Constitutional Law Commons^™

Internet Surveillance, Regulation, And Chilling Effects Online: A Comparative Case Study, Jonathon Penney

Articles, Book Chapters, & Popular Press

With internet regulation and censorship on the rise, states increasingly engaging in online surveillance, and state cyber-policing capabilities rapidly evolving globally, concerns about regulatory “chilling effects” online — the idea that laws, regulations, or state surveillance can deter people from exercising their freedoms or engaging in legal activities on the internet have taken on greater urgency and public importance. But just as notions of “chilling effects” are not new, neither is skepticism about their legal, theoretical, and empirical basis; in fact, the concept remains largely un-interrogated with significant gaps in understanding, particularly with respect to chilling effects online. This work …

Internet Surveillance, Regulation, And Chilling Effects Online: A Comparative Case Study, Jonathon Penney

Articles, Book Chapters, & Popular Press

With internet regulation and censorship on the rise, states increasingly engaging in online surveillance, and state cyber-policing capabilities rapidly evolving globally, concerns about regulatory “chilling effects” online — the idea that laws, regulations, or state surveillance can deter people from exercising their freedoms or engaging in legal activities on the internet have taken on greater urgency and public importance. But just as notions of “chilling effects” are not new, neither is skepticism about their legal, theoretical, and empirical basis; in fact, the concept remains largely un-interrogated with significant gaps in understanding, particularly with respect to chilling effects online. This work …

A Test For Freedom Of Conscience Under The Canadian Charter Of Rights And Freedoms: Regulating And Litigating Conscientious Refusals In Health Care, Jocelyn Downie, Francoise Baylis

Articles, Book Chapters, & Popular Press

Conscientious refusal to provide insured health care services is a significant point of controversy in Canada, especially in reproductive medicine and end-of-life care. Some provincial and territorial legislatures have developed legislation or regulations, and some professional regulatory bodies have developed policies or guidelines, to better reconcile tensions between health care professionals’ conscience and patients’ access to health care services. As other groups attempt to draft standards and as challenges to existing standards head to court, the fact that the meaning of “freedom of conscience” under the Canadian Charter of Rights and Freedoms is not yet settled will become ever more …

The Supreme Court Of Canada And Federalism: Does / Should Anyone Care Anymore?, A. Wayne Mackay

Articles, Book Chapters, & Popular Press

Federalism is still a relevant and vital aspect of Canadian Constitutional Law. Although a lower profile aspect than the Charter of Rights and Aboriginal rights (and in common parlance less "sexy"), the division of powers continues to an important part of the work of the Supreme Court of Canada and part of what defines us as a nation. The author argues that the Supreme Court has pursued an increasingly contextualized approach to division of powers issues - one that abandons the arid legalism of earlier days, in favour of a broad social analysis of issues based on extensive use of …

The Case For A New Compassionate Release Statutory Provision, Adelina Iftene

Articles, Book Chapters, & Popular Press

In the last decade there has been a steady growth in the number of federally incarcerated people aging in prisons. These individuals have a long list of medical needs while they present low risk to communities. However, this category of people tends to spend more time in prison than their younger counterparts and face difficulties in being released. Using original empirical data, as well as the existing literature, I argue that a high number of these individuals need to be released through a compassionate release mechanism. This article has two purposes. One is to show that compassionate release does not …

Federalism And Health Care In Canada: A Troubled Romance?, Colleen M. M. Flood, William Lahey Prof., Bryan P. Thomas

Articles, Book Chapters, & Popular Press

Canadian federalism fragments health system governance. Although the Constitution has been interpreted as providing shared jurisdiction over health generally, with respect to health care, the courts have interpreted it as giving direct jurisdiction to the provinces. The federal role in health care is therefore indirect, but nevertheless potentially powerful. For example, the federal government has used its spending powers to establish the Canada Health Act (CHA), which commits funding to provinces on condition they provide first-dollar public coverage of hospital and physician services. However, in recent times, as federal contributions have declined, the CHA has been weakly enforced. …

Doe V. University Of Michigan: Free Speech On Campus 25 Years Later, Leonard M. Niehoff

Articles

I would like to use as the launching pad for my remarks today the 1989 federal district court decision in Doe v. University of Michigan. Doe is the seminal case on campus speech codes and it just recently passed its twenty-fifth anniversary. I thought this symposium would be a good occasion to look back, see where we were, assess where we are, and ask whether we have made any progress. Spoiler alert: the news is not good.

