Constitutional Law Commons^™

Directv, Inc. V. Imburgia And The Continued Ascendance Of Federal Common Law: Class-Action Waivers And Mandatory Arbitration Under The Federal Arbitration Act, Michael Yelnosky

Law Faculty Scholarship

No abstract provided.

Apple Of Gold And Picture Of Silver: How Abraham Lincoln Would Analyze The Fourteenth Amendment's Equal Protection Clause, Frank J. Williams, William D. Bader, Andrew Blais

Roger Williams University Law Review

No abstract provided.

Hotline Ping: Harmonizing Contemporary Cell Phone Technology With Traditional Fourth Amendment Protections, Brianne M. Chevalier

Roger Williams University Law Review

No abstract provided.

Out Of Ferguson: Misdemeanors, Municipal Courts, Tax Distribution And Constitutional Limitations, Henry Ordower, J. Onésimo Sandoval, Kenneth Warren

All Faculty Scholarship

The matter of police and municipal courts as revenue producers became increasingly prominent following Michael Brown’s death from a police shooting. This article considers the use of misdemeanors, especially traffic violations, for the purpose of collecting substantial portions of the annual operating budgets in municipalities in St. Louis County, Missouri. The article argues that the revenue raising function of traffic offenses has displaced their public safety and traffic regulation functions. The change in function from public safety to revenue suggests that the governing laws are no longer valid as exercise of policing power but must be reenacted under the taxing …

The Expatriation Tax, Deferrals, Mark To Market, The Macomber Conundrum And Doubtful Constitutionality, Henry M. Ordower

All Faculty Scholarship

Taxpayers shift income offshore with lawful devices like operating through a foreign corporation. Taxpayers have enhanced the amount of that income lodged outside the U.S. with transfer pricing strategies. Andtaxpayers have evaded U.S. taxation of their worldwide income by secreting assets and income in tax haven, bank secrecy jurisdictions. Statutes, regulations and litigation seek to limit use of offshore opportunities toavoid the U.S. income tax. Penalties for taxpayers and their foreign hosts have been enacted to prevent thehiding of assets offshore. This article reviews many of those techniques and statutory or regulatory responses in the context of examining the 2008 …

The Bipartisan Bayh Amendment: Republican Contributions To The Twenty-Fifth Amendment, Joel K. Goldstein

All Faculty Scholarship

It is appropriate that Senator Birch Bayh has been widely recognized as the author and person most responsible for the Twenty-Fifth Amendment. His work was indispensable, and he was helped by other Democrats and nonpartisan actors including the American Bar Association and John D. Feerick, among others. Yet the Amendment was also the product of bipartisan cooperation. Important provisions were based on work done during the administration of President Dwight D. Eisenhower, and Eisenhower and his Attorney General, Herbert Brownell, played important roles in supporting Bayh’s proposal as did other Republicans in and out of Congress. Republicans like Representative Richard …

Is Having Too Many Aggravating Factors The Same As Having None At All?: A Comment On The Hidalgo Cert. Petition, Chad Flanders

All Faculty Scholarship

While the Court does not dispute that at first blush the defendant's argument appears logical, it is disturbed by the prospect of how one determines the point at which the number of aggravating circumstances causes the death penalty statute to be generally unconstitutional. Is the Court to engage in some mathematical calculation as to who might be covered by the statute and who is not; and if so, what would be reasonable and logical factors to include in the formula? Can the Court arbitrarily declare that fifty aggravating circumstances is too many but forty-nine is permissible? Even assuming one could …

Taking It To The Bank: Creating A New Constitutional Standard And Using Blue Carbon Banking To Compensate The Miccosukee Tribe For The Federal "Taking" Of Their Tribal Lands, Amy Judkins

Florida A & M University Law Review

The typical remedy for a property owner whose property interests have been diminished from government regulations—as is the case with the federal government's regulation of the Miccosukee's tribal lands—would be compensation sought under the Fifth Amendment of the United States Constitution. The last clause of the Fifth Amendment— the Takings Clause—provides that "private property [shall not] be taken for public use, without just compensation." The Supreme Court has explained that the purpose of the Takings Clause is to prevent the government from "forcing some people alone to bear public burdens which, in all fairness and justice, should be borne by …

The Right To Bear Arms... And Lesson Plans, Ryan Saboff

Florida A & M University Law Review

This Article will argue that due to the unique characteristics of mass school shootings, including their swiftness, unpredictability, and at times advanced planning and preparation, that American society can no longer simply rely on law enforcement to effectively stop or even prevent future acts of mass violence from occurring on our schools. Rather, legally licensed and armed teachers and school personnel are actually the most effective deterrent to mass school shootings. The primary focus of this Article will be schools kindergarten through twelfth grade (K-12), as they comprise of the majority of mass shootings in the United States and typically …

