Constitutional Law Commons^™

Can The Law Of Democracy Save Democracy?, Helen L. Norton

Publications

No abstract provided.

Suspicion, Deference, And The First Amendment, Helen Norton

Publications

No abstract provided.

Dangerousness And The Undocumented, Pratheepan Gulasekaram

Publications

The Supreme Court's most recent Second Amendment opinion, United States v. Rahimi, centers the question of dangerousness in right to bear arms challenges. There, the Court upheld 18 U.S.C. § 922(g)(8), the federal criminal prohibition on possession of firearms by those subject to a civil domestic violence order, opining that legislatures could regulate the right to bear arms of those who were proven credible threats to public safety. Rahimi, however, left open the question whether dangerousness might be imputed to an entire group, absent individual determinations of threat or danger. The several lower federal court cases adjudicating 18 U.S.C. § …

What Did Gitlow Do?, James Y. Stern

Faculty Publications

Gitlow is generally regarded as the first modern incorporation case, the genesis of both federal free speech curbs on state action and the larger project of making the same limitations that the federal Constitution imposes on the federal government applicable to the states. In both respects, moreover, it can also be seen as an important milestone in the larger twentieth century transformation of federal court practice and constitutional understanding centered on the assertion of individual rights. That linkage is no accident. For all the talk about federalism and state sovereignty in the U.S. Reports, the modern jurisprudence of constitutional rights …

History's Identity Crisis, Allison Orr Larsen

Faculty Publications

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This Article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning— weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about—conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of …

Book Review: We're All Traditionalists Now (Most Of The Time), Richard H. Fallon, Jr., The Changing Constitution: Constitutional Law In The Trump-Era Supreme Court, Michael Gentithes

Akron Law Faculty Publications

This review highlights the scope and importance of Richard Fallon’s book, The Changing Constitution: Constitutional Law in the Trump-Era Supreme Court. Fallon, a giant of constitutional work, provides a comprehensive, accessible, and vitally important catalogue of the Court’s methodological changes in his posthumously published book. The book argues that while textualism and originalism “have achieved unparalleled prominence,” the Court is also “not consistently originalist” and often relies on a version of traditionalism, similar to but importantly distinct from originalism, that marks an important and undertheorized change. And in yet other areas, the Court eschews either originalism or traditionalism for …

Book Review: Robert J. Jarvis, The Neglected Amendments Of The U.S. Constitution: Text, History, And Interpretation, Jonathan E. Moore

Akron Law Faculty Publications

This essay offers an engaging review of the casebook, The Neglected Amendments of the U.S. Constitution, by Professor Robert Jarvis. While most lawyers, and many nonlawyers, could readily identify many of the “big twelve” constitutional amendments, few are familiar with the other fifteen. This book focuses on the neglected fifteen, arguing they deserve sustained attention as historically and politically important today. Topics include several amendments potentially going in play, such as the Twenty-second limiting the president to two terms, Twenty-fifth on presidential succession and disability, Twenty-seventh on congressional pay raises, and the Ninth on rights retained by the people. …

In Search Of A State, Maeve Glass

Faculty Scholarship

This article offers a legal history of one of America’s earliest campaigns of state legislative resistance: the effort in Massachusetts to protest the national government’s perceived dismantling of an old Atlantic commercial order from 1803 to 1815. To date, scholars have either condemned this protest as a dangerous harbinger of the Civil War or vindicated it as an inevitable and salutary extension of the Founding. This article steers a different course. By focusing on the evolving language of protest and the complex hybrid of ideas and material realities from which this language emerged, this article illuminates how Federalist leaders who …

Judge–Scholar Collaboration And The Second Amendment, Andrew Willinger, Eric Ruben

Faculty Scholarship

Legal scholarship is overly abstract and theoretical, making it unhelpful to judges and lawyers. That, at least, is the classic critique from the bench. When it comes to the Second Amendment, however, a different pattern has emerged: judges consistently cite law review articles and look to the academy for guidance. Most recently, in United States v. Rahimi, some Justices went further, implicitly inviting more scholarly work to help the Court answer open questions raised by its novel methodological approach to the Second Amendment. This Article explores this aberrant trend.

We raise several explanations for the distinctive scholarly role in …

States In The Separation Of Powers, Ernest A. Young

Faculty Scholarship

No abstract provided.

