Constitutional Law Commons^™

Judicial Libraries As Predictors For Effective Administration Of Justice In Nigeria, Emmanuel Owushi

Library Philosophy and Practice (e-journal)

The study examined judicial libraries as predictors for effective administration of justice in Nigeria. The population involved all legal practitioners and legal educators in Nigeria. 4000 respondents were sampled. Due to unavailability of the population at the time of the study, the adopted convenience sampling technique to sample 4000 respondents across legal professional bodies in Nigeria. A structured questionnaire titled ‘Use of Judicial Library and Administration of Justice Scale’ was used for data collection. The questionnaire was structured with the 4-point Likert scale response style, designed on Google form and distributed to the respondents via various social media platforms. A …

Assessing The Future Of “Offended Observer” Standing In Establishment Clause Cases, Larry J. Obhof

Cleveland State Law Review

This Article looks at the anomaly of “offended observer” standing in Establishment Clause challenges. It calls for greater consistency in the courts’ application of constitutional standing requirements.

Under Article III, Plaintiffs seeking to raise claims in federal court must allege a concrete and particularized injury in fact in order to support federal jurisdiction. Likewise, plaintiffs seeking to challenge a government policy must allege a unique injury that is separate from the interests of the public at large. The notable exception is where plaintiffs claim personal offense at alleged government entanglement in religion. These “offended observers” are frequently given access to …

Filling The Potholes Of Pretextual Traffic Stops: A Better Road Forward For Ohio, Jordan Weeks

Cleveland State Law Review

The Fourth Amendment was one of the driving forces behind the United States Revolution. This Amendment generally protects individuals against “unreasonable” searches and seizures. But what does “reasonable” mean in the context of a traffic stop?

In 1996, the U.S. Supreme Court in Whren v. United States tried answering this question. In so doing, the Court determined that pretextual traffic stops are “reasonable.” Pretextual traffic stops occur where an officer stops a vehicle and cites a lawful reason for the stop, yet the underlying reason is unlawful. The Whren Court determined that an officer’s intent is completely irrelevant to whether …

“I Wish I Knew How It Would Feel To Be Free”: A Lamentation On Dobbs V. Jackson’S Pernicious Impact On The Lives And Liberty Of Women, April L. Cherry

Cleveland State Law Review

On June 24, 2022, the Supreme Court overturned nearly fifty years of precedent when it declared in Dobbs v. Jackson Women’s Health Organization that abortion was not a fundamental right, and therefore it was not protected by the Fourteenth Amendment and substantive due process. In law school corridors and legal scholar circles, discussion of the Court’s evisceration of abortion rights focused on the corresponding changes in Fourteenth Amendment jurisprudence and the Court’s outright dismissal of stare decisis. But in homes, hospitals, community centers, and workplaces, different conversations were happening. Conversations, mostly had by women, concerned the real-life consequences of overturning …

Fireside Chat With Chief Judge Jeffrey S. Sutton And Professor Nikolas Bowie: A Discussion About The Relevance And Impact Of State Constitutional Law, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Symposium: Gender, Health And The Constitution: The Misalignment Of Medical Capacity And Legal Competence For Perinatal People With Serious Mental Illness, Melisa Olgun, Carlos Larrauri, Sonja Castaneda-Cudney, Elyn Saks

ConLawNOW

This Article evaluates the misalignment of medical capacity and legal competence for perinatal people with serious medical illnesses (SMI), an issue that has had limited discourse in legal academia. It delineates the contours of these concepts, dissecting their theoretical underpinnings and practical applications. While medical capacity is often considered an iterative, context-specific determination, legal competence is typically treated as a rigid, binary legal categorization. It then illustrates how the disparate scope and aims of capacity and competence lead to a precarious misalignment for people with fluctuating mental states, particularly perinatal people with SMI. The Article proposes solutions to harmonize the …

Casar Student Debate#4:"Should Men Be Allowed To Vote On Abortion Legislation?", The Prince Alwaleed Center For American Studies And Research Casar, Yasmeen El Ghazaly, Mark W. Deets

Performances, Events, and Presentations

Every semester, CASAR AUC holds miscellaneous student debates discussing the hot controversial topics in the US, Egypt and from around the world in hopes of raising awareness about these topics & broadening the perspectives of our students as they learn to engage in fruitful discussions as they share different opinion on the topic being deliberated.

