Constitutional Law Commons^™

The Death Of The Evolving Standards Of Decency, Meghan J. Ryan

Faculty Journal Articles and Book Chapters

The Eighth Amendment Punishments Clause is in jeopardy. The constitutionality of punishments is usually judged according to the “evolving standards of decency that mark the progress of a maturing society.” And in evaluating these standards, the Court has traditionally looked to changing societal views on punishment. This is a living constitution approach to interpretation, and the Eighth Amendment is the only area of law in which the Court has consistently and explicitly ap-plied such an approach. But a living constitution approach is diametrically opposed to the current Court’s focus on originalism. This is the first originalist Court in history, and …

The Wages Of Hitching Wagons, Thomas B. Bennett

Faculty Journal Articles and Book Chapters

This article examines the challenges faced by states that align their constitutions with federal doctrine through the practice of "lockstepping"—adopting federal legal standards into state law. Lockstepping binds states to federal law, regardless of its trajectory. Part I traces the evolution of standing doctrine in both federal courts under Article III and Kentucky courts under its constitution. Part II presents an originalist critique of the federal injury-in-fact requirement, highlighting emerging efforts to abandon this requirement in federal courts. Part III discusses the dilemma states like Kentucky face, balancing constitutional interpretation, federalism, and legal stability.

The Emerging Constitutional Law Of Remote Criminal Justice, Jenia I. Turner

Faculty Journal Articles and Book Chapters

The COVID-19 pandemic compelled courts to experiment with a novel mode of criminal process: conducting proceedings via video. The remote format helped protect public health during the pandemic, and its convenience has led many states to continue using it in certain circumstances. Yet questions about its desirability and constitutionality have lingered, and many are concerned that it undermines the justice and integrity of criminal proceedings. As the future of remote criminal justice is up for debate, it is important to assess to what degree it complies with fundamental constitutional principles. To that end, this Article offers a comprehensive analysis of …

Litigating Original Meaning From Heller To Rahimi: The Role Of Lawyering In The Confused Path Of Second Amendment Jurisprudence, Lawrence Rosenthal

American University Law Review

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the “right to keep and bear arms” found in the Second Amendment, in District of Columbia v. Heller. Subsequently, the Court, in New York State Rifle & Pistol Ass’n v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. Most recently, in United States v. Rahimi, …

“A Hot Day In Iqaluit”? Environmental Rights In Canada’S Constitutional Cul-De-Sac, Stepan Wood

All Faculty Publications

Proposals to include an explicit right to a healthy environment in Canada’s constitution have been advanced since the early 1970s, but Canada is stuck in a decades-long impasse that precludes substantial constitutional amendment. This article uses the metaphor of the cul-de-sac to explore the prospects for legal recognition of environmental rights in this situation. It canvasses past efforts to entrench general and Indigenous environmental rights in Canada’s constitution, introduces culs-de-sac metaphorical and real, and highlights the irony of one commentator’s 2005 quip that it will be “a hot day in Iqaluit” when Canada’s constitution undergoes significant amendment. It then surveys …

The Power Of The Electorate Under State Constitutions, Joshua A. Douglas

Law Faculty Scholarly Articles

Voters are special. They are the foundation of our constitutional democracy. Everything starts with the voters.

State constitutions, too, are special, as the recent surge in scholarship on state constitutions demonstrates.

This Article bridges the gap between various strands of scholarship on state constitutions, the right to vote, and democracy, making several novel claims about the way in which state constitutions protect voters. First, this Article canvasses all fifty state constitutions to conclude that they contain multiple levels of protection for the right to vote through numerous clauses that, in combination, elevate the status of voters in the constitutional structure. …

Solving A Sixth Amendment Crisis: The Case For Resource Parity In Georgia's Indigent Defense System, Meagan R. Hurley

Articles

The United States criminal legal system employs what is said to be an “adversary” system—one in which opposing parties—the prosecution and the defense—present their evidence and arguments (usually in conflict with one another) to a neutral third party (a judge or jury) for adjudication. The idea behind the adversarial process is that a judge or jury is best positioned to make determinations of guilt or innocence once provided with reliable information from competent, zealous, and prepared advocates on both sides of the podium. At its core, the adversarial system is meant to function as the mechanism by which constitutional principles …

