Constitutional Law Commons^™

A Blueprint To Reclaim Legal Education From External Rankers, Scott Rempell

Seattle University Law Review

The U.S. News & World Report (U.S. News) law school rankings have impacted the perceptions and behaviors of everyone in the rankings ecosystem for decades. Commentators have almost universally condemned these ordinal rankings, yet they continue to influence the legal education market, often in highly detrimental ways.

The influence of these rankings stems from legitimate market demands, for reasons that the psychology of choice literature makes clear. People want (or need) to efficiently acquire and digest information that could help them make consequential decisions. At a time when consumers of law school information did not have such choice-making assistance, U.S. …

Real-World Consequences For Online Actions: The Case For Expanding Employee Harassment Protection Via Employers’ Rights Of Action, Alexander Barnes

Seattle University Law Review

This Note argues for expanding employers’ access to legal remedies that allow them to recoup the costs of protecting their employees from swatting, doxing, and other online harassment arising from their employees’ professional activity. Part I provides a brief description and history of the online harassment problem and its potentially deadly dangers. Part II describes employers’ legal responsibility to take action to protect their employees from harassment aimed at their employees within the scope of their employment. Part III explores common legal remedies that are currently available to employers, using the state of Washington as an example. Part III also …

Foreseeability And Duty In Washington Negligence Law: Leaving The Road Less Traveled By, Leo Linder

Seattle University Law Review

Washington negligence law is a confusing labyrinth of foreseeability that not even Ariadne’s string could guide plaintiffs out of. Foreseeability is implicated in four distinct analyses, several of which overlap considerably. Doctrines that were once questions of law are now questions of fact, and vice versa. Something needs to change.

Washington has taken the novel approach of bifurcating the duty element into two parts—duty’s mere existence, which is a question of law for the court to determine; and duty’s scope, which is a question of fact handed off to the jury to determine. Foreseeability impacts both of these assessments, but …

King, Christian Ethics, And The Promise Of Positive Fundamental Rights, H. Timothy Lovelace Jr., Patrick T. Smith

Faculty Scholarship

On February 6, 1968, leaders of the Southern Christian Leadership Conference drafted a letter addressed to the president, Congress, and the U.S. Supreme Court. The letter argued that the U.S. constitution facilitated economic and social second-class citizenship because the constitution did not protect economic and social rights but instead protected only civil and political rights. The letter’s authors demanded that the nation repent for its continued subordination of the poor and minorities and atone by recognizing economic and social rights. In this article, the authors recover the draft letter—a proposed economic and social bill of rights—and assert it was and …

Taking Liberties: The Supreme Court’S New Hierarchy Of Rights And Its Victims, Richard B. Katskee

Faculty Scholarship

The legitimacy of our unelected Supreme Court comes from the nature and structural limitations on judicial power. Courts do not make policy in the abstract. Rather, Article III requires federal judges to decide only real, live disputes, on the facts before them. Stare decisis then prevents the courts from changing legal rules willy-nilly. The big, important changes come instead through collective decision-making by our elected representatives. When courts do break from stare decisis, it is normally to expand protections for the politically disempowered. Those protections then make legislatures more representative and act as brakes on abuses of minorities by an …

State Sovereign Immunity After The Revolution, Ernest A. Young

Faculty Scholarship

The Supreme Court’s 1996 decision in Seminole Tribe v. Florida opened an era of dramatic expansion of states’ sovereign immunity from suits by private parties. Nationalist Justices vigorously contested that expansion, vowing that they would never accept Seminole Tribe’s legitimacy or accord it stare decisis effect. In 2020, however, the unanimous decision in Allen v. Cooper did accept Seminole Tribe’s vision of state immunity, apparently ending the Court’s longstanding and bitter division on this issue. This Article assesses Seminole Tribe as a revolution in legal doctrine that established a new paradigm of state immunity law, analogous to the scientific upheavals …

False Accuracy In Criminal Trials: The Limits And Costs Of Cross Examination, Lisa Kern Griffin

Faculty Scholarship

According to the popular culture of criminal trials, skillful cross-examination can reveal the whole “truth” of what happened. In a climactic scene, defense counsel will expose a lying accuser, clear up the statements of a confused eyewitness, or surface the incentives and biases in testimony. Constitutional precedents, evidence theory, and trial procedures all reflect a similar aspiration—that cross-examination performs lie detection and thereby helps to produce accurate outcomes. Although conceptualized as a protection for defendants, cross-examination imposes some unexplored costs on them. Because it focuses on the physical presence of a witness, the current law of confrontation suggests that an …