Sovereignty And Social Change In The Wake Of India's Recent Sodomy Cases, Deepa Das Acevedo

Faculty Articles

American constitutional law scholars have long questioned whether courts can truly drive social reform, and this uncertainty remains even in the wake of recent landmark decisions affecting the LGBT community. In contrast, court watchers in India—spurred by developments in a special type of legal action developed in the late 1970s known as public interest litigation (PIL)—have only recently begun to question the judiciary’s ability to promote progressive social change. Indian scholarship on this point has veered between despair that PIL cases no longer reliably produce good outcomes for India’s most disadvantaged and optimism that public interest litigation can be returned …

Undignified: The Supreme Court, Racial Justice, And Dignity Claims, Darren L. Hutchinson

Faculty Articles

The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies intended to oppress racial minorities and those designed to ameliorate past and current racism. Antisubordination theory would also closely scrutinize facially neutral state action that systemically disadvantages vulnerable social groups. The Court has largely ignored these reform proposals. Modern Supreme Court rulings, however, have invoked the …

Treaty Exit In The United States: Insights From The United Kingdom Or South Africa?, Curtis A. Bradley, Laurence R. Helfer

Faculty Scholarship

This essay, a contribution to an AJIL Unbound symposium on “Treaty Exit at the Interface of Domestic and International Law,” compares treaty exit in the United States, the United Kingdom, and South Africa. After examining the longstanding practice of unilateral presidential withdrawals from treaties in the United States and the refusal to date of U.S. courts to review the constitutionality of that practice, the essay summarizes recent judicial decisions in the United Kingdom and South Africa holding that parliamentary approval was required before these nations could withdraw from treaties committing them, respectively, to the European Union and the International Criminal …

The Contract Clause: A Constitutional History By James W. Ely (Review), Jay D. Wexler

Shorter Faculty Works

If the Constitution were a zoo, what resident animal would the Contract Clause be? The clause, which is found in Article I, section 10 of our founding document, reads: “No state shall . . . pass any . . . Law impairing the Obligation of Contracts.” It certainly would not be one of the zoo’s star attractions; the Contract Clause is no First Amendment lion or Fourth Amendment tiger. But it is no bat-eared fox (the Letters of Marque Clause?) or Eurasian water shrew (the Third Amendment?) either. Based on reading Ely’s comprehensive history of the Contract Clause, perhaps it …

From Parliamentary To Judicial Supremacy: Reflections In Honour Of The Constitutionalism Of Justice Moseneke, Peter G. Danchin

Faculty Scholarship

No abstract provided.

Congress Blewett By Not Explicitly Making The Fair Sentencing Act Of 2010 Retroactive, Andrew Cockroft

Journal of Criminal Law and Criminology

In 2013, the Sixth Circuit Court of Appeals was the first Circuit Court to retroactively apply the Fair Sentencing Act of 2010. The Fair Sentencing Act sought to end the discriminatory effects of the Anti-Drug Abuse Act of 1986 and its treatment of one gram of crack cocaine as the equivalent to one hundred grams of powder cocaine. The Fair Sentencing Act was meant to remedy the injustices brought about by the infamous 100:1 ratio in crack-cocaine and powder cocaine minimum sentencing. Despite this purpose, the Fair Sentencing Act does not contain language that explicitly and unequivocally requires that the …

Special Education In Adult Correctional Facilities: A Right Not A Privilege, Melissa Edelson

Loyola of Los Angeles Law Review

A general diffusion of knowledge and intelligence being essential to the preservation of the rights and liberties of the people, the Legislature shall encourage by all suitable means the promotion of intellectual, scientific, moral, and agricultural improvement. – California Constitution art. IX §1.

Ensuring The Constitution Remains Color Blind Vs. Turning A Blind Eye To Justice: Equal Protection And Affirmative Action In University Admissions, Attashin Safari

Loyola of Los Angeles Law Review

No abstract provided.

In Defense Of California's Mandatory Child Vaccination Law: California Courts Should Not Depart From Established Precedent, Stephanie Awanyai

Loyola of Los Angeles Law Review

In the wake of the 2015 measles outbreak in California, California Senate Bill 277 (S.B. 277) was enacted. S.B. 277 repeals the personal belief exemption to California’s immunization requirement for children in public and private educational or child care facilities in the State. While S.B. 277 was enacted to prevent the spread of contagious diseases through mandatory vaccinations of school-aged children, there are objections to this approach. Parents who oppose S.B. 277 contend that S.B. 277 violates their federal and state constitutional rights to make medical decisions on behalf of their child, and infringes on their child’s fundamental state interest …

Race, Redistricting, And The Manufactured Conundrum, Justin Levitt

Loyola of Los Angeles Law Review

Race and redistricting each lie at the core of recurring contests over American political identity. It is therefore perhaps no surprise that cases concerning the role of race in redistricting have offered the Supreme Court a steady diet. In 2017, for the fourth time in four decades, the Court struck North Carolina districts based on the legislature’s misuse of race. And the North Carolina legislature, proclaiming the whole business too complicated, simply threw up its hands.

This petulance is likely performance. The law of race and redistricting is resistant to shortcuts and stereotypes, but that does not render it intractable, …

Campus Speech And Harassment, Alexander Tsesis

Faculty Publications & Other Works

No abstract provided.