Signaling Sexual Harassment, Emily Suski

Emory Law Journal

Following the Supreme Court’s decision to eliminate the right to abortion in Dobbs v. Jackson Women’s Health Organization, Title IX stands as a potentially powerful statutory bulwark against further erosions of sex and gender equality rights. Title IX’s purpose is to protect against and eradicate sex discrimination of all forms, including sexual harassment, in education. Yet, it rarely fulfills this purpose. Although the Supreme Court has said that sexual harassment is a form of sex discrimination proscribed by Title IX, it has failed to define sexual harassment or provide more than the barest of guidance on how severe it …

Indefinite Detention Under Part Xx.1 Of The Criminal Code And Winko V. British Columbia, Jamie Cameron

Articles & Book Chapters

“Indefinite Detention Under Part XX.1 of the Criminal Code and Winko v. British Columbia” is chapter 27 in a textbook titled Canadian Anthology on Mental Health and the Law. It draws on the author’s ten years as a legal member and alternate chair on the Ontario Review Board, as well as on her participation in a research study on perceptions of fairness in ORB proceedings, to provide critical comment on the procedural fairness and constitutionality of forensic detention for mentally disordered criminal offenders (i.e. not criminally responsible (NCR); unfit to stand trial (UST); and dual status offenders …

The Need For Corporate Guardrails In U.S. Industrial Policy, Lenore Palladino

Seattle University Law Review

U.S. politicians are actively “marketcrafting”: the passage of the Bipartisan Infrastructure Law, the CHIPS and Science Act, and the Inflation Reduction Act collectively mark a new moment of robust industrial policy. However, these policies are necessarily layered on top of decades of shareholder primacy in corporate governance, in which corporate and financial leaders have prioritized using corporate profits to increase the wealth of shareholders. The Administration and Congress have an opportunity to use industrial policy to encourage a broader reorientation of U.S. businesses away from extractive shareholder primacy and toward innovation and productivity. This Article examines discrete opportunities within the …

Securities Regulation And Administrative Deference In The Roberts Court, Eric C. Chaffee

Seattle University Law Review

In A History of Securities Law in the Supreme Court, A.C. Pritchard and Robert B. Thompson write, “Securities law offers an illuminating window into the Supreme Court’s administrative law jurisprudence over the last century. The securities cases provide one of the most accessible illustrations of key transitions of American law.” A main reason for this is that the U.S. Securities and Exchange Commission (SEC) is a bellwether among administrative agencies, and as a result, A History of Securities Law in the Supreme Court is a history of administrative law in the Supreme Court of the United States as well.

Delegated Corporate Voting And The Deliberative Franchise, Sarah C. Haan

Seattle University Law Review

Starting in the 1930s with the earliest version of the proxy rules, the Securities and Exchange Commission (SEC) has gradually increased the proportion of “instructed” votes on the shareholder’s proxy card until, for the first time in 2022, it required a fully instructed proxy card. This evolution effectively shifted the exercise of the shareholder’s vote from the shareholders’ meeting to the vote delegation that occurs when the share-holder fills out the proxy card. The point in the electoral process when the binding voting choice is communicated is now the execution of the proxy card (assuming the shareholder completes the card …

Capitalism Stakeholderism, Christina Parajon Skinner

Seattle University Law Review

Today’s corporate governance debates are replete with discussion of how best to operationalize so-called stakeholder capitalism—that is, a version of capitalism that considers the interests of employees, communities, suppliers, and the environment alongside (if not before) a company’s shareholders. So much focus has been dedicated to the question of capitalism’s reform that few have questioned a key underlying premise of stakeholder capitalism: that is, that competitive capitalism does not serve these various constituencies and groups. This Essay presents a different view and argues that capitalism is, in fact, the ultimate form of stakeholderism. As such, the Essay urges that the …

The Esg Information System, Stavros Gadinis, Amelia Miazad

Seattle University Law Review

The mounting focus on ESG has forced internal corporate decision-making into the spotlight. Investors are eager to support companies in innovative “green” technologies and scrutinize companies’ transition plans. Activists are targeting boards whose decisions appear too timid or insufficiently explained. Consumers and employees are incorporating companies sustainability credentials in their purchasing and employment decisions. These actors are asking companies for better information, higher quality reports, and granular data. In response, companies are producing lengthy sustainability reports, adopting ambitious purpose statements, and touting their sustainability credentials. Understandably, concerns about greenwashing and accountability abound, and policymakers are preparing for action.

In this …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Marijuana Insurgency: Federalism And Social Reframing In Policy Reform, Matthew P. Cavedon

Seattle University Law Review

After fifty years of federal prohibition, marijuana reform efforts have won political and legal success. These victories hold lessons for anyone seeking to resist federal law without being able to directly affect it.