Safe Storage Laws And Self-Defense From Heller To Bruen, Joseph Blocher

Faculty Scholarship

This short Essay, written for a symposium honoring Walter Dellinger, explores one of the most underappreciated—and indefensible—holdings of District of Columbia v. Heller, the landmark Second Amendment case that Walter ably argued for the District. Most scholars have focused on Heller’s announcement of an “individual” right to keep and bear arms for private purposes and its invalidation of the District’s prohibition on handguns. But along the way, almost in passing, the Court also struck down the District’s requirement that firearms be kept “unloaded and dissembled or bound by a trigger lock or similar device.” It did this not by asking …

Bruen's Enforcement Puzzle: Unearthing And Adjudicating The Historical Enforcement Record In Second Amendment Cases, Andrew Willinger

Faculty Scholarship

The Supreme Court’s 2022 decision in New York State Rifle & Pistol Ass’n v. Bruen brings historical complexity to the fore by instituting a history-focused test for the Second Amendment that demands analogues from the Founding or Reconstruction eras to support modern gun regulations. The majority opinion in Bruen considers, in multiple places, how certain historical gun regulations may have been enforced. In each instance, the Court suggests that evidence of racially disparate enforcement of a historical law is relevant to whether that law is part of the American historical tradition and an appropriate analogue. Historical enforcement data appear to …

Institutional Antiracism And Critical Pedagogy: A Quantum Leap Forward For Legal Education And The Legal Academy, Danielle M. Conway

Faculty Scholarly Works

A fundamental launchpad for redeeming American society is to look to the historical and contextual goals of the Second Founding—the Reconstruction Amendments—and grasp the lessons about justice and equality for all by focusing on the principles of institutional antiracism. While our nation should deploy teaching and learning strategies at all levels of the American system of education, legal education must be out front leading the way to incorporate institutional antiracism through critical pedagogy.

This article provides the historical context in which legal education developed in the antebellum and postbellum periods and up to what might be deemed the “Third Founding” …

Scientific Context, Suicide Prevention, And The Second Amendment After Bruen, Eric Ruben

Faculty Journal Articles and Book Chapters

The Supreme Court declared in New York State Rifle & Pistol Ass’n v. Bruen that modern gun laws must be “consistent with this Nation’s historical tradition of firearm regulation” to survive Second Amendment challenges. Scholarship has shown how this test of historical analogy presents difficulties because of how technological, legal, and social change has shaped policy over the centuries. This Article is the first to assess Bruen as it applies to suicide- prevention laws, and, in doing so, illuminates another form of change that complicates Bruen’s implementation: scientific progress.

As this Article shows, early generations of Americans fundamentally misunderstood mental …

The Downstream Consequences Of Transunion Llc V. Ramirez: Why 5 U.S.C. § 2954 Plaintiffs Have Article Iii Standing Consistent With Lower Courts’ Interpretation Of Transunion, Erin Mccoy

American University Law Review

The Supreme Court, in TransUnion LLC v. Ramirez, created additional standing hurdles by requiring plaintiffs to identify a common law historic-analogue when alleging a statutory harm. In doing so, the Court arguably limited informational standing—a unique Article III standing theory whereby plaintiffs may establish an injury for failure to receive information—because informational injuries did not exist at common law.

This Comment asks whether informational standing survives in a post-TransUnion universe, using 5 U.S.C. § 2954 and lower courts’ interpretation of TransUnion for guidance. The statute, § 2954, comes to light in a string of litigation involving the potential illegality …

Heresies, Heretics, And Hermeneutics: The Battle Of Textualism Against Pragmatism--And Itself--On The Robert Court, Jeffrey A. Van Detta

Belmont Law Review

This Article examines the deepening jurisprudential conflict on the Roberts Court over statutory interpretation, framing the contest between textualism and pragmatism as analogous to theological disputes over orthodoxy and heresy. Drawing on the interpretive writings of Justices Antonin Scalia and Stephen Breyer, as well as the scholarly work of William Eskridge, the Article argues that contemporary textualism—particularly in its more rigid forms—risks distorting statutory meaning when divorced from broader contextual and purposive analysis. Through an eclectic examination of three statutory battlegrounds—the Foreign Sovereign Immunities Act, Reconstruction-era civil rights legislation and its modern successors, and the Alien Tort Statute—the Article demonstrates …

Curing Terry’S Colorblindness, Ilan Friedmann-Grunstein

Oklahoma Law Review

No abstract provided.