Gun Rights And The New Lochnerism, Areto A. Imoukuede

Journal Publications

This Article examines the Supreme Court's recent Second Amendment cases as applications of the same libertarian bias that has undermined constitutional law's fundamental rights doctrine. The concept of a libertarian bias that is based in a New Lochnerism was previously introduced in both The Fifth Freedom and The New Due Process. The analysis here demonstrates that the recently revised doctrine regarding the Second Amendment and gun rights is driven by the current Supreme Court ("Court") hostility towards government regulation in a manner that is akin to what was seen during the Lochner Era. Regrettably, this Article is timely and is …

The Texas Supreme Court Retreats From Protecting Texas Students, Albert Kauffman

The Scholar: St. Mary's Law Review on Race and Social Justice

This Article criticizes the 2016 Texas Supreme Court school finance decision, the latest of seven decisions starting in 1989, for its disregard of both the record in the case and the realities of the Texas Constitution and Texas politics. The Article also focuses on how standards for reviewing legislation have changed and the Texas Supreme Court's irrational and unfounded retreat to the "money doesn't make a difference" theory of school finance. Finally, the Article recommends a return to an objective, comprehensible, enforceable and constitutional system of review, and concludes with a prayer for holdings that recognize the inequities of the …

Siri-Ously 2.0: What Artificial Intelligence Reveals About The First Amendment, Toni M. Massaro, Helen Norton, Margot E. Kaminski

Publications

The First Amendment may protect speech by strong Artificial Intelligence (AI). In this Article, we support this provocative claim by expanding on earlier work, addressing significant concerns and challenges, and suggesting potential paths forward.

This is not a claim about the state of technology. Whether strong AI — as-yet-hypothetical machines that can actually think — will ever come to exist remains far from clear. It is instead a claim that discussing AI speech sheds light on key features of prevailing First Amendment doctrine and theory, including the surprising lack of humanness at its core.

Courts and commentators wrestling with free …

Government Speech And The War On Terror, Helen Norton

Publications

The government is unique among speakers because of its coercive power, its substantial resources, its privileged access to national security and intelligence information, and its wide variety of expressive roles as commander-in-chief, policymaker, educator, employer, property owner, and more. Precisely because of this power, variety, and ubiquity, the government's speech can both provide great value and inflict great harm to the public. In wartime, more specifically, the government can affirmatively choose to use its voice to inform, inspire, heal, and unite -- or instead to deceive, divide, bully, and silence.

In this essay, I examine the U.S. government's role as …

Copyright To The Rescue: Should Copyright Protect Privacy?, Deidre Keller

Journal Publications

While some courts have held that “[i]t is universally recognized . . . that the protection of privacy is not the function of our copyright law,” the remedies afforded copyright owners make pursuing copyright claims an attractive option to privacy plaintiffs. Copyright remedies include the removal of digital copies from the internet and the destruction of physical copies. The extent to which copyright ought to protect privacy interests has been considered in various jurisdictions recently but has not been treated comprehensively by contemporary legal scholars in the United States. This piece seeks to undertake that treatment.

Part II of this …

State V. Saldierna, Brian Boyd

NYLS Law Review

No abstract provided.

On Health, Law, And Religion, Stacey A. Tovino

Faculty Articles

The Supreme Court recently decided a number of cases involving health, law, and religion, including Whole Woman's Health v. Hellerstedt, Zubik v. Burwell, and Burwell v. Hobby Lobby Stores, Inc. These cases were important for understanding constitutional undue burden limitations and the boundaries of religious exercise during the Obama Administration. Unfortunately, the Supreme Court's recent opinions addressing health, law, and religion have little value for many health law professors and most practicing health care attorneys. These individuals, tasked with teaching and applying the thousands of federal and state statutes, regulations, and government guidance documents that address a wide …

R. V. Safarzadeh-Markhali: Elements And Implications Of The Supreme Court's New Rigorous Approach To Construction Of Statutory Purpose, Marcus Moore

All Faculty Publications

The Supreme Court of Canada’s decision in Safarzadeh-Markhali holds great significance, beyond Criminal Law, in the area of Statutory Interpretation: in Markhali, the Court decisively endorses a new rigorous approach to construing legislative purpose. Previously, while legislation itself was long-interpreted utilizing rigorous approaches, legislative purpose was typically construed ad hoc while providing only summary justification. Markhali’s new framework is distinct from prior approaches in at least four ways: (1) It expressly acknowledges the critical importance of purpose construction in many cases; (2) It is conscious of how a less-than-rigorous approach risks being self-defeating of larger legal analyses in which the …

