Constitutional Law Commons^™

Implied Consent In Administrative Adjudication, Grace Moore

Washington and Lee Law Review Online

Article III of the Constitution mandates that judges exercising the federal judicial power receive life tenure and that their pay not be diminished. Nonetheless, certain forms of adjudication have always taken place outside of Article III—in state courts, military tribunals, territorial courts, and administrative tribunals. Administrative law judges, employed by various federal administrative agencies, decide thousands of cases each year. A vast majority of the cases they decide deal with public rights, which generally include claims involving federal statutory rights or cases in which the federal government is a party. With litigant consent, however, the Supreme Court has upheld administrative …

A Federal Inmate’S Right To Stay Home, Jordan Thorn

Texas A&M Law Review

Since the start of the COVID–19 pandemic, the Federal Bureau of Prisons (“BOP”) has, for the first time in history, placed tens of thousands of inmates onto home confinement. Likely due to the unprecedented nature and rapid release of inmates to contain the virus, the BOP failed to timely update their policies and procedures surrounding the disciplinary system of inmates on home confinement. This failure to update resulted in the BOP removing inmates from home confinement and placing them back in prison for minor violations. Furthermore, when the BOP chose to remove an inmate from home confinement, it did so …

Self-Evident: Why The Declaration Of Independence Is America’S True Constitution, Chelsea H. Blake

Northwestern Law Journal des Refusés

No abstract provided.

Brief Of The Manhattan Institute And Notre Dame Education Law Project As Amici Curiae Supporting Petitioners, Nicole Stelle Garnett, Ilya Shapiro, Tim Rosenberger

Court Briefs

No. 23-1084
Jill Hile v. Michigan

On Petition for a Writ of Certiorari to the United States Court of Appeals for the Sixth Circuit

From the Background and Summary of Argument

Petitioners are members of Parent Advocates for Choice in Education Foundation (PACE), which seeks to protect and further educational rights. They contend that Art. VIII, § 2 of the Michigan constitution discriminates against religion. Accordingly, its enforcement would violate the Free Exercise Clause.

Decoding Dobbs: A Typology To Better Understand The Roberts Court's Jurisprudence, Katie Yoder

Honors Projects

The U.S. Supreme Court first recognized Substantive Due Process (“SDP”) in the early twentieth century. In Lochner v. New York, the Court established that there are certain unenumerated rights that are implied by the Fourteenth Amendment.Though SDP originated in a case about worker’s rights and liberties, it quickly became relevant to many cases surrounding personal intimate decisions involving health, safety, marriage, sexual activity, and reproduction.Over the past 60 years, the Court relied upon SDP to justify expanding a fundamental right to privacy, liberty, and the right to medical decision making. Specifically, the court applied these concepts to allow for freedoms …

Reno-Sparks Indian Colony V. Haaland, William N. Rose

Public Land & Resources Law Review

Reno-Sparks Indian Colony v. Haaland added clarity to the scope of a federal agency’s duty to consult with Tribes under the National Historic Preservation Act. The case was the culmination of unsuccessful litigation efforts by Tribes to stop a large mining project, and it demonstrated the high hurdle Tribes face when challenging whether a federal agency has engaged in reasonable and good faith consultation.

Solar Energy Industries Association V. Federal Energy Regulatory Commission, Brandy Keesee

Public Land & Resources Law Review

In Solar Energy Industries Association v. Federal Energy Regulatory Commission (“Solar Energy”), the court grappled with a complex web of regulatory and environmental considerations. The overall dispute was the promulgation and implementation of Order 872, a directive issued by the Federal Energy Regulatory Commission (“FERC” or “Commission”), and its alignment with the Public Utility Regulatory Policies Act of 1978 (“PURPA”) and the Administrative Procedure Act (“APA”). The dispute in Solar Energy is about FERC’s interpretation and application of PURPA in managing qualifying facilities (“QFs”). The crux of the contention was whether FERC’s 2020 rule revisions set forth in Order 872 …

The Major Questions Doctrine’S Domain, Todd Phillips, Beau J. Baumann

Brooklyn Law Review

In West Virginia v. EPA, the Supreme Court elevated the major questions doctrine to new heights by reframing it as a substantive canon and clear statement rule rooted in the separation of powers. The academic response has missed two unanswered questions that will determine the extent of the doctrine’s domain. First, how will the Court apply the doctrine to a range of different regulatory schemes? The doctrine has so far only been applied to nationwide legislative rules that are both (1) economically or politically significant and (2) transformative. It is unclear whether the doctrine applies to alternative modes of regulation …

