Constitutional Law Commons^™

Rethinking Riley: Applying Commensurate And Intermediate Scrutiny Standards To Judicial Evaluation Of Charitable Solicitation Regulation, James J. Fishman

Elisabeth Haub School of Law Faculty Publications

In Riley v. National Federation of the Blind, the Supreme Court struck down as unduly burdensome and unconstitutional a North Carolina statute requiring professional fundraisers to disclose to those solicited the average percentage of gross receipts actually turned over to the charity for all charitable solicitations conducted in the state within the previous twelve months. The Court applied a strict scrutiny standard of review of the regulated speech, rather than a more deferential intermediate or rational standard of scrutiny. The Court’s reasoning was that the commercial speech elements of the charity’s message were inextricably intertwined with the fully protected educational …

Reflection: How Multiracial Lives Matter 50 Years After Loving, Lauren Sudeall Lucas

Faculty Publications By Year

Black Lives Matter. All Lives Matter. These two statements are both true, but connote very different sentiments in our current political reality. To further complicate matters, in this short reflection piece, I query how multiracial lives matter in the context of this heated social and political discussion about race. As a multiracial person committed to racial justice and sympathetic both to those pushing for recognition of multiracial identity and to those who worry such recognition may undermine larger movements, these are questions I have long grappled with both professionally and personally. Of course, multiracial lives matter - but do they …

Two-Stepping Around A Minor's Constitutional Right To Abortion, Wendy-Adele Humphrey

Cardozo Law Review

A woman's constitutional right to abortion was first generally established in the U.S. Supreme Court decision in Roe v. Wade, and a female minor has the same right to abortion. In the majority of states, however, pregnant young women are required to either notify their parents or to get their parents' consent before obtaining a safe, legal abortion. These parental involvement laws do not infringe on a minor's constitutional right to abortion if a proper 'judicial bypass" proceeding is available. But in Texas, the recently amended judicial bypass law imposes additional extensive-possibly unconstitutional-restrictions on a pregnant minor who seeks a …

Globalization Of Constitutional Identity, Bui Ngoc Son

Washington International Law Journal

This Article extends Gary J. Jacobsohn’s theory of constitutional identity to better understand the dynamics of constitutional identity in the era of globalization. The extended theoretical framework features the relation of constitutional globalization to the change of national constitutional identity. Within that framework, this Article offers an original, empirical examination of the case of Vietnam and compares it with other socialist regimes (China, Laos, North Korea, and Cuba). It argues that globalization induces adaption to the socialist constitutional identity. The socialist constitutional identity is adapted by the pragmatic incorporation of fundamental ideas and principles of global constitutionalism. Consequently, the essence …

Finding Common Ground Across Race And Religion: Judicial Conceptions Of Political Community In Public Schools, Stuart Chinn

Utah Law Review

This article opens with a brief discussion of the recent controversies over race, inclusion, and community on American college campuses, focusing on the events at Yale University during the 2015 fall semester. Yale’s controversy is fascinating as one of the most recent, high-profile events that invites a discussion of a deep and persistent issue in American society: how do we construct and maintain a stable political community characterized by enduring differences? I use the Yale example as my jumping-off point for interrogating this question in the context of Supreme Court cases on race and public education, and religion/ideology and public …

The New Unconstitutionality Of Juvenile Sex Offender Registration: Suspending The Presumption Of Constitutionality For Laws That Burden Juvenile Offenders, Spencer Klein

Michigan Law Review

In Smith v. Doe, the Supreme Court held that Alaska’s sex offender registration and notification statute did not constitute punishment and was therefore not susceptible to challenge under the Ex Post Facto Clause. In reaching that conclusion, the Court looked to the seven factors articulated in Kennedy v. Mendoza-Martinez. To evaluate those factors, the Court applied a presumption of constitutionality, conducting the sort of narrow factual inquiry characteristic of rational basis review. Since Smith, courts have disagreed as to whether sex offender laws are punitive when applied to juveniles, and the Supreme Court has not yet addressed …

Excessive Lethal Force, Melissa Hamilton

Northwestern University Law Review

This Essay considers the use by Dallas police officers of a robot armed with plastic explosives to kill a suspected gunman on a shooting rampage in 2016. In the wake of Dallas, many legal experts in the news maintained that the police action was constitutional. The commentators' consensus was that as long as the police had the right to use lethal force, then the means of that force is irrelevant. This Essay argues the contrary. Under the current state of the constitutional law on the police use of force on a suspected felon, excessive lethal force is a valid consideration. …

Why Religious Freedom? Why The Religiously Committed, The Religiously Indifferent, And Those Hostile To Religion Should Care, Brett G. Scharffs

BYU Law Review

No abstract provided.

