Constitutional Law Commons^™

Attitudes On Solitary Confinement, Emily Dewey

Undergraduate Theses

Solitary confinement is widespread and recognized as harmful in society. However, it is not as researched as other controversial issues, including immigration, gun control, abortion, etc. Due to this, it is hard to gauge how supportive the public is or isn't of related practices. In a general sense, public support has been established by legislators crafting policy, and by extension United States Supreme Court decision making. This is particularly crucial in discussions on interpretations of the 8th Amendment/ cruel and unusual punishment. Existing case law, such as Peoples V. Fischer, found that solitary confinement was arbitrary and needed reform, including …

Conversation In My Parlor About Climate Change And The Call To Thoughtful Service By Lawyers With Disabilities, Gary Norman Esq. Llm

Journal of Law and Health

Pope John Paul II penned, "So much of our world seems to be in fragments, in disjointed pieces." Experts admonish that an irreparable threshold of 1.5°C for global temperatures is not a theoretical remonstrance but an imminent imperative. Is this true? This article will explore if climate change exists. I will thoughtfully respond to this question in the affirmative, exploring center-based solutions. Specifically, this article will urge that these great United States require a new generation of leaders who can embody the energy of a Brother President Theodore Roosevelt, who possesses the eloquence of President John Kennedy, and who, like …

Amgen Enablement And Its Undue Burden On An Overburdened Biomedical Industry, Carter Chippi

Journal of Law and Health

This paper examines the Supreme Court decision in Amgen Inc. v. Sanofi and its profound impact on the patentability of biotechnology inventions, particularly biologic drugs. By virtually eliminating the possibility of claiming genera patents, the decision exacerbates existing challenges within the biologic sector, including high development costs and rigorous regulatory hurdles. The analysis sets forth the enablement requirement’s precedent, emphasizing historical case law and the unforeseen implications of setting a stringent standard for biotechnology patents. This paper further critiques suggested industry compromises, deeming them insufficient to address the ramifications of Amgen, and proposes legislative intervention. Options include granting biologics …

Splitting Equality: Access To Gender-Affirming Care In The Fourth Circuit, Gilbert D. Jones

Journal of Law and Health

This Note critically examines the evolving legal landscape surrounding transgender individuals' access to gender-affirming care in the United States, focusing on two pivotal cases before the Fourth Circuit: Kadel v. Folwell (North Carolina) and Fain v. Crouch (West Virginia). These cases present a constitutional and statutory challenge to the exclusion of medically necessary gender-affirming care from state health plans, under Title VII of the Civil Rights Act of 1964 and the Equal Protection Clause of the Fourteenth Amendment. The Note contextualizes these lawsuits within a broader historical trajectory of transgender rights, highlighting legal and cultural milestones that have shaped access …

Crashing The Party: How Textualism And Legislative History Can Work Together, John Cannan

Faculty Publications

Textualists must moderate their distaste for legislative history and acknowledge the role of congressional sources in statutory interpretation—even those they themselves approve of. Doing so would enhance their statutory analyses. Decisions arising from 2016 litigation by hospitals against the U.S. Department of Health and Human Services, culminating in Azar v. Allina Health Servs., 139 S. Ct. 1804, 204 L. Ed. 2d 139 (2019), demonstrate how textualist inflexibility can undermine their own principles. For example, notable advocates of that interpretive school—then-Judge Brett Kavanaugh and Justice Neil Gorsuch—overlooked statutory text, which they so highly prize, in reaching their determinations. Textualists often describe …

The Fall From Standing: How The Courts Have Diverged From Financial Standing Standards, Shouatshen Adoree Yang