When Life Takes Your Lemons: Resolving The Legislative Prayer Debate In School Board Settings In Light Of Kennedy V. Bremerton School District, Jordan Halper

Brooklyn Law Review

The COVID-19 pandemic fanned the flames of a fire that had been slowly but steadily burning since 2016, arming the loudest warriors of America’s endless culture war with a slew of new divisive issues. Virtually overnight, parental rights groups began capitalizing on the frustration in their communities in order to spur political change, training their ire toward public schools. What began as a crusade against mask mandates and vaccines manifested into a well-funded effort by ultraconservative groups to undermine the public education system as a whole. Against this backdrop, the legislative prayer exception—which was meant to sanction the practice of …

Agency Deference After Loper: Expertise As A Casualty Of A War Against The “Administrative State”, Michael M. Epstein

Brooklyn Law Review

Chevron deference has been a foundational principle for administrative law for decades. Chevron provided a two-step analysis for determining whether an agency would be given deference in its decision-making. This deferential test finds its legitimacy on the grounds of agency expertise and accountability. However, when the Supreme Court of the United States granted certiorari in Loper Bright Enterprise v. Raimondo, it positioned itself to potentially overrule or severely limit Chevron. An overruling of Chevron would place judicial deference to administrative agency decisions in peril by allowing courts to substitute their own views over the informed opinions of agency experts. This …

Creative Jurisprudence: The Paradox Of Free Speech Absolutism, R. George Wright, Chris Rowley

University of Colorado Law Review Forum

Governments often seek to restrict speech on the basis of its content, navigating the ever-complex terrain between constitutional freedoms and regulatory interests. While the United States judiciary has historically endeavored to balance competing constitutional questions and government interests when scrutinizing content-based speech regulations, recent trends signify a troubling shift. The judiciary has recently embraced what this Article refers to as free speech absolutism, whereby it sidesteps the longstanding, intricate process of balancing constitutional values and public interests, in favor of an unequivocal endorsement of speech rights. This simplified judicial strategy proceeds first with an acknowledgment of the paramount importance of …

Settler Colonialism And Ecosystem Change: How Ideology Has Shaped Minnesota’S Environments, Sarah E. Hobby

History Honors Projects

The formation of a uniquely American land ethic—defined by European political history and Christian biblical doctrine and forged through systems of dispossession—is central to the creation of environments within the United States today. Using Minnesota as a microcosm to understand how settler colonial interactions played out all across the United States, this paper analyzes connections between violent dispossession of Indigenous people and the degradation of environments. By understanding how Ojibwe and Dakota people think about and have shaped Minnesotan lands throughout their history and comparing Indigenous land-ethics to the Euro-American-settler land ethic, this paper evaluates the role that ideology and …

The History Of Bans On Types Of Arms Before 1900, David B. Kopel, Joseph G.S. Greenlee

Journal of Legislation

This Article describes the history of bans on particular types of arms in America, through 1899. It also describes arms bans in England until the time of American independence. Arms encompassed in this article include firearms, knives, swords, blunt weapons, and many others. While arms advanced considerably from medieval England through the nineteenth-century United States, bans on particular types of arms were rare.

The Original Meaning Of Commerce In The Indian Commerce Clause, Gregory Ablavsky

Connecticut Law Review

In Haaland v. Brackeen, the Supreme Court returned to the foundational question of federal authority over relations between the United States and Native nations, long known as “Indian affairs.” The decision reaffirmed well-established precedent affirming broad federal authority in the area, but it also underscored ongoing disagreement, as Justices Gorsuch and Thomas offered lengthy and dueling investigations of the original understanding.

This Essay explores one aspect of that history: the original meaning of “commerce” in the Indian Commerce Clause. Nearly a decade ago, I wrote an article that sought, as its title indicated, to move “beyond the Indian Commerce Clause.” …

An Analysis Of A Changing Supreme Court Viewed Through Students For Fair Admissions V. President And Fellows Of Harvard College, Reed Fagg

Finance Undergraduate Honors Theses

An analysis of the Students for Fair Admissions v. President and Fellows of Harvard College and Students for Admissions v. the University of North Carolina Chapel Hill to better understand the changes in the Supreme Court. Breaking down of the argument and a study of societal impacts.