Dialogue: Clarified And Reconsidered, Rainer Knopff, Rhonda Evans, Dennis Baker, Dave Snow

Osgoode Hall Law Journal

Controversies about constitutional “dialogue” often stem from disagreement over the concept itself. The metaphor’s meaning and attendant consequences differ depending on whether it reflects the assumptions of judicial interpretive supremacy or coordinate interpretation. By combining that distinction with the contrast between weak-form and strong-form rights review, this article creates an integrated framework for clarifying dialogic variation across such jurisdictions as the United States, Canada, the United Kingdom, New Zealand, and Australia. We apply this framework most intensely to the Canadian case and bring differences between several dialogic forms—especially the difference between “clarification dialogue” and “reconsideration dialogue”—into sharper relief than is …

Disentangling The Right Of Publicity, Eric E. Johnson

Northwestern University Law Review

Despite the increasing importance attached to the right of publicity, its doctrinal scope has yet to be clearly articulated. The right of publicity supposedly allows a cause of action for the commercial exploitation of a person’s name, voice, or image. The inconvenient reality, however, is that only a tiny fraction of such instances are truly actionable. This Article tackles the mismatch between the blackletter doctrine and the shape of the case law, and it aims to elucidate, in straightforward terms, what the right of publicity actually is.

This Article explains how, in the absence of a clear enunciation of its …

Adverse Interests And Article Iii, Ann Woolhandler

Northwestern University Law Review

In an important article in the Yale Law Journal, James Pfander and Daniel Birk claim that adverseness is not required by Article III for cases arising under federal law. This Article takes the position that Pfander and Birk have not made the case for reconsidering adversity requirements for Article III cases. Adverseness may be present when there is adversity of legal interests, even when adverse argument is not present. From this perspective, a number of Pfander and Birk’s examples of non-contentious jurisdiction manifested adverseness. In rem-type proceedings such as bankruptcy and prize cases required the determination of adverse interests, …

Should The President’S Words Matter In Court?, Katherine A. Shaw

Online Publications

The most striking aspect of last Thursday’s opinion by the United States Court of Appeals for the Fourth Circuit, which rejected the Trump administration’s latest effort to revive its travel ban for individuals from six predominantly Muslim countries, was its reliance on Donald Trump’s own words as candidate, president-elect and president. The court leaned particularly heavily on his now-famous campaign statement that he was “calling for a total and complete shutdown of Muslims entering the United States.”

May 27, 2017: Getting Tired Of The Russia Thing, Bruce Ledewitz

Hallowed Secularism

Blog post, “Getting Tired of the Russia Thing“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Revolutionary Disobedience, Philip K. Y. Lau

Barry Law Review

Over the past few decades, civil disobedience has become one of the most widely studied subjects in jurisprudence. Scholars such as Rawls and Dworkin have offered their unique reflections on the subject. Whilst many have made great contributions to clarify its purposes and justifications, they have neglected one of the most important and fundamental forms of political disobedience, namely revolutionary disobedience. Unlike an act of civil disobedience, which recognizes governmental authority and legitimacy, revolutionary disobedience explicitly denies and challenges them. Manifested as a rupture between the constituent power (ruled/governed) and constituted power (ruler/governor) in a given state, it is designed …

Constitutionalism And Democracy Dataset, Version 1.0, Todd A. Eisenstadt, Carl Levan, Tofigh Maboudi

Political Science: Faculty Publications and Other Works

The main objective of the CDD is to quantify the process of constitution-making since 1974. This is the first public release of any data on the process of constitution-making. This release includes data on 144 national constitutions promulgated in 119 countries from 1974 to 2014. The unit of analysis in the data is national constitutions. The data in this release includes only “new” constitutions and does not include suspended, re-installed, amended, or interim constitutions. In this release, only countries with a population larger than 500,000 are included. The authors intend to update the data by including all countries, expanding the …

Newsroom: Horwitz On Panhandling Ordinances And The First Amendment 05-26-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

In Re D.T., 133 Nev. Adv. Op. 23 (May 25, 2017), Karson Bright

Nevada Supreme Court Summaries

The Nevada Supreme Court held that the juvenile court properly certified a juvenile as an adult because the seriousness of his offense and his prior adjudications outweighed the subjective factors in Seven Minors. Additionally, the Court held that a court’s certification of cognitively impaired juveniles for adult proceedings does not offend the Eighth Amendment.