What Belongs In A Constitutional Law Casebook?, Ernest A. Young

Faculty Scholarship

No abstract provided.

The Reality Of The Good Faith Exception, Michael Gentithes, Matthew Tokson

Akron Law Faculty Publications

This Article has reexamined the law and theory of the good faith exception. It fnds that the exception, originally confned to narrow circumstances, is turning into a protection for nearly any investigatory activity with an arguable connection to an existing precedent or statute. Our study is the frst to empirically demonstrate the exception’s substantial infuence on modern Fourth Amendment law. Courts rely on the exception with remarkable frequency, and a large proportion of courts invoking the exception avoid any substantive constitutional ruling, stunting the development of Fourth Amendment doctrine. Further, our close theoretical examination of the good faith exception reveals …

Rules And Laws For Civil Actions 2026, Stella Burch Elias, Derek T. Muller, Jason Rantanen, Caroline Sheerin, Maya Steinitz

Books

Rules and Laws for Civil Actions is an open-access resource for law students containing the U.S. Constitution, Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and selected federal and state statutes. The book was created by a team of faculty members at the University of Iowa College of Law to supplement the study of Civil Procedure, Evidence, Constitutional Law, and other law school courses. In addition to containing the official text, each legal source found in Rules and Laws for Civil Actions is accompanied by an introductory section written by an Iowa Law professor …

The Military's Constitutional Role, Brenner M. Fissell

Faculty Publications

A basic principle of the American constitutional order is that civilian authority must be supreme over that of the military. The violation of this principle by the British was one of the grievances enumerated in the Declaration of Independence, and the Framers responded with a Constitution that made military rule impossible. But why is so-called “civilian control” of the military so important? This deep normative question has yet to be thoroughly answered by scholars, most of who assume it away as a given. This Article takes up that task, using contemporary political theory to defend the principle of civilian control. …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Discriminatory Censorship Laws, Jonathan Feingold, Joshua Weishart

Faculty Scholarship

The summer of 2020 ignited global protests for racial justice. Across the United States, millions marched with a modest plea: that America reckon with its racism. For K-12 schools, this moment pushed local communities and district leaders to create more inclusive classrooms and curricula. Yet before the summer had ended, America's antiracist turn provoked a backlash campaign that has proven far more impactful and enduring.

This campaign has featured the rise and spread of "discriminatory censorship laws"-a term we apply to government action designed to demean inclusionary values and to deny students access to critical knowledge, inquiry, and thinking. As …

The Major Questions Doctrine, Post-Chevron?: Skidmore, Loper-Bright, And A Good-Faith Emergency Question Doctrine, Jed Handelsman Shugerman

Faculty Scholarship

When my students and colleagues fretted about Chevron's fate, I have said, "Worry less. Skid-more." Just as old Skidmore "weight" or "respect" returns post-Chevron, the new (and newer) major questions doctrine(s) survive as a reason to give less weight to an agency interpretation. This symposium essay suggests a special role for the post-Chevron major questions doctrine: an Emergency Questions Doctrine. When the executive asserts an emergency power, when the statutory basis is open-ended (often for very good reasons), majorness means less deference to simple and fast textualism, and more time for courts to engage in deeper purposivism to …

Amicus In Wilcox V. Trump On Presidential Removal And Unitary Executive Theorists’ Errors, Jed Handelsman Shugerman

Faculty Scholarship

As courts ask whether Free Enterprise and Seila Law call into question Humphrey’s Executor and independent officers or agencies, the more immediate questions should be focused on new historical evidence and new fact-checking finding pervasive and repeated historical errors and misinterpretations at the foundation of the unitary executive theory of removal.

Since the Supreme Court decided Seila Law, a wave of new historical research has shown that the Founding generation did not understand Article II to grant the President an indefeasible removal power over executive officials. In response, pro-unitary executive scholars have tried to offer new historical support. That …

The Endorsement Test's Early Years, 1983-1985: Notes From The O'Connor Files, Jay D. Wexler

Faculty Scholarship

One of Justice Sandra Day O’Connor’s signature contributions to U.S. constitutional law was the endorsement test, a subtle but critically important reformulation of the Court’s then prevailing approach to applying the Establishment Clause that focused on the message sent by government action supporting religion and the potentially harmful effects of that message on religious minorities and the political community. Now that the current Court has discarded the endorsement test, leaving the government freer than ever to support religion in a variety of ways, we should expect to see the harms that Justice O’Connor cared about become increasingly widespread and prevalent. …

