Constitutional Law Commons^™

A Major Question For Administrative Law: How Are Courts Applying The Major Questions Doctrine Post West Virginia V. Epa?, Christopher Eckhardt

Catholic University Law Review

On June 30, 2022, judicial deference toward actions of administrative agencies took a significant hit. In West Virginia v. EPA, the Court formally recognized—for the first time—the major questions doctrine, which requires agencies to identify clear congressional authorization when claiming the authority to make decisions of vast economic and political significance. Since June 30, 2022, the Supreme Court has utilized the major questions doctrine in decisions of national importance, including topics ranging from environmental protection efforts to cancelling student debt. This note offers a snapshot of how the major questions doctrine has been applied by federal courts across the country …

Sustaining America's Non-Jurisdictional Wetlands Post-Sackett Through Conservation, Shawna Bligh

UMKC Law Review

Part I of this Article discusses the functional role of wetlands in meeting the intended purpose of the Clean Water Act (“CWA”). The intended purpose of the CWA is to "restore and maintain the chemical, physical and biological integrity of the Nation's waters." The Court's decision in Sackett undermines the intended purpose of the CWA. Wetlands play an essential role in meeting this objective. Wetlands are hydrologically connected to and an embedded part of the overall aquatic ecosystem. The Sackett decision leaves wetlands subject to further degradation.

Part II of this Article provides an overview of the CWA, how we …

Sowing Seeds Of Restriction: Cultivating Insight Into Foreign Agricultural Holdings And Equal Protection Concerns, Payton R. Flower

Arkansas Law Review

Twenty-four states have enacted laws to restrict foreign land ownership, with many placing an emphasis on agricultural land in some capacity. This Comment will argue that state restrictions on foreign land ownership should be vulnerable to equal protection violations when presented squarely to the Supreme Court. Additionally, it will explore the specific implications for agricultural land given its increasing value and economic importance. This analysis is illustrated by the issue presented in Shen v. Simpson, a recent constitutional challenge to Florida’s land ownership restrictions. Part II will discuss the pertinent history and legal landscape that frames the issue. Part III …

Brief For Amici Curiae New York State Legal Scholars In Support Of Defendants-Respondents, Wilfred U. Codrington Iii, Michael Pollack

Amicus Briefs

This document presents a legal brief submitted by amici curiae in a case involving prominent Republican plaintiffs challenging the constitutionality of New York State's absentee voting provisions. The brief emphasizes the fundamental importance of voting as enshrined in the New York Constitution, particularly Article II, which guarantees suffrage to all qualified citizens. It argues that the Constitution's democracy principle supports broad access to the electoral process, countering the plaintiffs' claims that the absentee voting provisions are overly restrictive. The amici curiae assert that the legislative authority to expand voting access is consistent with the overarching democratic commitments of the Constitution. …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

A Government Branch Of Its Own: Reining In The Power Of The Regents Of The University Of California, Veronica Gray

UC Law Constitutional Quarterly

The University of California system is the crown jewel of American public universities. However, Californians have virtually no say over University of California policies. At the University of California’s inception, the drafters of the 1879 California Constitution envisioned a school system controlled by a Board of Regents who are largely insulated from politics. The autonomy from elected officials and the public allows the Regents to have nearly full control over a public good. The Regents’ autonomy and control over the University of California system has led to conflict between the Regents, the public, and state legislators regarding land use, labor, …

The Spy In Your Pocket: Montana’S Tiktok Ban And The Federalism Limits Of State-Level Foreign Policy, Wei Luo

UC Law Constitutional Quarterly

In May 2023, Montana became the first state in America to ban the social media app TikTok. This article proposes a two-prong analytical framework for evaluating the federalism limits of Montana’s TikTok ban (SB 419) and similar laws that other states might enact in the future. The first prong is a mandatory constitutional analysis of whether the state law runs afoul of restrictions on states’ foreign policy powers. These limits are threefold— Article I, Section 10, preemption, and the dormant Commerce Clause. This article focuses on federalism limits that only the states face and does not explore other constraints that …

The Undignified First Amendment, Douglas E. Edlin

UC Law Constitutional Quarterly

Many commonly understand the constitutional right of free speech as an individual right of expression. One reason for this is the ascendance of the dignitarian or autonomy theory of free speech, which has supplanted the marketplace and democratic conceptions as the predominant theory of speech rights in the United States. As a result, scholars, judges, and citizens usually focus on the rights of speakers. But the United States Constitution does not describe a right to speak; the First Amendment protects a right to speech. This article argues that the preoccupation with the dignitarian basis for speech as expression has distorted …

The Death Of "Hey Ump!": New Rules In Pennsylvania And New Jersey Could Get You Locked Up Or Kicked Out For Heckling The Umpire, Hanna Lambert

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Judicial Power And Potential Unconstitutionality: A Scholastic Perspective, Kevin C. Walsh

Catholic University Law Review

This essay is an exercise in constructive retrieval of the traditional American understanding of judicial power with respect to judicial disregard of potentially unconstitutional laws when identifying rules of decision in constitutional adjudication.