Brooklyn Law Review

The Fair Credit Reporting Act (FCRA) and the Fair Debt Collection Practices Act (FDCPA) enable consumers to sue credit reporting and debt collection agencies for engaging in abusive practices such as reporting false information or continuous harassment. In order for a lawsuit to be heard, consumers must have constitutional standing, and thus, must have suffered a particularized and concrete injury. However, it may be difficult for consumers to allege a concrete injury given that credit and debt issues often result in harm that is intangible and difficult to categorize. While the Supreme Court has classified financial, intangible injuries as concrete …

Aerial Highways: The Fifth Amendment Implications Of Commercial Drone Delivery Services, Marc C. Mcallister, Karen A. Sauls

Brooklyn Law Review

Commercial drone delivery systems that deliver packages of purchased products directly to the homes of consumers are being developed and tested by many companies in America, including Walmart and Amazon. Soon enough, our skies will be filled with low-flying drones. This Article joins the growing cohort of legal scholars discussing drones, but focuses on an issue not addressed to this point - how commercial drone delivery systems can undermine and diminish the property rights of private landowners. In the past, most legal scholars have addressed the interplay between drones and private property by examining potential tort liability for drone operators …

Black Women Are Supreme: An Empirical Examination Of Black Women's Evaluations Of Ketanji Brown Jackson, Christine M. Slaughter, Camille Burge-Hicks, Nadia E. Brown

ConLawNOW

This article discusses research on the nomination of the first Black woman Supreme Court Justice, Ketanji Brown Jackson. The study examines how emotions and feelings of connectedness to racial and gender groups shaped evaluations of the historic nomination. The research finds that Black women were overwhelmingly enthusiastic about Jackson’s nomination, but that enthusiasm was attenuated by a wide range of variables like interest in politics and the interplay between racial and gender identity. It analyzes how linked fate, a sense of connection to one’s racial group, is associated with the evaluations of the Jackson nomination. The study finds that Black …

Let's Get Personal: Due Process And Personal Jurisdiction As A New Path Forward For Extraterritoriality, Samy Abdelsalam

Northwestern University Law Review

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has put fundamental principles of federalism and state sovereignty under attack. Legislation and lawsuits in states nationwide aim to limit the rights of American citizens to travel freely between states in search of medical care. Further, these measures have extraterritorial reach, legally entangling the rights of private citizens in other states who provide medical care even while fully within their own state borders. Scholars have analyzed this development through various doctrinal lenses, including the Dormant Commerce Clause. But these frameworks fail to adequately protect those who are unfortunate enough …

Climate Exceptionalism In Court, Zachary D. Clopton, David A. Dana

Northwestern University Law Review

Across a range of cases, fossil fuel companies, government actors, and some judges have conceded that climate change is an exceptional phenomenon, only to argue that its exceptional nature is a reason to keep climate change out of court. These parties and judges thus seek to avoid the adjudication of climate cases on the merits, even when the neutral application of existing law would provide for jurisdiction in these cases. We term this phenomenon “climate jurisdiction exceptionalism.”

This Article provides a comprehensive account of climate jurisdiction exceptionalism, focusing on two main threads: Article III standing and state court jurisdiction. First, …

Preclusive Jurisdictional Dismissals, Kevin Song

Northwestern University Law Review

Every litigant deserves their day in court. At the same time, litigants cannot endlessly go to court on the same matter. A complex body of preclusion law balances these fundamental tenets by examining when adjudication of a matter precludes subsequent relitigation. This body of law has evolved over time to preserve the day-in-court ideal in a way that is sensitive to the threats that relitigation present to judicial efficiency, fair adjudication, and repose. Modern preclusion law has settled on a pragmatic approach: where a court has issued a final judgment on the merits but erroneously assumed jurisdiction, relitigation may still …

Book Review: Jill Elaine Hasday, We The Men: How Forgetting Women's Struggles For Equality Perpetuates Inequality, Taylor King

ConLawNOW

This essay reviews Jill Elaine Hasday’s book, We the Men. It explains how Hasday traces key historical cases and stories of women’s demand for equality that have been forgotten. These important histories include the Nineteenth Amendment, Title VII equal employment, and the Equal Rights Amendment, among others. The book makes the claim that erasing women’s history is problematic for protecting gender equality in the future.

