights at stake and the practical realities of prisoner litigation.

Peeping Town: Drone Surveillance And The Exclusionary Rule In Long Lake Township V. Maxon, Stuart Massa

Northwestern University Law Review

For years, legal commentators have pondered the effect of the Fourth Amendment on drones, but purely as an academic exercise. No court had ever considered drone surveillance under the Fourth Amendment––until now. In Long Lake Township v. Maxon, a northern Michigan township flew a drone over a local resident’s home to gather photographic evidence of an alleged zoning violation. Relying on that evidence, the township sued to enforce its zoning ordinance. The resident moved to suppress the evidence, arguing that the drone’s warrantless surveillance violated the Fourth Amendment. The case made it all the way up to the Michigan …

The Forgotten Fundamental Right To Free Movement, Noah Smith-Drelich

Northwestern University Law Review

There is a powerful fundamental right hiding in plain sight: the fundamental right to free movement. This right goes beyond the consistently acknowledged—though infrequently applied—fundamental right to interstate travel. The true scope of the Constitution’s protection of movement through substantive due process safeguards local, interstate, and international travel. Though overlooked today, the fundamental right to free movement has deep roots in history and tradition, and in the decisions of numerous state and federal courts, including the Supreme Court.

This Article is the first to examine freedom of movement using the history and tradition test for unenumerated fundamental rights. This Article …

Taking Back Control: Using The Takings Clause To Hold Animal Agriculture Responsible For Its Waste Problem, Rowan Aragon

Northwestern University Law Review

Between the mid-twentieth century and modern day, the animal-agriculture model has shifted from small farms to industrial operations. During that evolution, the negative externalities of animal-farming practices have intensified. One of those externalities—animal waste—has become particularly problematic. Because of the sheer number of animals raised in the United States for slaughter and dairy production, the magnitude of animal waste produced is overwhelming. To deal with this problem, animal farmers often liquefy the animal waste and then spray it onto open fields. In that spraying process, liquefied animal waste carries through the air and reaches nearby homes, coating those properties with …

Brief Of Criminal Law Professors Andrea Roth And J.D. King As Amici Curiae In Support Of Petitioner, Lesh V. United States, U.S. Supreme Court Docket No. 24-654, David B. Owens

Court Briefs

QUESTION PRESENTED

Article III of the Constitution provides that “[t]he Trial of all Crimes, except in Cases of Impeachment, shall be by Jury.” And the Sixth Amendment provides that “[i]n all criminal prosecutions,” the accused shall enjoy the right to trial by jury.

The question presented is: Whether the Constitution’s dual guarantee of trial by jury contains an unstated exception for “petty” offenses.

Federal Communications Commission V. Consumers' Research: Brief Of Julian Davis Mortenson And Nicholas Bagley As Amici Curiae In Support Of Petitioners, Julian Mortenson, Nicholas Bagley

Appellate Briefs

Julian Davis Mortenson and Nicholas Bagley are professors at the University of Michigan Law School. Mortenson is a specialist on the history of executive authority and the separation of powers. Bagley is a leading scholar in administrative law. They are the co-authors of Delegation at the Founding, 121 Colum. L. Rev. 277 (2021), a leading article examining Founding- era constitutional principles regarding legislative delegations of authority, and Delegation at the Founding: A Response to the Critics, 122 Colum. L. Rev. 2323 (2022).