At this CASAR Student Discussion event #4 in celebration of International Women's Day, an introduction was given about the historical context for enacting laws on abortion in Egypt & the US, then we watched a brief video where men in the US answered this very …

Symposium: Gender, Health, And The Constitution: Gender-Affirming Care And Children's Liberty, Dara E. Purvis

ConLawNOW

This essay addresses the wave of statutes banning gender-affirming care for transgender and gender-diverse minors passed in states across the country over the last three years. It argues that an underdeveloped understanding of children’s rights makes it more difficult to explain how harmful gender-affirming care bans are and to challenge them in court. After explaining the nature of gender-affirming care, the essay discusses the grounds underlying existing challenges to gender-affirming care bans, highlighting the emphasis on equal protection and parental rights. It concludes by reframing the children’s liberty argument and exploring what the broader consequences of courts recognizing such a …

Beyond The Ban: One Major Challenge Facing The Ftc Non-Compete Rule, Brendan Mohan

ConLawNOW

This article analyzes the implications of President Biden's Executive Order 14036 and the subsequent notice of proposed rulemaking (NPRM) by the Federal Trade Commission (FTC) to ban non-compete agreements. It examines the legal basis for the NPRM, including Sections 5 and 6(g) of the FTC Act, and anticipates potential challenges to its implementation, most notably under the major questions doctrine. It explores the broader ramifications of the NPRM for labor and employment law, emphasizing its potential to reshape administrative agency regulation and the regulatory landscape. It concludes by analyzing the rule under the major questions doctrine and the possible outcomes …

Symposium: Gender, Health And The Constitution: More Than Merely "Two-Legged Wombs": Lessons On Metaphor And Body Politics From Atwood's The Handmaiden's Tale (1985), Rachel Conrad Bracken

ConLawNOW

This essay explores the dehumanizing potential of metaphors used to describe women’s reproductive biology through literary analysis of Margaret Atwood’s canonical feminist novel The Handmaid’s Tale (1985). Attending to the rhetoric that both justifies and contests ritualized rape and forced surrogacy in Atwood’s novel, this essay begins by interrogating the ubiquitous cultural and biomedical metaphors that reduce women and pregnant people to their bodies’ reproductive potential. The first section draws from scholarship in medical anthropology, medical rhetoric, and literary studies to illuminate how gendered stereotypes pervade biomedical, cultural, and legal representations of reproduction, reifying the conflation of women and people …

Symposium: Gender, Health, And The Constitution: Reforming Clinical Trial Pregnancy Exclusions, Jennifer D. Oliva

ConLawNOW

This essay argues the exclusion of pregnant people from drug and biologic clinical trials is paternalistic, unjust, and counterproductive because the failure to include pregnant people in experimental trials can enhance risks to maternal and fetal health. Bioethicists, legal scholars, and other researchers have pleaded for reform in this context for decades. This article describes pregnancy medical drug use and the genesis and evolution of federal regulations and policies that operate to exclude pregnant people from clinical trials. It argues that the implementation of legal reforms that ensure the inclusion of pregnant people in clinical trials is imperative given Covid, …

Symposium; Gender, Health, And The Constitution: Hysteria Redux: Gaslighting In The Age Of Covid, Jane Campbell Moriarty

ConLawNOW

This article addresses the relationship among hysteria, gaslighting, and gender during the Covid pandemic in the political and public-health messaging about Covid. It analyzes the U.S. public health messaging in the age of Covid, explaining how individualism, gender, and gaslighting have shaped the public response to the virus and negatively affected public health. In explaining the poor U.S. public health outcomes during Covid, the article evaluates the role of disinformation about vaccines, the “feminization” of masking, and the “vax and relax” public mantra, which suggested that those who did not relax were perhaps a bit hysterical. Finally, the article considers …

My Body, Whose Choice? A Case For A Fundamental Right To Bodily Autonomy, Miri Trauner

Brooklyn Law Review

In 2022, the US Supreme Court decided Dobbs v. Jackson Women’s Health Organization, which overturned Roe v. Wade and the fundamental right to abortion it had established nearly fifty years prior. The Court’s decision threw into uncertainty the future of not only reproductive rights in this country, but also many other individual rights. At the same time as the decision, the world was still reeling from a global pandemic, and the development of COVID-19 vaccines had spurred widespread controversy over the constitutionality of vaccine mandates. Both advocates for abortion access and opponents to vaccine mandates shared a common cry: “my …

Preempting Private Prisons, Christopher Matthew Burgess

Washington Law Review

In 2019 and 2021, respectively, California and Washington enacted laws banning the operation of private prisons within each state, including those operated by private companies in contracts with the federal government. Nevertheless, the federal government continues to contract with private prisons through Immigrations and Customs Enforcement for the detention of non-United States citizens. In 2022, the Ninth Circuit Court of Appeals held in GEO Group, Inc. v. Newsom that federal immigration law preempted California’s private prison ban.