A Conversation With Judge Shira Scheindlin, Burt Neuborne & Jeffrey Toobin, Benjamin N. Cardozo School Of Law, Judge Shira Scheindlin, Burt Neuborne, Jeffrey Toobin

2025 Event Invitations

Join us for a discussion on judicial independence and impartiality with Judge Shira Scheindlin, NYU Law Professor Burt Neuborne, and author Jeffrey Toobin. In Floyd v. City of New York (2013), Judge Scheindlin ruled that the NYPD’s stop-and-frisk program was unconstitutional, ordering reforms and oversight. Days later, the Second Circuit reassigned the case, citing concerns about the appearance of impartiality due to her public statements. Professor Neuborne, who objected to her removal in a brief to the court, and Toobin, who covered the case for The New Yorker, will join Judge Scheindlin to examine the implications of this decision and …

Project 2025 And Due Process After Dobbs, Tracy Turner

ConLawNOW

Project 2025 supporters have been appointed to prominent federal offices in the second Trump Administration. This includes, most notably, the Office of Management and Budget, for a key strategy of implementing the Project’s goals is manipulation of federal funding. This Essay explores what this might mean for women’s rights and suggests a legal theory with which to challenge Project initiatives. Project 2025 repackages a platform that is fully anti-feminist. It is not a new platform. It is the same set of tools that has been used against feminism since the movement’s inception. It expansively seeks policy changes for abortion, contraception, …

Is There A Gender Gap In Campaign Spending Strategies?, Paul S. Herrnson, Charles Hunt, Jaclyn Kettler

ConLawNOW

Women politicians have traditionally faced greater challenges when running for office than their male counterparts. These include less encouragement from political gatekeepers, fundraising obstacles, and voter skepticism about their abilities—particularly among men. Nevertheless, women have made substantial advances in the electoral arena, including increasing their numbers in Congress. Some of these gains can be attributed to changing voter attitudes, the mobilization of female campaign contributors, and recent female politicians learning from the successes of their predecessors. Studies have documented the similarities and differences in how men and women candidates for the U.S. House of Representatives raise money, staff campaign organizations, …

Brief Of Amici Curiae Scholars For The Advancement Of Children's Constitutional Rights And Students Engaged In Advancing Texas In Support Of Respondents, Mahmoud V. Taylor, U.S. Supreme Court (No. 24-297), Tanya Washington, Jeremiah Chin, Sarah Medina Camiscoli, Travis F. Chance, Amalia Y. Sax-Bolder, Catherine E. Smith

Court Briefs

Amici are members of Students Engaged in Advancing Texas and United States legal scholars of children and the law, education law, family law, and anti-discrimination law.

Students Engaged in Advancing Texas is a nonprofit organization founded by young people to develop civic leadership and belonging and represents students of various faiths and identities who have an interest in the outcome of this case.

Amici draw this Court’s attention to the constitutional harms that public school students and LGBTQ+ students and students with LGBTQ+ parents would bear should the Court grant Petitioners’ injunctive relief.

Corrected Brief Of Amici Curiae Fred T. Korematsu Center For Law And Equality, Service Employees International Union, American Federation Of Teachers, American Association Of University Professors, Center For Civil Rights And Critical Justice, Center For Law, Equity And Race, Center For Racial And Economic Justice, Center On Law, Race & Policy, Center On Race, Inequality, And The Law, Gibson-Banks Center For Race And The Law, The Lawyering Project, Autistic Self Advocacy Network, Bazelon Center For Mental Health Law, And Disability Law United In Support Of Plaintiff, Perkins Coie, Llp V. U.S. Department Of Justice, United States District Court For The District Of Columbia (Case No. 1:25-Cv-00716-Bah), Charlotte Garden, Jeremiah Chin, Jessica Levin, Melissa Lee, Jim Davy, Robert S. Chang, Susan Mcmahon

Court Briefs

No abstract provided.