Politics And School Libraries, Legal Challenges And Impacts, Dr. Cynthia Boyer

Journal of Race, Gender, and Ethnicity

This article begins by exploring the tensions between public opinion, education, and political conflicts, focusing on how these dynamics shape current debates. It then examines the rising trend of book banning legislation across various states and the constitutional challenges these laws face. Finally, the analysis considers the broader implications of these actions on students, educators, and society, highlighting the potential consequences for the future of education and democratic engagement in the United States.

First Amendment Defenses To Alien Transportation Crimes, Charquia Wright

Scholarly Publications

Florida law now prohibits the transportation of undocumented aliens into the state. Briefings characterize these laws as unconstitutionally preempting federal immigration law and federal due process rights. Despite this emphasis on due process, field, and conflict preemption unconstitutionality, few have addressed the First Amendment implications of human smuggling prosecutions of natural and some corporate persons. The Supreme Court's Free Exercise precedent protects the religious freedoms of natural persons and some corporations. Under state alien transportation laws, these freedoms cease to exist. Because the Supreme Court has extended these religious protections to some corporations, they too are entitled to First Amendment …

Cognitive Content Moderation: Freedom Of Thought And The First Amendment Right To Receive Subconscious Information, Mason Marks

Scholarly Publications

In the television series Severance, employees of Lumon Industries receive brain implants that divide their memories of work and home life. When employees arrive at work, implants block access to memories of the outside world and unlock memories formed on the job. By manipulating the flow of information in employees' brains, Lumon engages in what this Article calls cognitive content moderation. Though Severance is science fiction, emerging technologies, including drugs and electronic devices, promote cognitive content moderation by influencing thought, memory, and perception. Constitutional law is unprepared. To clarify freedom of thought and make it more useful, this Article presents …

Utopian Constitutionalism In Chile, David Landau, Rosalind Dixon

Scholarly Publications

In this article, we argue that the 2022 Chilean draft Constitution helps to articulate the distinction between a transformative constitutional project and a utopian one. Whereas a transformative project lays down markers for social change that will take time to achieve, a utopian project sets out goals that are unlikely to be achieved within any reasonable timeframe. Utopianism is a product of two relationships. The first is the internal relationship between the transformative goals laid out in a constitution and the institutional pathways through which changes will occur. The second is the external relationship between the goals in the text …

Restorative Constitutionalism, David Landau, Rosalind Dixon

Scholarly Publications

Cass Sunstein and other scholars have distinguished between two forms of constitutionalism: preservative constitutionalism, which looks to maintain the status quo, and transformative constitutionalism, which aims to transcend a flawed constitutional history and achieve a better future. In this Article, we introduce a third, undertheorized mode of constitutionalism, which we call restorative. Restorative constitutionalism seeks a return to a lost, more authentic constitutional past, whether real or imagined. Restorative discourse in modern United States constitutionalism is dominated by conservative calls for originalist judicial interpretation. But originalism is only one subset of restoration, and indeed restorative discourse has been present at …

Duties Owed To The Public, Nicolas Cornell

Book Chapters

How does private law conceptualize duties owed to the public-at-large? Are they owed to individual members of the public? This question is interstitial in two ways—it concerns both the space between public law and private law and the spaces between different fields of private law. Different areas of private law handle it in contradictory ways. Duties of public officials are regarded as owed to individual citizens for the purposes of contract law’s preexisting duty rule but as not owed to individuals as a matter of tort law’s public duty rule. Violations of public property might be enforceable through public nuisance, …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Litigating The Future Of Youth’S Access To Gender-Affirming Care, Sophia Ureta-Fulan

UC Law Constitutional Quarterly

Youth should challenge limitations and prohibitions to their pursuit of gender-affirming care under the Americans with Disabilities Act (ADA) and the Equal Protection Clause of the Fourteenth Amendment (EPC). Executive orders in several states have severely limited or prohibited youths’ ability to pursue gender-affirming care. These legal schemes and policies restrict access to gender-affirming care in violation of the ADA and the EPC. This paper discusses the need for gender-affirming care, the policy landscape in the United States restricting youths’ access to gender-affirming, evaluates arguments to expand the ADA to include coverage of gender dysphoria, and explores potential EPC challenges …

On The Constitutional Requirement For Adequate Prenatal Care Post-Dobbs, Ainslee Johnson-Brown

Akron Law Student Publications

This Essay argues that state abortion statutes codifying government interests in the health and welfare of the unborn trigger a constitutional right to prenatal care where adequate medical care is constitutionally required in the penal system. It explores the healthcare mandates required by the U.S. Constitution in the era before the passage of the Supreme Court’s decision in Dobbs, specifically looking at abortion access and prenatal provisions in the penological system. It then dissects abortion-related legislation passed by various states in the wake of Dobbs—emphasizing language within the legislative findings that could trigger a constitutional obligation for prenatal health in …