The Private Litigation Impact Of New York’S Green Amendment, Evan Bianchi, Sean Di Luccio, Martin Lockman, Vincent Nolette

Sabin Center for Climate Change Law

The increasing urgency of climate change, combined with federal environmental inaction under the Trump Administration, inspired a wave of environmental action at the state and local level. Building on the environmental movement of the 1970s, activists have pushed to amend more than a dozen state constitutions to include “green amendments” — self-executing individual rights to a clean environment. In 2022, New York activists succeeded, and New York’s Green Amendment (the NYGA) now provides that “Each person shall have a right to clean air and water, and a healthful environment.”

However, the power of the NYGA and similar green amendments turns …

Anti-Transgender Constitutional Law, Katie Eyer

Vanderbilt Law Review

Over the course of the last three decades, gender identity anti-discrimination protections and other transgender-supportive government policies have increased, as government entities have sought to protect and support the transgender community. But constitutional litigation by opponents of transgender equality has also proliferated, seeking to limit or eliminate such trans-protective measures. Such litigation has attacked as unconstitutional everything from laws prohibiting anti-transgender employment discrimination to the efforts of individual public school teachers to support transgender teens.

This Article provides the first systematic account of the phenomenon of anti-transgender constitutional litigation. As described herein, such litigation is surprisingly novel: while trans-protective measures …

Computationally Assessing Suspicion, Wesley M. Oliver

Law Faculty Publications

Law enforcement officers performing drug interdiction on interstate highways have to decide nearly every day whether there is reasonable suspicion to detain motorists until a trained dog can sniff for the presence of drugs. The officers’ assessments are often wrong, however, and lead to unnecessary detentions of innocent persons and the suppression of drugs found on guilty ones. We propose a computational method of evaluating suspicion in these encounters and offer experimental results from early efforts demonstrating its feasibility. With the assistance of large language and predictive machine learning models, it appears that judges, advocates, and even police officers could …

American Democracy And The State Constitutional Convention, Jonathan L. Marshfield

UF Law Faculty Publications

Fears about the health of American democracy are high. And with the Supreme Court loosening federal constraints and returning critical substantive issues to the states, there is new and particular interest in the democratic quality of state institutions. While some see opportunity in this decentralization, there is also good reason to believe that many states are failing to deliver on America’s democratic ideals. There are growing concerns, for example, that many state legislatures are enacting laws wildly misaligned with majority preferences on important issues like guns, abortion, LGBTQ+ rights, and healthcare. There are also deeper structural concerns regarding partisan gerrymandering, …

Democratic Vibes, Jonathan Gingerich

William & Mary Bill of Rights Journal

Who should decide who gets to say what on online social media platforms like Facebook, Twitter, and YouTube? American legal scholars have often thought that the private owners of these platforms should decide, in part because such an arrangement is thought to serve valuable free speech interests. This standard view has come under pressure with the enactment of statutes like Texas House Bill 20, which forbids certain platforms from “censoring” user content based on viewpoint. Such efforts to regulate the speech policies of online platforms have been challenged for undermining the editorial speech rights of these platforms and allowing the …

No Need To Wait: Congress Has The Power Under Section Five Of The Fourteenth Amendment To Abolish The Death Penalty In The States, Eric M. Freedman

William & Mary Bill of Rights Journal

Reformers currently proposing the abolition of capital punishment by federal legislation have only targeted the federal death penalty. They are aiming too low. Concerns about the roughly 50 prisoners facing execution by the federal government should not cause advocates to ignore the approximately 2,400 on the combined Death Rows of the states. Congress has the authority to abolish the death penalty in the states, and good reason to exercise it.

This Article takes as a given the Supreme Court’s view that the death penalty is not itself unconstitutional.

But under existing law Congress would have no difficulty in compiling a …

Convening For (Climate) Change: The Constitutional Case For A U.S. Climate Assembly, Will Mccabe

William & Mary Bill of Rights Journal

This Note argues that a national U.S. Citizens’ Assembly for Climate would not violate the non-delegation doctrine which prevents Congress from improperly delegating its constitutional legislative power to another body. A climate assembly could potentially be authorized in several ways; this Note explores that of Congress convening a climate assembly through statute, either as an independent body or as a body under the authority of the Environmental Protection Agency. Part I examines the current state of American climate policy and the political debate surrounding it, putting forward a case for a novel approach, and also examines the concept of climate …

Federalism, Rebellion, And The Rule Of Law In Northern Syria And Western Kurdistan: Constitutions Against The Nation-State, Robert Woehrle

William & Mary Bill of Rights Journal

This Note will be examining the way in which this social contract, the “Social Contract of the Democratic Federation of Northern Syria,” and the social order it proposes, “Democratic Confederalism,” represents a significant departure from the constitutional order of ethnic nation-states that arose in the postcolonial, and particularly the post-Ottoman, Middle East.