The Corporate Transparency Act Or An Expanded Customer Due Diligence Rule, Tyler Scattolini

Texas A&M Law Review

In 2021, Congress passed the Corporate Transparency Act (“CTA”) to combat money laundering, terrorist financing, and other illicit activities by requiring certain business entities to report personal information about the individuals who own or control the business and those who helped create or register the business. The reported information will be held in a federal database controlled by the U.S. Department of the Treasury’s Financial Crimes Enforcement Network and can be disclosed upon request by domestic and foreign governmental agencies and financial institutions.

While the motivation behind the CTA is warranted due to the recent uncovering of illegal shell companies …

The Myth Of The Fourteenth Amendment And The Civil Rights Act Of 1866, Earl M. Maltz

ConLawNOW

Although legal scholars who focus on the original meaning of the Fourteenth Amendment disagree about many things, almost all agree that John Bingham proposed what was to become Section One of the amendment in order to definitively establish the constitutionality of the Civil Rights Act of 1866. In fact, however, the Joint Committee on Reconstruction chose to insert the Bingham formulation in place of a provision that would have explicitly constitutionalized the Civil Rights Act. This Essay describes the circumstances that provided the backdrop for the consideration of the Bingham proposal and the implications that this context has for our …

Michigan V. Tucker: A Reevaluation Of Miranda, Maine Law Review

Maine Law Review

In Michigan v. Tucker the Supreme Court considered whether to exclude the fruits of an interrogation that did not meet the precautionary standards of Miranda v. Arizona. The defendant contended that use of the evidence at his trial violated his fifth amendment privilege against self-incrimination. In deciding that the evidence had been properly admitted, the Tucker Court interpreted Miranda v. Arizona as outlining recommended procedural safeguards for the protection of fifth amendment rights and reasoned that omission of procedural safeguards does not necessarily constitute a violation of the underlying rights. Specifically, the Court concluded that a suspect who did not …

In Re M & G: A Misapplication Of Stanley V. Illinois, Maine Law Review

Maine Law Review

A Vermont probate court terminated the rights of M, an unwed mother, in her illegitimate child, although G, the putative father, did not receive official notice of the termination hearing and did not appear. The child was placed with prospective adoptive parents shortly after the hearing. In an effort to assert his parental rights, G joined in the mother's post-hearing petition for habeas corpus. Relying on Stanley v. Illinois, G argued that he was entitled to notification of the termination hearing and an opportunity to be heard on his fitness as a parent. In In re M&G, the Vermont Supreme …

Special Benefits And Just Compensation: Ensuring Fair Treatment Of Landowners In Partial Taking Cases, Maine Law Review

Maine Law Review

The sovereign power to take private property for public use is counterbalanced by the duty to provide just compensation. The just compensation requirement is intended to protect the individual landowner when the government exercises its right of eminent domain. Consistent with the equitable principle of fairness upon which this requirement is founded, the government must provide the individual with public funds for property transferred from his private use to the public domain. The just compensation requirement thereby distributes the costs of public projects equally among all members of society and ensures that no individual whose property is sacrificed for the …

Appointment Of Counsel In Misdemeanor Prosecutions In Maine, Maine Law Review

Maine Law Review

When a criminal defendant appears without a lawyer before a trial court, the trial judge must decide whether to appoint counsel to represent him. The trial judge's decision is one of constitutional magnitude under both the United States and Maine Constitutions, and the decision made in any particular instance affects the integrity of the trial process and the validity of any conviction. The scope of the constitutional right to appointed counsel has lately been the subject of major decisions of the United States Supreme Court and of the Maine Supreme Judicial Court. The United States Supreme Court in Argersinger v. …

