Constitutional Law Commons^™

Incentivized Delegation In Corporate Criminal Investigations: State Action, Unconstitutional Conditions, And Fifth Amendment Erosion., Ying Zhou

American University Business Law Review

This Article identifies and critiques “incentivized delegation,” an enforcement regime in which the Department of Justice (DOJ) conditions prosecutorial leniency on corporations’ completion of specified, prosecution-oriented, internal investigations of employee misconduct. While courts readily find state action when the government formally delegates investigative functions, they have not squarely addressed whether corporate investigations undertaken to secure prosecutorial leniency—without explicit governmental direction—should likewise trigger state-action scrutiny. United States v. Coburn illustrates the blind spot: by insisting that state action requires overt governmental direction and control, the decision exposes a fundamental failure to appreciate how the government can embed investigative mandates within the …

The Ten Commandments, Stripped Of Slavery, Exodus & Jubilee, Christopher D. Hampson

UF Law Faculty Publications

The Ten Commandments are back on public classroom walls and in federal court, after several states passed new laws requiring school districts to post the text. As attorneys, judges, and amici debate whether First Amendment law has changed enough since Stone v. Graham in 1980 to allow the posting of the ancient religious text, this Essay comes at the situation from an entirely different angle. The precise text proposed by the states might be a good example of “ceremonial deism,” but it removes biblical law from biblical narrative – and, in doing so, unsets the Ten Commandments from their original …

Daniel Ezra Subotnik (1942-2024) Obituary

Touro Law Review

No abstract provided.

Can We Talk—Really Talk—About Critical Race Theory? What A Game For All Ages Can Teach Us, Dan Subotnik

Touro Law Review

This essay may shock many readers. What it tries to do is look more closely than usual at the underpinnings of American racial discourse in the hope of leaving its readers, by its end, more willing than before to speak openly and listen carefully to people who disagree with them on the fraught subject of race. Wouldn’t many of us academics like to engage in a more open-minded sort of interracial conversation with a greater variety of our peers than we usually do? And yet it never seems to happen. Do any of us, black or white, feel we can …

Dan Subotnik Kept It Real, John Mcwhorter

Touro Law Review

No abstract provided.

Son Of Orwell, Chesterton, And Mill, Stephen B. Presser

Touro Law Review

No abstract provided.

In Memory Of Dan Subotnik—Friend And Scholar, David M. Phillips

Touro Law Review

No abstract provided.

Revisiting “Of Arms And The Militia: Gun Regulation By Legislatively Defining ‘Ordinary Military Equipment’”, Edward J. Curtis ,Jr.

Touro Law Review

In 2021, I published an article arguing that semi-automatic rifles and semi-automatic handguns, among other weapons, could be most effectively regulated by defining the “ordinary military equipment” that the states’ militia members were expected to produce in the event they were called to service. I based my argument on the rationale employed by the United States Supreme Court in its 1939 decision in United States v. Miller, which upheld the National Firearms Act of 1934.

The People, The Branches, And The Pearl Of Independence, Brian C. Murchison

Scholarly Articles

What will be the fate of the independent agencies?  Since 1887, Congress has seen fit to address an array of contemporary issues by creating expert federal agencies, such as the Interstate Commerce Commission, the Federal Trade Commission, the National Labor Relations Board, and others.  The principal officers of these agencies are appointed by the President on advice and consent of the Senate, serve limited staggered terms, are bipartisan in the sense that only a bare majority of the agency’s officers can be members of the same political party, and are “independent” in the sense that the officers are removable only …

System Disparities: Racial Criminalization And The Risk Of Coerced And False Confessions In Youth, Cynthia J. Najdowski

Psychology Faculty Scholarship

Black youth may be even more vulnerable than other youth to admitting to crimes they did not commit in the context of police interrogations. In support, analysis of data from the National Registry of Exonerations indicates that 65% of people who were wrongfully convicted on the basis of false confessions they gave when under 18 years old are Black, whereas only 14% of the U.S. population is Black. In this chapter, I seek to understand the overrepresentation of Black youth in samples of juvenile false confessors by examining the cultural stereotype about Black criminality in relation to both investigators and …