Victory can come from reframing an issue. For marijuana reform, social reframing—not formal legal analysis or material factors—provides the best explanation for how advocates achieved change. Their unconventional political tactics, akin to those used by insurgents in wartime, undercut federal prohibition by winning hearts and minds.

This is an analysis of the sociology of legal change. It is also the story of how ordinary Americans retook personal …

The Repeal Of Religious Accommodations -- A Constitutional Analysis, Ronald J. Colombo

American University Law Review

Under modern Supreme Court jurisprudence, the First Amendment ordinarily imposes no heightened standard of review upon neutral laws of general applicability that coincidentally burden the free exercise of religion. To relieve or minimize this burden, however, lawmakers are generally free to promulgate exemptions from, or accommodations to, such laws for the benefit of religious adherents. Such accommodations are common.

When a law is not neutral with respect to religion, or when the law is not generally applicable, then it will be subject to the exacting test of strict scrutiny to the extent that it burdens the free exercise of religion. …

The Constitutionality Of Barring Undocumented Immigrants From Second Amendment Protections, Abby Vorhees

American University Law Review

Under current federal law, undocumented immigrants remain unable to access one of the most fundamental rights contained within our Constitution: the Second Amendment right to keep and bear arms. Several undocumented immigrants have challenged the constitutionality of the federal prohibition (18 U.S.C. § 922(g)(5)(A)), resulting in a three-way circuit split on whether undocumented immigrants are protected by the Second Amendment. The Supreme Court, however, has remained silent on the issue, leaving undocumented immigrants unprotected.

The Supreme Court’s 2022 Second Amendment decision, N.Y. State Pistol & Rifle Ass’n v. Bruen, upended the traditional method of constitutional review, means-end scrutiny, in favor …

Targeting Children: Liability For Algorithmic Recommendations, Michal Lavi

American University Law Review

We live in the algorithmic society, characterized by massive digital surveillance and data collection by private companies exploiting human information vulnerabilities for profit. The infrastructure of free expression translates into an infrastructure of digital surveillance. This model, dubbed “surveillance capitalism,” includes massive personalized algorithmic targeting that departs from human speakers, allowing a level of influence never witnessed before in scale, scope, or depth.

Personalized targeting can garner many benefits, as it allows individuals to find content that interests them without needing to invest energy in seeking out that content. However, personalized targeting can also cause tremendous harm because it can …

"Background Principles" In The Law Of Takings, David A. Dana

American University Law Review

The Supreme Court appears to be on a mission to enhance the scope of liability under the Takings Clause, the result of which could be the chilling of federal, state, and local regulation. However, the Court has acknowledged that there is no takings liability when, under “background principles,” the property owner lacked the very right she is claiming the government has taken via regulation. The rationale for, and hence proper scope of, the background principles exception to takings liability is opaque in the case law. This Article offers three possible rationales for the background principles exception that could guide courts …

Green Eggs And Law: Evaluating Dr. Seuss’ Impact On The Legal System, John Browning

American University Law Review

For decades, the simple wisdom of Dr. Seuss (a/k/a Theodore Geisel) has occupied a beloved spot in the hearts of the countless millions who grew up with his children's books and the animated specials they spawned. And since some children grow up to become lawyers and judges, it is hardly surprising to see Dr. Seuss's lessons enshrined in our legal system. Judges from trial courts to the U.S. Supreme Court have referenced Dr. Seuss's works in addressing everything from environmental concerns to personhood to inmate rights. No less a figure than U.S. Supreme Court Justice Elena Kagan referenced Seuss's 1960 …

Rethinking Antebellum Bankruptcy, Rafael I. Pardo

University of Colorado Law Review

Bankruptcy law has been repeatedly reinvented over time in response to changing circumstances. The Bankruptcy Act of 1841—passed by Congress to address the financial ruin caused by the Panic of 1837—constituted a revolutionary break from its immediate predecessor, the Bankruptcy Act of 1800, which was the nation’s first bankruptcy statute. Although Congress repealed the 1841 Act in 1843, the legislation lasted significantly longer than recognized by scholars. The repeal legislation permitted pending bankruptcy cases to be finally resolved pursuant to the Act’s terms. Because debtors flooded the judicially understaffed 1841 Act system with over 46,000 cases, the Act’s administration continued …

Federal Indian Law As Method, Matthew L.M. Fletcher

University of Colorado Law Review

No abstract provided.