Bringing A Knife To A Gun Fight; A Cruel And Unusual Punishment, Halle Marchetta

Akron Law Student Publications

The Second Amendment of the U.S. Constitution guarantees an individual’s right to keep and bear arms. The Supreme Court of the United States has described the right as necessary to an individual’s ability to defend his or her person, home, and family. 18 U.S.C. § 922(g)(1) makes it a felony for a convicted felon to “ship, transfer, possess, or receive” firearms or ammunition. The statute blocks an entire class of the American people from exercising the individual freedom guaranteed to them by the Constitution. It does not matter whether the underlying felony conviction is for a non-violent crime or a …

Stolen By Wolves: A Critique On The Supreme Court’S Understanding Of Women’S Reservations In India, Rashmi Raghavan

National Law School of India Review

Women’s reservations were envisioned under Article 15(3) to fulfil the goal of substantive equality in the Constitution of India. This article tries to uncover the procedural missteps that have occurred by the Supreme Court while administering the policy of women’s reservations to various public positions in the country. I argue that the reservation procedure currently put in place by the apex Court by a cumulative reading of the decisions in Anil Kumar Gupta v State of UP and Ors and Rajesh Kumar Daria v Rajasthan Public Service Commision have created an enclosed ceiling on women candidates and is contrary to …

How To Build The Tower Of Babel: The Kannada Language Comprehensive Development Act, 2022 And ‘Language Law’ In India, Aditya Prasanna Bhattacharya, Ritwika Sharma

National Law School of India Review

This paper serves as a critical analysis of the Kannada Language Comprehensive Development Act, 2022 and also as the identification of a novel field within constitutional law - ‘language law’. In so doing, a detailed overview of the history of the law and politics surrounding language in India has been provided. The Kannada Act has also been compared to other state-level language legislations - providing a detailed description of the state of play of language law in India. The paper concludes that although the Kannada Act may appear similar to other such legislations, it seeks to impose and not develop …

Empirical Study: Delay At The Madras High Court In Preventive Detention Cases, Shrutanjaya Bhardwaj

National Law School of India Review

This paper examines the delays in the adjudication of habeas corpus petitions in preventive detention cases by the Madras High Court. Preventive detention, an extraordinary measure authorized under Indian law, poses significant threats to personal liberty. Drawing on a dataset of 7,448 cases spanning 22 years (2000–2022), the study evaluates the court’s efficiency in handling such petitions. Key findings reveal that the court takes an average of 141 days to dispose of a petition, with detenus spending an average of 181 days in detention before their release. Alarmingly, in 30 cases, the maximum detention period lapsed while the petitions were …

Dobbs And Democracy, Melissa Murray, Katherine A. Shaw

Articles

In Dobbs v. Jackson Women’s Health Organization, Justice Alito justified the decision to overrule Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey with an appeal to democracy. He insisted that it was “time to heed the Constitution and return the issue of abortion to the people’s elected representatives.” This invocation of democracy had undeniable rhetorical power: it allowed the Dobbs majority to lay waste to decades’ worth of precedent, while rebutting charges of judicial imperialism and purporting to restore the people’s voices. This Article interrogates Dobbs’s claim to vindicate principles of democracy, examining both the intellectual pedigree …

Sieving Silence: The Communal Question And The Archive Of Indian Constitutional History, Kanika Gauba

National Law School Journal

This paper shows how the archive of Indian constitutional history limits access to constitutional disagreement. It attempts an alternative framing of the issue of political safeguards for religious minorities (‘the communal question’) as a triangle of disagreement among the Sikhs, the Anglo‑Indians, and Sardar Vallabhbhai Jhaverbhai Patel. However, the task is complicated by the silence in the official archives on all three actors. If, as critical historians argue, silence is the very condition of the archive and the writing of history, this paper argues that the historian must ‘sieve’ the inevitably silent archives of Indian constitutional history for perturbations, follow …

Gender In The Making Of The Constitution: Proposals For A Feminist Inquiry Into Indian Constitutional History, Achyut Chetan

National Law School Journal

A feminist inquiry into the framing of the Indian Constitution must retrieve and see the interventions of the women members of the Constituent Assembly for what they historically represent, namely, a feminist authorial voice that was developed over a period of time by the pre-Independence women’s movement in India. For a proper understanding of this voice, we must understand the gendered character of the Constituent Assembly, its architecture, its procedures, the dynamics of the gendered relations among its members, and above all, the performative aspects of the debates. This inquiry must also investigate the language employed by the members and …