Preemption—when federal law supersedes state law—is a doctrinal thicket. Federal courts analyze preemption issues in multiple different ways in a particular case, often …

Armed And Under The Influence: The Second Amendment And The Intoxicant Rule After Bruen, F. Lee Francis

Marquette Law Review

In 2001, the Michigan Legislature passed a law prohibiting the possession or use of a firearm by a person under the influence of alcoholic liquor or a controlled substance. Presumably the legislature thought it necessary to prevent individuals from possessing a firearm while under the influence of drugs or alcohol. One study has indicated that alcohol misuse is keenly associated with firearm ownership, risk behaviors involving firearms as well as risk for perpetrating harm to one’s self or others. Researchers also found that an estimated 8.9 to 11.7 million firearm owners binge drink in an average month. In an attempt …

Willfully Forgetting Miranda's True Nature: Vega V. Tekoh Severs The Warnings Requirement From The Constitution, George M. Dery Iii

Marquette Law Review

This Article analyzes Vega v. Tekoh, in which the Supreme Court ruled that

a violation of Miranda was not a violation of the Fifth Amendment privilege

against self-incrimination. This Article examines the original language of the

Miranda opinion, the statements and intentions of the members of the Miranda

Court, and subsequent precedent to determine Miranda’s true nature. Further,

this Article examines the reasoning of Vega and the dangers created by its

pronouncements, especially in light of the Court’s earlier characterization of

Miranda as a constitutional rule in Dickerson v. United States. This Article

asserts that the Justices who …

Filtered Dragnets And The Anti-Authoritarian Fourth Amendment, Jane R. Bambauer

UF Law Faculty Publications

Filtered dragnets are digital searches that identify a suspect based on the details of a crime. They can be designed to withhold information from law enforcement unless and until there is a very high probability that the individual has committed the offense. Examples today include DNA matching, facial recognition from photographs or video of a crime, automated child sexual abuse material detection, and reverse geolocation (geofence) searches. More are sure to come, and their wide-scale use will be irresistible to improve the low rates of criminal detection that currently afflict many communities.

However, filtered dragnets imperil society precisely because they …

Salvaging Federal Domestic Violence Gun Regulations In Bruen’S Wake, Bonnie Carlson

Washington Law Review

Congress passed two life-saving laws in the mid-1990s: a protection order prohibition, which bars firearm possession for protection order respondents, and the Lautenberg Amendment, which bars firearm possession for those convicted of misdemeanor crimes of domestic violence. Both laws have been repeatedly upheld by federal courts nationwide in the nearly thirty years since their enactment. Both faced renewed constitutional challenges after the United States Supreme Court’s foundation-shifting decision in New York State Rifle & Pistol Ass’n v. Bruen on June 23, 2022. The Lautenberg Amendment has fared well; every court to consider it post-Bruen has upheld it. Courts have …

Eavesdropping, The Fourth Amendment, And The Common Law (Of Eavesdropping), Donald A. Dripps

William & Mary Bill of Rights Journal

This Article addresses two of the most momentous and controversial issues raised by the Fourth Amendment. These issues are closely related but distinct. First, is eavesdropping a “search” subject to the Fourth Amendment? Second, are Fourth Amendment “searches” limited to the interests against physical intrusion protected by the common-law torts of trespass and false arrest?

[...]

Remarkably, the debate about the Fourth Amendment, the common law, and eavesdropping has almost completely ignored the common law of eavesdropping. This Article is the first to consider the Fourth Amendment in light of an in-depth examination of the common law’s prohibition of …

Fourteen Going On Forty: Challenging Sex Offender Registration For Juveniles Under The Fourteenth Amendment Equal Protection Clause, Emily Baker

William & Mary Bill of Rights Journal

Part I of this Note reviews the historical background leading to the development of sex offender registration laws and examines relevant Supreme Court precedent. Part II analyzes the principles of juvenile justice, the application of juvenile sex offender registration policies, and the collateral consequences of youth sex offender registration. Part III argues that registered juvenile offenders should be considered a quasi-suspect class and thus receive intermediate scrutiny in equal protection analysis, and challenges the constitutionality of juvenile sex offender registries, particularly the South Carolina statutory scheme. Part IV examines the turning legal tide against juvenile registration through the recent Model …

Tax-Funded Education Savings Account Payments To Religious Schools Violate State Constitution Compulsion Guarantees: The Iowa Example, Allan Walker Vestal

William & Mary Bill of Rights Journal

[...] This Article makes the unremarkable and conservative argument that the transfer of public funds to religious schools under Iowa’s education savings account program violates the Iowa Constitution’s compulsion guarantee.

We start by looking at the Iowa compulsion guarantee, including a review of the Iowa authorities which have construed it, the historical record and setting of its adoption, and the history of its New Jersey antecedent. We then introduce the education savings account mechanism by which Iowa’s religious schools stand to receive more than a third of a billion dollars annually by FY 2027. After that, we consider whether education …

Harmonizing Freedom Of Speech And Free Exercise Of Religion, John Fee

William & Mary Bill of Rights Journal

[...]The close relationship between the free exercise of religion and the freedom of speech points to the sensible assumption that they should receive similar interpretation when dealing with parallel types of problems, or at least that differences in interpretation should be carefully justified.