Media Access And The First Amendment's Romantic Tradition, Merle W. Loper

Maine Law Review

Jerome Barron must be regarded as the legal profession's leading advocate of a legally enforceable public right of access to use the communication media-both printed and electronic. This book, above all, is an advocacy of that right and a survey of the need for public access. Professor Barron further discusses certain problems that an access right might raise-such as the allocation of access time and the regulation of offensiveness in broadcasting-and explores various aspects of these problems. As advocacy, the book is much more persuasive of the need for access to the contemporary media than it is of the prospects …

Gay Students Organization V. Bonner: Expressive Conduct And First Amendment Protection, Maine Law Review

Maine Law Review

After the Gay Students Organization, an officially recognized student group at the University of New Hampshire, held a dance on campus on November 9, 1973, the Governor of New Hampshire complained to the university's Board of Trustees about the impropriety of allowing such a "spectacle." The next day the Trustees banned all further G.S.O. social functions until the matter could be legally resolved. In Gay Students Organization v. Bonner, the G.S.O. brought an action for a declaratory judgment on the constitutionality of the university's ban. The court held the ban to be an unconstitutional restriction of the group's freedom of …

Modalities, Anti-Modalities, And The Social Psychology Of Persuasive Constitutional Argument, Asma T. Uddin

Catholic University Law Review

Constitutional argumentation traditionally relies on modalities such as text, history, doctrine, and structure. However, the exclusion of certain “anti-modalities”—such as policy arguments, fundamentalist views, and emotional appeals—can create a “resonance gap” between legal reasoning and public understanding. This paper explores how social science insights, particularly from cultural cognition theory (CCT) and moral foundations theory (MFT), can help bridge this gap by guiding the strategic incorporation of pathos and moral intuitions into constitutional arguments. Techniques such as self-affirmation, expressive overdetermination, and aporetic reasoning can make opinions more persuasive and inclusive without compromising legal integrity. The paper examines how these strategies can …

Re-Evaluating Fulton V. City Of Philadelphia: A “Narrow” “Wisp” Of A Decision Or Free Exercise “Bedrock?”, Mark Rienzi

Catholic University Law Review

In Fulton v. City of Philadelphia (2021), a unanimous Supreme Court held that Philadelphia violated the Free Exercise Clause by excluding Catholic Social Services from participating in its foster program because CSS would not certify same-sex couples. Both supporters and critics of the Court’s decision publicly characterized the decision as “narrow” and noted that Philadelphia (and other governments) can easily sidestep Fulton and continue excluding religious providers from foster and adoption programs.

Four years later, the evidence shows that Fulton is anything but narrow. In Philadelphia and in other jurisdictions, Fulton has played a strong role in ending litigation against …

Prenatal Personhood, State Duties, And Congress’S Abortion Power Under The Fourteenth Amendment, David R. Upham

Catholic University Law Review

Many antiabortion jurists have contended that by its original meaning, the Fourteenth Amendment not only (1) recognizes the personhood of prenatal human beings, but also (2) requires states to have and enforce the antiabortion laws necessary to the equal protection of these prenatal persons, and even (3) empowers Congress to pass remedial antiabortion laws where the state fail to protect such persons.

In this essay, I will contend that the Amendment does indeed recognize the personhood of prenatal human beings, but largely leaves with the states the authority to determine the scope of the protection to be afforded such persons. …

The Final Frontier Of Federal Power: Understanding, Defining, And Enforcing “Necessary And Proper” To Enhance The General Welfare And Limit Federal Power, Thomas Ralph

Catholic University Law Review

This comment explores the long and inconsistent history of the Necessary and Proper Clause and its unique role as both a grant of power to Congress and a limit on the outer reach of the federal government. The federal government is in theory one of limited powers; however, this promise of the Constitution cannot be truly recognized without developing a robust framework for applying the Necessary and Proper Clause as a reliable source of federal power. After establishing the need for a framework, this comment provides five judicial decision rules that can be applied by trial and appellate courts to …