The Forgotten Income-Attribution Power, Alex Zhang

Faculty Articles

Economic inequality stands at record levels, and constitutional law haunts egalitarian reform. In 2024, the Supreme Court decided the latest contest. Moore v. United States rebuffed an attempt to sharply limit the federal taxing power, as a razor-thin majority upheld Congress’s attribution of foreign corporations’ income to domestic shareholders. But four Justices criticized the reasoning of the majority, faulting its use of a fabricated doctrine.

This Feature provides a systematic account of Congress’s income-attribution power. It excavates overlooked litigation materials and case law from the infancy of the current federal income tax. In the 1920s and 1930s, litigants attacked, on …

Popular Constitutionalism In A Populist Age, Thomas G. Donnelly

Law Faculty Publications

Popular constitutionalism burst onto the scene as a challenge to the constitutional authority of the Supreme Court. Decades later, popular constitutionalists remain susceptible to one of the earliest (and most potent) critiques of their project—the charge that they have done far too little to explain how their theory might work in practice. With the rise of modern populism, it’s also fair to ask whether popular constitutionalism is an approach that’s capable of meeting the challenges of the current constitutional moment. In this Article, I offer a new vision for popular constitutionalism—one that shows how the theory might work in practice, …

Foreword, Patricia B. Barnett

Journal of Race, Gender, and Ethnicity

No abstract provided.

Who Gets To Sue? Legal Standing After Fda V. Alliance For Hippocratic Medicine, Rachael Houston, Robert Stephen Earnest

Journal of Race, Gender, and Ethnicity

This article examines how courts are invoking FDA v. Alliance to define the limits of legal standing in litigation—specifically, in a reproductive health context. Reproductive health, as used here, encompasses a broad range of medical, legal, and policy issues related to abortion access, gender-affirming care, pregnancy, and professional regulation of services connected to reproductive decision-making. It includes the provision of and restrictions on reproductive healthcare services, the regulation of speech related to those services (e.g., advertising and advocacy), and the institutional responses to contested laws and agency rules affecting bodily autonomy, medical practice, and expressive conduct. Drawing on an original …

Prisoners And Choice Democracy, Eileen Prescott, Michelle Theer

Journal of Race, Gender, and Ethnicity

This Article considers how eliminating meaningful choices inside prisons harms individuals and obstructs reintegration efforts. While any individual restrictions on incarcerated people may seem minor—such as limitations on the food available in the commissary— they accumulate to a point where people adopt passive, compliant behaviors and attitudes that are adaptive inside yet maladaptive outside the prison walls. Thus, we argue that even modest improvements in prisoner autonomy could reduce recidivism and achieve the public safety goals of incarceration.

The Impact Anti-Abortion Laws Will Have On Domestic Violence Victims Post-Dobbs Decision, Elissa Schlissel Goldberg

Journal of Race, Gender, and Ethnicity

This paper will focus on the impact a total or near-total abortion law may have on domestic abuse and how male abusers may attempt to seek control by taking advantage of the law. This paper will first address domestic violence, specifically focusing on the different ways domestic violence can manifest and their definitions. Next, the paper will shift focus to abortion and how states have tried to limit a woman’s ability to access abortion. The paper will then move to focus on the connection between domestic violence and abortion, looking into the data from past researchers and the trends that …

Balancing The Scales Between The Evolution Of Affirmative Action Policies And The Equal Protection Clause, Jesicca Patel

Journal of Race, Gender, and Ethnicity

This article argues that the Supreme Court’s ruling ending affirmative action was correct. Affirmative action does not solve the underlying issues of racial inequality and systemic oppression. Instead, affirmative action undermines the success of minorities and inflames racial tensions. This article is divided into Five Parts. The first part examines U.S. Supreme Court precedent addressing the Court’s decisions in upholding affirmative action policies in educational settings before Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The second part discusses Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and why the Supreme Court …

Living Constitutionalism, Originalism, And The Sixteenth Amendment, Donald B. Tobin, Alex Tobin

Faculty Scholarship

No abstract provided.