[...]

This Note then contrasts the “Social Contract of the Democratic Federation of Northern Syria” with the Syrian constitutions, first the 1973 Constitution that had been in effect until the outbreak of the Syrian Civil War, followed by a brief look at the changes represented by the 2012 …

Editor-In-Chief’S Forward, Zoë Grimaldi

UC Law Constitutional Quarterly

No abstract provided.

I Hope This Email Finds You Well: The Eleventh Circuit Addresses The Standard Of Review For Incarcerated Persons’ Outgoing Emails, Olivia Greenblatt

Mercer Law Review

An unfortunate and inevitable aspect of incarceration is separation from the outside world. The various constraints on communication exemplify one of the many ways through which incarceration creates this divide. Maintaining the connections that incarcerated people have with their loved ones and communities is essential for fostering a vital support system, facilitating the exchange of information, aiding in successful reintegration, and reducing recidivism upon release. Unfortunately, instead of encouraging and safeguarding this communication, prisons often curtail it through restrictive methods: visitation is limited, phone calls are costly, physical mail involves a time-consuming and intrusive process, and now, email is being …

A Botched Procedure For Removing A High Court Judge: A Critique Of Joshua Ndipyola Banda V Attorney General 2022/Ccz/0010, O'Brien Kaaba

SAIPAR Case Review

The judiciary performs a key role in implementing the constitution and safeguarding constitutional order. Democracy cannot thrive when the judiciary is pliant. An independent judiciary is fundamental to constitutional democracy. Not only should judges be appointed in a transparent and credible manner, but their removal should insulate the judiciary from potential reprisals. Certainly, incompetent, and professionally unfit judges should have no place in the judiciary and judges who grossly misconduct themselves should be held accountable and in extreme cases, must be removed from office. However, how judges are removed has an impact on the autonomy of the judiciary. If the …

Sangwa V Attorney General And Law Association Of Zambia (2021 /Ccz/0012) [2023] Zmcc 6 (31 July 2023), Hope Sthembile Homela, Robert Farbman, J. P. Swenson

SAIPAR Case Review

This case underscores the critical need for the judiciary to assert its financial independence, ensuring that its budget and resources are not subject to undue influence or control by the executive. In this landmark ruling, the Constitutional Court missed an important opportunity to set a stronger precedent for the autonomy of the judiciary by not fully addressing the constitutional violations at hand relating to the financial independence of the judiciary. The Court’s decision, while acknowledging the issue of financial independence, failed to provide a decisive remedy to protect the judiciary from the continuing risk of executive interference. Recognizing the necessity …

The Preservation Of Marine Fisheries Resources Within Asean Nations’ Eez, Ida Kurnia

Indonesia Law Review

The preservation of marine fisheries resources within ASEAN nations’ Exclusive Economic Zone (EEZ) is an urgent and pressing challenge requiring collaborative efforts from all ASEAN nations. Challenges such as illegal fishing, climate change, and lack of coordination between ASEAN nations may cause damage to marine biota food chain, especially marine fisheries in Southeast Asia region. To solve this conundrum, collaboration between ASEAN nations pose as the key solution. The research method used in this study is normative juridical approach by analyzing primary legal materials such as International Agreements and other international laws & sources. Further analysis was also …

American Law In The New Global Conflict, Mark Jia

Georgetown Law Faculty Publications and Other Works

This Article surveys how a growing rivalry between the United States and China is changing the American legal system. It argues that U.S.-China conflict is reproducing, in attenuated form, the same politics of threat that has driven wartime legal development for much of our history. The result is that American law is reprising familiar patterns and pathologies. There has been a diminishment in rights among groups with imputed ties to a geopolitical adversary. But there has also been a modest expansion in rights where advocates have linked desired reforms with geopolitical goals. Institutionally, the new global conflict has at times …

Gender Pay Equity: An Analysis Of The United States Women’S National Team Soccer Settlement, Joni Hersch, Delaney M. Beck

Utah Law Review

Even though the United States Women’s National Team (“WNT”) has been far more successful than the United States Men’s National Team (“MNT”), the team members have experienced unequal treatment from the United States Soccer Federation (“USSF”) since its inception. In March 2019, members of the WNT filed suit against USSF, alleging that it had violated the Equal Pay Act (“EPA”) and Title VII of the Civil Rights Act of 1964. The complaint alleged that USSF had a policy of discriminating against the WNT due to their players’ gender by paying them less than the MNT and providing them with lesser …