This retrieval makes use of the act/potency distinction from Scholastic philosophy, Thomas Aquinas’s distinction between ius and lex, and John Marshall’s canonical account of the judicial application of the Constitution as a rule of decision in Marbury v. Madison to diagnose the cause of contemporary severability doctrine’s problems and to identify a basic framework for replacement doctrine.

I contend that the doctrinal pieces for the replacement …

Confrontation, The Legacy Of Crawford, And Important Unanswered Questions, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The right to confront has a long history. In the United States, the Confrontation Clause provides: “In all criminal prosecutions, the accused shall enjoy the right… to be confronted with the witnesses against him[.]” One of the most troublesome areas of Confrontation Clause jurisprudence has been the Clause’s application to “hearsay statements offered against a criminal defendant pursuant to a hearsay exception or exemption[.]” The Supreme Court’s confrontation analysis in this situation once hinged on the statement’s reliability, with the traditional hearsay rule and its exceptions and exemptions as a guide. But in Crawford v. Washington, the Court considered …

Editor-In-Chief’S Forward, Zoë Grimaldi

UC Law Constitutional Quarterly

No abstract provided.

“It’S Not Ok To Not Be Ok”: Suicide, California’S Lanterman-Petris-Short Act, And The Constitution, Christina Strohmann

UC Law Constitutional Quarterly

Individuals who commit suicide are not incompetent or even making an irrational decision. Yet state laws, such as the Lanterman-Petris-Short Act in California, continue to allow mental health professionals to lock up suicidal patients in psychiatric facilities against the patient’s will. These commitments, however, are not always beneficial, and in many instances are detrimental to both the patient and the mental health professional. Patients can be traumatized from the experience, feel more suicidal from lack of hope and feelings of betrayal. Mental health professionals cannot effectively treat suicidal patients when providers are fearful of liability or when their patients refuse …

Dobbs And Sterilization Decision-Making: Understanding The Coercive Spillover Effects In Reproductive Choice, Thomas Williams

Scholarly Articles in Law Reviews & Journals

The Supreme Court majority in Dobbs v. Jackson Women’s Health Organization argued their decision would have limited impact beyond abortion rights. This Article examines how Dobbs and subsequent state abortion restrictions are likely to increase women’s reliance on permanent sterilization procedures, particularly among already marginalized populations. Drawing on emerging data and historical context, I argue that some post-Dobbs sterilizations should be understood as effectively coerced by state policies, implicating reproductive justice concerns and potentially undermining fundamental rights established in Skinner v. Oklahoma. Then, I demonstrate how interdisciplinary bioethics frameworks and methodologies can help courts better understand the full implications of …

Race Against The Clock: A Comparative Analysis Of New York State's And Germany's Ambitious High-Voltage Transmission Sitting Laws And What New York Can Adopt From The German Model, Andrew Leahy

Cardozo International & Comparative Law Review

The note argues that New York should adopt elements of Germany's centralized regulatory model to streamline the approval and construction of high-voltage transmission lines, which are critical for meeting renewable energy goals. While both New York and Germany face similar challenges in expanding their grids, Germany's centralized approach, including federal oversight and coordinated planning, has proven more efficient. The note critiques New York's decentralized and uncoordinated process, suggesting that adopting Germany's methods could help New York meet its ambitious renewable energy targets and reduce reliance on peaker plants.

Editorial, Nlsj Editorial Board

National Law School Journal

Drawing on select papers from the Pluralist Agreement and Constitutional Transformation (PACT) Conference, this first part of the PACT Special Issue recovers forgotten and unrecorded constitutional histories. The articles reflect on the constitutional archives as a source of historical writing and ask how they are constituted, studied, and challenged. In doing this, they explore the documentary record of India’s constitutional founding, question prevalent narratives, and uncover marginalised perspectives. This comprehensive engagement goes beyond orthodox legal scholarship and illustrates the university’s commitment to multidisciplinary research, with the first issue bringing together contributions from scholars of law, English literature, and political science.