Corporations’ First Amendment Rights And Algorithmic Cocoons, Sol Murgui Orsucci

Fordham Journal of Corporate & Financial Law

This Note examines how corporate First Amendment doctrine applies to algorithmic systems that curate commercial information and public discourse across online platforms. Courts have increasingly treated ranking, recommendation, and moderation practices as exercises of protected editorial judgment. At the same time, the Court has justified protection for corporate speech in part by reference to listener-centered interests in access to information and competitive comparison. This Note argues that the interaction between these doctrinal strands and contemporary algorithmic intermediation reveals a structural tension. Data-driven optimization can generate individualized informational environments—what this Note terms “algorithmic cocoons”—in which users encounter content, offers, and prices …

Interpreting Anti-Boycott Laws In The Shadow Of The First Amendment, Joseph A. Tomain

Articles by Maurer Faculty

Thirty-eight states have enacted “anti-BDS” laws. These laws require people or entities doing business with the state to certify that they do not participate in the Boycott Divestment Sanction movement against Israel. Typically, these laws define boycott as a “refusal to deal, terminating business, or other actions” that limit commercial relations with Israel or Israeli entities. It is highly contested in the courts and commentary whether these anti-boycott laws violate the First Amendment. Assuming arguendo that the “refusal to deal” and “terminating business” clauses do not implicate the First Amendment, that leaves the residual clause. At least one court and …

Premium Injustice: Addressing The Harms That Cash Bail Premiums Inflict On The Non-Convicted, Jeffery L. Young

Mitchell Hamline Law Review

No abstract provided.

Applying The Indian Commerce Clause To Indian Commerce, Adam Crepelle

Faculty Publications & Other Works

Indian country commerce generates tens of billions of dollars annually and is a constant source of litigation. These disputes typically revolve around jurisdictional conflicts: whether states, tribes, or both possess regulatory authority over the business operating in Indian country, particularly those involving non-Indians. Despite numerous court cases, no clear legal framework has emerged, creating pervasive uncertainty regarding fundamental issues, such as state taxation of tribal transactions and the proper forum for resolving Indian country contract disputes. Interestingly, these commercial cases overlook the Indian Commerce Clause—the constitutional provision designed to address such matters.

This Article argues the Indian Commerce Clause prohibits …

Lost At Sea: The Managerial Exclusion After Casinos Du Québec, Brian Langille

Dalhousie Law Journal

Is the managerial exclusion constitutionally dead or alive? In Casinos du Québec the Supreme Court of Canada somehow managed to make this a mind-boggling question. The Court also managed to bizarrely but blithely establish a higher threshold test for freedom of association violations than for unconstitutional intrusions upon other Charter freedoms. This comment addresses both of these shocking results but also seeks to go further and show how the Court’s entire freedom of association adventure is not only scary, but also unnecessary.

L’exclusion des postes de direction est-elle constitutionnellement morte ou vivante? Dans l’affaire Casinos du Québec, la Cour suprême …

Healthcare Discrimination Under The Canadian Charter Of Rights And Freedoms, Mélisande Charbonneau-Gravel, Sébastien Jodoin, Siobhan O’Connell

Dalhousie Law Journal

This paper explores the role that the Canadian Charter of Rights & Freedoms could and should play in addressing and redressing discrimination in the context of healthcare in Canada. Drawing on landmark as well as recent jurisprudence, we analyze how sections 7 and 15 of the Charter apply to three types of healthcare discrimination: (1) lack of access to healthcare and health services; (2) lower quality of services, and attitudes and biases faced in diagnosis and treatment; and (3) physical, verbal, psychological, and sexual abuse experienced by patients. Our analysis highlights the ongoing, problematic nature of the prevailing interpretations of …