A Diachronic Approach To Bob Jones: Religious Tax Exemptions After Obergefell, Samuel D. Brunson, David Herzig

Faculty Publications & Other Works

In Bob Jones University v. United States, the Supreme Court held that an entity may lose its tax exemption if it violates a fundamental public policy, even where religious beliefs demand that violation. In that case, the Court held that racial discrimination violated fundamental public policy. Could the determination to exclude same-sex individuals from marriage or attending a college also be considered a violation of fundamental public policy? There is uncertainty in the answer. In the recent Obergefell v. Hodges case that legalized same-sex marriage, the Court asserted that LGBT individuals are entitled to “equal dignity in the eyes of …

From Selma To Ferguson: The Voting Rights Act As A Blueprint For Police Reform, Stephen Rushin

Faculty Publications & Other Works

The Voting Rights Act of 1965 revolutionized access to the voting booth. Rather than responding to claims of voter suppression through litigation against individual states or localities, the Voting Rights Act introduced a coverage formula that preemptively regulated a large number of localities across the country. In doing so, the Voting Rights Act replaced reactive, piecemeal litigation with a proactive structure of continual federal oversight. As the most successful civil rights law in the nation's history, the Voting Rights Act provides a blueprint for responding to one of the most pressing civil rights problems the country faces today: police misconduct. …

Constitutional Law: If These Walls Could Talk: Giving Undue Deference To Religious Actors By Expanding The Ecclesiastical Abstention Doctrine—Pfeil V. St. Matthews Evangelical Lutheran Church Of Unaltered Augsburg Confession, Jeremy D.F. Krahn

Mitchell Hamline Law Review

No abstract provided.

Proponents' Standing To Defend Their Ballot Initiatives: Post-Hollingsworth Work-Arounds?, Nat Stern, John S. Caragozian

Scholarly Publications

No abstract provided.

Aging Injunctions And The Legacy Of Institutional Reform Litigation, Jason Parkin

Elisabeth Haub School of Law Faculty Publications

Institutional reform litigation has been an enduring feature of the American legal system since the Supreme Court’s ruling in Brown v. Board of Education. The resulting injunctions have transformed countless bureaucracies notorious for resisting change, including public school systems, housing authorities, social services agencies, correctional facilities, and police departments. But these injunctions face an uncertain future. The Supreme Court has held that institutional reform injunctions must be easier to terminate than all other injunctions issued by the federal courts. Some institutional reform injunctions go unenforced or are forgotten entirely. Others expire due to sunset provisions. At the same time, doctrinal …

Justiciability, Access To Justice And The Development Of Constitutional Law In Canada, Lorne Sossin, Gerard J. Kennedy

Articles & Book Chapters

Concentrating on Canadian experience, specifically litigation under the Canadian Charter of Rights and Freedoms (the ‘Charter’), this article seeks to reconcile the access to justice benefits of summary procedures with the government litigant’s duty to act in the public interest (or as a ‘model litigant’) and uphold the rule of law. Though acknowledging the benefits that can result from the use of summary procedures to end litigation, the authors observe that compliance with strict requirements in procedural law are frequently dispensed with in the Charter context. In fact, summary procedures can have a devastating effect on the development of Charter …

Identity Criris: Claim Prevlusion In Constitutional Challenges To Statutes, Riley T. Keenan

Law Faculty Publications

Claim preclusion bars parties from relitigating in a later action claims that were or should have been litigated in a prior action. How does this doctrine apply in constitutional challenges to state and federal statutes? When a plaintiff challenges one provision of a statute in one action, can she challenge a different provision of the same statute in a later action? And when, if ever, can she bring two successive challenges to the same provision?

Though the Supreme Court addressed these questions two terms ago in Whole Women’s Health v. Hellerstedt, its answers were incomplete. This Article searches for …

The 2016 Amendments To Criminal Rule 41: National Search Warrants To Seize Cyberspace, “Particularly” Speaking, Devin M. Adams

Law Student Publications

George Orwell's dystopia, with the ever-watchful Big Brother, has seemingly become a reality with the recently passed amendments to Rule 41 of the Federal Rules of Criminal Procedure. Rule 41, governing searches and seizures, now permits magistrate judges to authorize agents- under a single warrant- to "remotely access," and simultaneously search, copy and seize information from an infinite number of unknown electronic devices in multiple districts anywhere in the country. The unlimited jurisdiction provision is triggered when a device's location is obscured through "technological means," or if agents are investigating computer crimes in five or more districts- regardless of whether …

A License To Infringe: The Tenth Circuit's Reliance On The Reasonable Observer Test To Determine Symbolic Speech Protection Of License Plates, Hayley Stillwell

Faculty Articles

No abstract provided.

Salvaging The Term "Suitor": How The Declaratory Judgment Act Has Commandeered Congressional Intent, Brett P. Hargaden

Roger Williams University Law Review

No abstract provided.

2016 Survey Of Rhode Island Law: Cases And Public Laws Of Note

Roger Williams University Law Review

No abstract provided.

The Bds Movement: That Which We Call A Foreign Boycott, By Any Other Name, Is Still Illegal, Marc A. Greendorfer

Roger Williams University Law Review

No abstract provided.