Man Up Or Go Home: Exploring Perceptions Of Women In Leadership, Abigail Perdue

Marquette Law Review

Throughout history, women in positions of authority have often been perceived as violating well-established gender norms. Perhaps as a result, female leadership has often been viewed as a threat to male power and privilege and thus provoked resistance. Female leaders challenge longstanding sex stereotypes and patriarchal structures, subverting the identities of androcentric institutions and the people who comprise them. In so doing, they redefine notions of what it means to be a leader as well as what it means to be a woman. Cisgender male subordinates in particular may feel that their masculinity is under assault when they are placed …

Wisconsin Law In The Age Of Individualism, Joseph A. Ranney

Marquette Law Review

None

Privatizing Bars On Abortion: Eviscerating Constitutional Rights Through Tort Remedies, Maya Manian

Scholarly Articles in Law Reviews & Journals

State governments have devised a new means to evade the Constitution. Their new means is to enact tort statutes that, in effect, ban constitutionally protected conduct. In particular, some states have made the provision of an abortion a tort for which there can be no defense and no cap on the amount of liability. These states have made performing an abortion essentially illegal. Yet, because tort statutes are enforced through private litigation, rather than public prosecution, a number of courts have held that they lack jurisdiction to review these laws. Federal courts have concluded that standing doctrine and state sovereign …

The Middle Class, Urban Schools, And Choice, Michael Lewyn

Scholarly Works

It is common knowledge that middle- and upper-class parents tend to disfavor urban public schools, and often move to suburbs in order to avoid having to send their children to those schools. Thus, the condition of urban public schools contributes to suburban sprawl- that is, the movement of people and jobs from city to suburb.  This article discusses a variety of possible solutions to the unpopularity of urban schools among middle-class parents.  Part I of the Article suggests that this problem is a cause as well as a result of middle-class flight: that is, urban schools have poor reputations because …

Privacy And Conformity: Rethinking “The Right Most Valued By Civilized Men”, Susan E. Gallagher

Touro Law Review

No abstract provided.

The Wholesale Exclusion Of Religion From Public Benefits Programs: Why The First Amendment Religion Clauses Must Take A Backseat To Equal Protection, Michael J. Borger

Touro Law Review

No abstract provided.

Boys Will Be Girls, And Girls Will Be Boys: Urging The Supreme Court To Recognize A Transgender Student's Right To Use The Appropriate Facilities In A Federally Funded School, Dianna Felberbaum

Touro Law Review

No abstract provided.

Sex Offender Registration In New York: The Dangers Of State Law Preemption Of Local Residency Restriction Laws And Its Implications For Communities And Sex Offenders Alike, Megan Forbes

Touro Law Review

No abstract provided.

Stingrays, Triggerfish, And Hailstroms, Oh My: The Fourth Amendment Implications Of The Increasing Government Use Of Cell-Site Simulators, Jenna Jonassen

Touro Law Review

No abstract provided.

That's What She Said: An Evaluation Of Whether Hearsay Exceptions Should Be Permitted In Accusatory Instruments, Andrea Laterza

Touro Law Review

No abstract provided.

Proposing A One-Year Time Bar For 8 U.S.C. § 1226(C), Jenna Neumann

Michigan Law Review

Section 1226(c) of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) requires federal detention of certain deportable noncitizens when those noncitizens leave criminal custody. This section applies only to noncitizens with a criminal record (“criminal noncitizens”). Under section 1226(c), the Attorney General must detain for the entire course of his or her removal proceedings any noncitizen who has committed a qualifying offense “when the alien is released” from criminal custody. Courts construe this phrase in vastly different ways when determining whether a criminal noncitizen will be detained. The Board of Immigration Appeals (BIA) and the Fourth Circuit read “when …

Why Should Anyone Be An Originalist?, Jeffrey A. Pojanowski

Journal Articles

This essay offers a defense of originalist constitutional interpretation grounded on the moral purposes of positive law. This essay draws on the natural law tradition to argue that a reasonably just set of constitutional rules merits the interpreter’s moral obligation. This is so not because a given constitution is perfectly just, nor because the constitution “just is,” but rather because a practically reasonable person should promote the moral benefits of a posited and durable, framework of cooperation that passes the threshold of moral acceptability. And, because practical reason underdetermines what kind of constitution a polity should choose, many modern constitutions …

A Missed Opportunity To Clarify Students' First Amendment Rights In The Digital Age, Elizabeth Shaver

Akron Law Faculty Publications

In the last decade, the federal circuit courts have grappled with the issue whether, and to what extent, school officials constitutionally may discipline students for their off-campus electronic speech. Before 2015, three federal circuit courts had extended school authority to off-campus electronic speech by applying a vague test that allows school officials to reach far beyond the iconic “schoolhouse gate” referenced in the Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) Two other federal circuits had avoided the issue altogether by deciding the cases before them on other grounds. In 2015, …