With this premise, this Article compares freedom of speech and free exercise jurisprudence in various parallel applications, with the suggestion of harmonizing them more closely. While other commentators have compared freedom of speech and free exercise case law with a narrower focus (most commonly, focusing on the incidental burdens issue presented in [Employment Division v. Smith] …

Originalism V. Originalism: How James Madison's Understanding Of The Establishment Clause Can Help Combat Christian Nationalism, Patrick Sawyer

William & Mary Bill of Rights Journal

This Note will focus on what can be done to prevent Christian Nationalism from ending the Establishment Clause. Part I will focus on the cases that defined former Establishment Clause doctrine and how recent cases have done away with the parameters laid out in those earlier cases. Part II will focus on the understanding that James Madison had about the Establishment Clause. Part III will argue that Madison’s understanding of complete separation can and should be codified either under Congress’ enforcement power under the Fourteenth Amendment or the Spending Power of Article I. Part IV will consider how a statute …

The Private Abridgment Of Free Speech, Erin L. Miller

William & Mary Bill of Rights Journal

This Article challenges the orthodoxy that First Amendment speech rights can bind only the state. I argue that the primary justification for the freedom of speech is to protect fundamental interests like autonomy, democracy, and knowledge from the kind of extraordinary power over speech available to the state. If so, this justification applies with nearly equal force to any private agents with power over speech rivaling that of the state. Such a class of private agents, which I call quasi-state agents, turns out to be a live possibility once we recognize that state power is more limited than it seems …

Appendix B - Tax Funds For Religious Schools, Allan Walker Vestal

William & Mary Bill of Rights Journal

No abstract provided.

Charging Abortion, Milan Markovic

Fordham Law Review

As long as Roe v. Wade remained good law, prosecutors could largely avoid the question of abortion. The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization has now placed prosecutors at the forefront of the abortion wars. Some chief prosecutors in antiabortion states have pledged to not enforce antiabortion laws, whereas others are targeting even out-of-state providers. This post-Dobbs reality, wherein the ability to obtain an abortion depends not only on the politics of one’s state but also the policies of one’s local district attorney, has received minimal scrutiny from legal scholars.

Prosecutors have broad charging discretion, …

Four Futures Of Chevron Deference, Daniel Walters

Faculty Scholarship

In two upcoming cases, the Supreme Court will consider whether to overturn the Chevron doctrine, which, since 1984, has required courts to defer to reasonable agency interpretations of otherwise ambiguous statutes. In this short essay, I defend the proposition that, even on death’s door, Chevron deference is likely to be resurrected, and I offer a simple positive political theory model that helps explain why. The core insight of this model is that the prevailing approach to judicial review of agency interpretations of law is politically contingent—that is, it is likely to represent an equilibrium that efficiently maximizes the Supreme Court’s …

Rereading Pico And The Equal Protection Clause, Johany G. Dubon

Fordham Law Review

More than forty years ago, in Board of Education v. Pico, the U.S. Supreme Court considered the constitutionality of a school board’s decision to remove books from its libraries. However, the Court’s response was heavily fractured, garnering seven separate opinions. In the plurality opinion, three justices stated that the implicit corollary to a student’s First Amendment right to free speech is the right to receive information. Thus, the plurality announced that the relevant inquiry for reviewing a school’s library book removal actions is whether the school officials intended to deny students access to ideas with which the officials disagreed. …

Amazon, Spacex And Other Companies Are Arguing The Government Agency That Has Protected Labor Rights Since 1935 Is Actually Unconstitutional, Kate Andrias

Faculty Scholarship

Amazon, SpaceX, Starbucks and Trader Joe’s have all responded to allegations that they have violated labor laws with the same bold argument. The National Labor Relations Board, they assert in several ongoing legal proceedings, is unconstitutional.

SpaceX, for example, says that the NLRB is engaging in “an unlawful attempt … to subject Space X to an administrative proceeding whose structure violates Article II, the Fifth Amendment, and the Seventh Amendment of the Constitution of the United States.”

If these companies prevail, the entire process for holding union elections and for prosecuting employers who break labor laws – in place since …

The Ideology Of Press Freedom, Hannah Bloch-Wehba

Faculty Scholarship

This Article offers a critical account of the law of press freedom. American law and political culture laud the press as an institution that plays a vital role in democracy: guarding against corruption, facilitating self-governance, and advocating for free expression. These democratic functions provide justification for the law of press freedom, which defends the media’s autonomy and shields the press from outside interference.

But the dominant accounts of the press’s democratic role are only partly accurate. The law of press freedom is grounded in large part in journalism’s professional commitments to objectivity, public service, and autonomy. These idealized characterizations, flawed …