Hester’S Dubious Roots And Legacy: Open Fields Doctrine Under Scrutiny, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

For over a century, open fields doctrine has shaped Fourth Amendment law, denying people the right to be secure on their own property. Its application has steadily expanded, with the result that, by some estimates, the Government can now engage in warrantless surveillance of some ninety-six percent of private land and buildings regardless of fences, postings, the distance from public roads or byways, or the use to which the property is put. An originalist approach throws the doctrine into disarray: at the time of the Founding, common law protected the curtilage, which extended to the fields, barns, storehouses, and other …

Religious Freedom, Jesuit Mission, And Dei, William M. Treanor, Amelia J. Uelmen

Georgetown Law Faculty Publications and Other Works

The ability of Jesuit educational institutions to pursue a central part of their mission – that of fostering diverse, equitable and inclusive educational environments – is under attack. This essay outlines several dimensions of their religiously-grounded mission and the reasons to strongly protect from government interference the rights of Jesuit universities to implement programs and practices that align with DEI values. First, for Jesuit universities, these programs and practices are rooted in a much deeper culture of the more than 2,000-year old Catholic intellectual tradition and the now 500-year old tradition of Jesuit spirituality. Second, drawing on the classic work …

The Nlrb’S Authority To Make Workers Whole, Wanny Mei

Fordham Law Review

In December 2022, the National Labor Relations Board (NLRB or the “Board”) announced a modified make-whole remedial framework in Thryv, Inc.For all standard make-whole relief orders, the Board would order relief for direct or foreseeable pecuniary harms that employees suffer as a result of an unfair labor practice. Proponents of this remedial design assert that this is consistent with the Board’s authority under section 10(c) of the National Labor Relations Act (NLRA). On the other hand, opponents find that this design exceeds the Board’s statutory authority and conflicts with the Seventh Amendment right to a jury trial.

This Note …

The Dead Hand And Frozen Lives: Embryonic Personhood And The Disruption Of Property Interests, Emma Miloglav

Fordham Law Review

Advances in assisted reproductive technology and the expansion of fetal personhood laws are colliding with a body of property doctrine built on assumptions about reproduction that no longer hold. In LePage v. Center for Reproductive Medicine, P.C., the Supreme Court of Alabama held that extrauterine embryos—fertilized and frozen in a laboratory—are “children” under the state’s Wrongful Death of a Minor Act. LePage represents a dramatic extension of fetal personhood.

This shift carries profound consequences for trusts and estates. If frozen embryos are treated as legal persons, they may qualify as heirs under intestacy statutes and as beneficiaries of wills, …

Reconstituting A Constitution, And A Republic: The Architecture Of Authoritarian Rule, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

A constitution can be remade without tearing it down, or even changing a single word. It is done by law.

“The judicial power is vested in one Supreme Court and in such inferior courts as Congress may establish,” whose “province and duty” it is to “say what the law is.” U.S. Const. Art. III §1; Marbury v. Madison, 5 U.S. 1 (Cranch) 137 (1803). It is not the power to remake the Constitution that grants it.

The Supreme Court is turning the inherited powers that hold power to law into instruments of its own aggrandizement. It is taking authority from …

Creation And The Republican Revival, William M. Treanor

Georgetown Law Faculty Publications and Other Works

Gordon Wood's classic book Creation of the American Republic has long influenced legal thought and originalist scholarship in particular. It played a central role in the Republican Revival movement, an effort by leading scholars such as Cass Sunstein and Frank Michelman to recover a progressive originalism at the same time as conservative originalism was starting to shape constitutional jurisprudence. But, while the Republican Revival nominally relied on Wood, it misread central elements of his book - his concept of virtue and his belief that republicanism had largely been displaced at the time of the drafting of the Constitution.

The time …