Moore V. United States: The Constitutionality Of The Taxation Of Unrealized Gains, Loren Naldoza

Lewis & Clark Law Review

Rarely in modern tax jurisprudence does the common adage “nothing is certain except death and taxes” receive a challenge in the highest court in the land. This year, the Supreme Court is considering the most existential question concerning the federal income tax in over a century: what is “income”? The definition of “income” has gone through several developments and adjustments since the enactment of the Sixteenth Amendment. Two taxpayers have reached the Supreme Court to challenge one such aspect of the definition of “income”— whether realization is a constitutional requirement as required by the Sixteenth Amendment. When an accession to …

Punishment After The Punishment: How Deportation Of Juvenile Offenders Violates The Eighth Amendment And International Law, Elisabeth Sethi

Lewis & Clark Law Review

This Comment examines how the United States deviates from most of the Western world by allowing deportation of noncitizen juvenile offenders to be essentially mandatory for a wide number of crimes. Deportation is “mandatory” in the sense that it is often an automatic result with very few options for judges to consider relevant mitigating factors, such as how long the noncitizen has lived in the United States, ties to U.S. citizen family members, or behavior since committing the crime. Deportation of juvenile offenders is applied harshly to both authorized and unauthorized noncitizens, many of whom have lived in the United …

Strictly Intersectional Scrutiny: A Recommendation For Transforming The Epc To Highlight Queer Black Women, Kayla M. Richardson

Undergraduate Honors Theses

The purpose of this thesis is to explore the interpretation of the Equal Protection Clause by the Supreme Court of the United States (SCOTUS) and how this interpretation can become more intersectional for Black queer women. This question is explored within the scope of two theoretical frameworks: Derrick Bell’s theory of interest convergence and Kimberlé Crenshaw’s theory of intersectionality. This project examines whether any factors compel SCOTUS to be more intersectional in its approach to the Fourteenth Amendment. Simultaneously, this study also considers what social contexts make SCOTUS more likely to focus on the interests of the oppressor, a demographic …

Puerto Rican Presidential Voting Rights: Why Precedent Should Be Overturned, And Other Options For Suffrage, Sigrid Vendrell-Polanco

Faculty Articles

Part I of this article discusses the history and background of the United States' acquisition of Puerto Rico and how Puerto Rico became the commonwealth territory that it is today. The problematic history between the United States and Puerto Rico has been scrutinized in many works; however, this article provides a more recent overview of Puerto Rican contributions to the United States, both in terms of military service and monetary revenue. A current and accurate image of Puerto Rico and its entwinement with the United States is necessary to examine the depth of hypocrisy that its current legal status creates. …

Constitutional Crimes, Michael L. Smith

Faculty Articles

Studies of criminal laws tend to focus on statutory, regulatory, and common law offenses. Discussions of constitutional law often revolve around abstract, concise statements, particularly those in, or which mirror, the Federal Constitution. In the interest of exploring new territory in both fields, this Article introduces and analyzes a family of crimes that has gone unanalyzed until now: criminal laws that appear in the text of the federal and state constitutions. As it turns out, there are a host of criminal laws contained in the federal and state constitutions, ranging from widespread crimes against treason, bribery, criminal contempt, and corrupt …

Constitutional Interpretation And Zombie Provisions, Michael L. Smith

Faculty Articles

The United States Constitution and state constitutions contain numerous zombie provisions, including language restricting marriage to relationships between one man and one woman, voter literacy test requirements, disqualification of atheists from serving in office or testifying as witnesses, and pervasive gendered language restricting rights and offices to men alone. Though these provisions are unenforceable due to subsequent amendment, determinations of federal unconstitutionality, or preemption by federal laws, they live on in constitutional text.

This Article addresses the danger of these zombie provisions that has, thus far, been overlooked the prospect that zombie provisions may influence the interpretation of still-living constitutional …

Brief Of Professor Derek T. Muller As Amicus Curiae In Support Of Neither Party, Heather Gebelin Hacker, Derek T. Muller

Court Briefs

No. 23-719
Donald J. Trump v. Norma Anderson

On Writ of Certiorari to the Supreme Court of Colorado

From the Summary of Argument

States hold the power to adjudicate the qualifications of presidential candidates. That power extends to the general election, even though the election is formally a process to appoint presidential electors. And that power extends to the primary election, even though state voters are formally selecting delegates to a party’s nominating convention. But states have no obligation to evaluate the qualifications of presidential candidates, and states may choose to permit openly unqualified presidential candidates to appear on the …