Originalisms' Indifferences?: Friendly Amendments To Sherif Girgis's "Originalism's Difference?", Jed Handelsman Shugerman

Faculty Scholarship

Sherif Girgis’s Lecture Originalism’s Differences? reflects on what had differentiated originalism from other methods and why those differences are eroding. The differences are (or were): (1) avoiding “ostentatious moral reasoning”; (2) relatedly, constraining judges by requiring originalist historical evidence (i.e., tying judges’ hands); and (3) engaging historical research with more “intensity.” Girgis rightly criticizes the Court for engaging in the same kind of flexibility and creativity that originalists had long rejected.

In this commentary, I highlight our areas of agreement and offer friendly amendments. My title takes Girgis’s title two or three steps further: I use an “s-apostrophe” because I …

Under What Circumstances Is "Caste" Likely To Be Useful As An Analytic Concept (And Should We Care)?, Sanford V. Levinson, Robert L. Tsai

Faculty Scholarship

This Essay is the product of the 2025 “Constitutional Law Schmooze,” where academics from a variety of disciplines and from all over the country meet to discuss a common topic of constitutional law chosen by the moderator. This year’s topic was “caste.” The two of us, having written independent “tickets” of admission for the schmooze—i.e., short essays setting out our tentative thoughts about “caste”—turned out to be relative skeptics about the value of the term for lawyers. We are certainly not hostile to those who differ with us. This should be regarded as a “friendly dissent,” as distinguished, say, from …

The Immigration Subpoena Power, Lindsay Nash

Articles

For over a century, the federal government has wielded the immigration subpoena power in darkness, forcing private individuals, subfederal governments, and others to help it detain and deport. This vast administrative power has remained opaque even to those who receive these subpoenas and invisible to those it affects most. Indeed, the very people targeted by these subpoenas often don’t know they exist, much less how they facilitate arrest and deportation. For these reasons—and more—this power has escaped the legal battles raging over other immigration enforcement tactics and the scrutiny of journalists, scholars, and courts. Thus, as state- and locality-held information …

The Violence Of Bright Lines, Terrell Woolfolk, Kathryn E. Miller

Articles

The U.S. Supreme Court interprets the Eighth Amendment to prohibit members of certain groups from serving extreme punishments, such as the death penalty and life without parole. For example, the Court has long banned death sentences for people with intellectual disability and for those who were under eighteen years old at the time of their crime. More recently, in Graham v. Florida and Miller v. Alabama, the Court extended this reasoning to sentences of life without parole for those under eighteen—prohibiting the sentence altogether for nonhomicide crimes and barring its mandatory imposition for homicides.

Many scholars and advocates have applauded …

Doubting Thomas And Questioning Stare Decisis Under The Roberts Court, Wilfred U. Codrington Iii

Articles

The article critically examines the erosion of stare decisis under the Roberts Court, highlighting concerns about the Supreme Court's increasing willingness to overturn established precedents. While acknowledging the importance of stare decisis in maintaining stability and equality, the author argues that its practical value is being undermined by ideological polarization and a departure from traditional legal reasoning. The article questions the Court's recent approach to precedent, particularly in cases like Dobbs v. Jackson Women's Health Organization and Students for Fair Admissions v. Harvard, and critiques the conservative majority's aggressive use of judicial power.

Response: Diagonal Representation, Alma Magaña

Articles

A lot has been written about the crisis of indigent defense and the plethora of factors that have led to the crisis, like the lack of guidance on how indigent defense providers can most efficiently distribute their insufficient resources. This lack of guidance has left jurisdictions across the country to their own devices, resulting in a national landscape of very different models, each with its own variations of the same problems plaguing indigent defense.

Competitive Populism, Madhav Khosla

Faculty Scholarship

The preoccupation of comparative constitutional lawyers over the past decade or so has been the rise of authoritarian populism. This chapter focuses on one possible pathway that might follow our present political moment: competitive populism. This phase will involve a certain kind of institutional vacuum: the prior institutions, associated with liberal constitutional democracy, will not lend themselves to being rebooted. In reflecting on this possible future, this chapter explores the nature and form of deinstitutionalization that has occurred under authoritarian populism, and the elements that define the emerging constitutional framework. The implication here is that what will be crucial …