Workin’ 9:00–5:00 For Nine Months: Assessing Pregnancy Discrimination Laws In Georgia, Kaitlyn Pettet

Georgia State University Law Review

As demonstrated in this Note, there is still a considerable way to go before women are no longer forced to choose between pregnancy and keeping their career. Allegations of pregnancy discrimination in the workplace are also on the rise.

In 1997, 4,000 plaintiffs filed complaints with the Equal Employment Opportunity Commission (EEOC). By 2011, that number rose to 5,800. The EEOC won significant damages in pregnancy discrimination cases, demonstrating a greater tendency towards discrimination in the workplace. Additionally, this rise in claims and awards caught the attention of the nation’s media, placing new emphasis on the treatment of pregnant women …

An Empirical Assessment Of Georgia’S Beyond A Reasonable Doubt Standard To Determine Intellectual Disability In Capital Cases, Lauren Sudeall Lucas

Georgia State University Law Review

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty. More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability. Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants …

Injustice Under Law: Perpetuating And Criminalizing Poverty Through The Courts, Judge Lisa Foster

Georgia State University Law Review

Money matters in the justice system. If you can afford to purchase your freedom pretrial, if you can afford to immediately pay fines and fees for minor traffic offenses and municipal code violations, if you can afford to hire an attorney, your experience of the justice system both procedurally and substantively will be qualitatively different than the experience of someone who is poor. More disturbingly, through a variety of policies and practices—some of them blatantly unconstitutional—our courts are perpetuating and criminalizing poverty. And when we talk about poverty in the United States, we are still talking about race, ethnicity, and …

A Promise Unfulfilled: Challenges To Georgia’S Death Penalty Statute Post-Furman, William Cody Newsome

Georgia State University Law Review

In Furman v. Georgia, the U.S. Supreme Court agreed with Furman’s counsel. Three Justices agreed that Georgia law, as applied, was arbitrary and potentially discriminatory. Moreover, one Justice challenged the value of the death penalty and doubted it served any of the alleged purposes for which it was employed.

Although many challenges subsequent to Furman have been raised and arguably resolved by the Court, the underlying challenges raised by Furman appear to remain prevalent with the Court. Justice Breyer recently echoed the concurring opinions of Furman in his dissenting opinion from Glossip v. Gross, when he stated: “In …

Rwu First Amendment Blog: Andrew Horwitz's Blog: First Amendment Protects The Right To Give And To Receive 05-23-2017, Andrew Horwitz

Law School Blogs

No abstract provided.

May 22, 2017: Putnam Versus Scalia, Bruce Ledewitz

Hallowed Secularism

Blog post, “Putnam versus Scalia“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Trump Presidency And The Press, John M. Greabe

Law Faculty Scholarship

[Excerpt] "It is not difficult to understand why presidents frequently voice frustration with the press. Imagine being subjected to critical analysis 24/7 by reporters, bloggers and pundits who often lack complete and accurate information but face competitive pressure to publish quickly."

Hate Speech, Harry Tepker

Other Faculty Publications

No abstract provided.

May 16, 2017: When All The Churches Are Gone, Bruce Ledewitz

Hallowed Secularism

Blog post, “When All the Churches are Gone“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Government Speech Doctrine In Walker’S Wake: Early Rifts And Reverberations On Free Speech, Viewpoint Discrimination, And Offensive Expression, Clay Calvert

William & Mary Bill of Rights Journal

This Article examines the immediate effects on free expression of the U.S. Supreme Court’s 2015 ruling in Walker v. Texas Division, Sons of Confederate Veterans, Inc. involving the government speech doctrine. In Walker, a sharply—and largely partisanly—divided Court upheld, in the face of a First Amendment challenge, Texas’s decision denying a private organization’s application for a specialty license plate featuring Confederate battle flag imagery. This Article initially reviews the government speech doctrine and Walker. It then analyzes Walker’s impact on cases that, like it, involve specialty license plate programs. Next, this Article explores lower court efforts stretching …

Hiding In Plain View: A Path Around Sovereign Immunity For State Government Employees, William J. Rich

William & Mary Bill of Rights Journal

No abstract provided.

“Time Enough” For Scrutiny: The Second Amendment, Mental Health, And The Case For Intermediate Scrutiny, Benjamin A. Ellis

William & Mary Bill of Rights Journal

No abstract provided.

Combating Thieves Of Valor: The Stolen Valor Act Of 2013 Is Constitutional Yet Unenforced, Mary E. Johnston

William & Mary Bill of Rights Journal

No abstract provided.