Constitutional Law Commons^™

Invoke Your Right To Remain Silent After You Confess: Self-Reporting Regulations And Potential Conflicts With International Law Prohibiting Compulsory Self-Incrimination, Patrick Testa

Georgia Journal of International & Comparative Law

No abstract provided.

Bird's-Eye View: A Comparative Examination Of Drone Regulation Through The Lens Of Privacy Protection, Allison Mcgregor

Georgia Journal of International & Comparative Law

No abstract provided.

Catalytic Courts And Enforcement Of Constitutional Education Funding Provisions, Hugh Spitzer, Andy Omara

Georgia Journal of International & Comparative Law

It is well-recognized that it is easier for judges to enforce constitutional “negative rights” provisions than positive social and economic rights. This article focuses on the challenges of enforcing one specific positive right: the constitutional right of children to attend adequately funded schools. Our article tests on-the-ground judicial implementation of education funding provisions against the general theoretical framework of judicial interaction with the political branches developed by Katharine Young. We analyze how, in multi-year, multi-decision litigation, constitutional court judges in the three jurisdictions we studied actively experimented with the challenging task of forcing, or enticing, reluctant legislative and executive branches …

Moral Truth And Constitutional Conservatism, Gerard V. Bradley

Louisiana Law Review

Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a mélange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage. The reason for the methodological moral reticence is easy to …

Does Justice Have A Syntax?, Steven L. Winter

Law Faculty Research Publications

No abstract provided.

Climate Change, Competition & Conflict Along The River Nile: The Great Ethiopian Renaissance Dam & Shifting Customary International Water Law, Salma Shitia

Fordham Environmental Law Review

Decade-long negotiations between the Arab Republic of Egypt and the Federal Democratic Republic of Ethiopia surround the decision to build the hydroelectric power plant along the River Nile. For much of Ethiopia, the Grand Ethiopian Renaissance Dam represents a beacon of prosperity. For countless Egyptians, the structure embodies a potential catastrophe. Grounded in threats of displacement for Egyptian agricultural communities, some have compared the Grand Ethiopian Renaissance Dam crisis to disasters culminating in mass migration.

This battle for natural resource access has intensified as climate change exacerbates the region’s dire conditions. Specifically, exhaustible resource allocation amid climate change indicates that …

A Paper Tiger? Prosecutorial Regulators In China’S Civil Environmental Public Interest Litigations, Chunyan Ding, Huina Xiao

Fordham Environmental Law Review

In July 2015, China’s national legislature brought in prosecutor-led civil environmental public interest litigation (“EPIL”) for thirteen selected provincial areas of the country. After a two-year legal experiment, this prosecutor-led civil EPIL system was then established nationwide in July 2017. Yet, can it be said that prosecutorial regulators in China are in fact a paper tiger? Drawing upon content analysis of the 655 prosecutor-led civil EPILs and in-depth interviews with twelve frontline prosecutors and judges, this article examines the dynamics of regulatory practice and the motivation of the Chinese prosecutorial organs to engage in environmental regulation through litigation. Based upon …

The Yoga Analogy: Scaling-Up The U.S.’S Renewable Energy Sector Mindfully With New Technologies, Evolving Standards, Public Buy-In, Data Sharing, And Innovation Clusters, Kimberly E. Diamond

Fordham Environmental Law Review

This paper focuses on innovative renewable energy devices, exploring how scientifically-based industry standards that continuously evolve with engineering design technology, the public’s buy-in and feeling of connectedness with groundbreaking devices, and innovation clusters that accelerate device development through data sharing and public-private partnerships can all help advance the U.S.’s domestic renewable energy industry.

Part I analyzes challenges inherent to scaling- up novel renewable energy technologies while simultaneously developing the industry standards regulating them. Part II uses the Block Island Wind Farm, an offshore wind demonstration project, and Pavegen’s globally-deployed arrays of piezoelectric smart flooring tiles as examples illustrating the importance …

How Far Will Fara Go? The Foreign Agents Registration Act And The Criminalization Of Global Human Rights Advocacy, Monica Romero

Washington Law Review

The Foreign Agents Registration Act (FARA) was enacted and enforced during World War II to protect the American public from foreign propaganda, especially from the Nazi party. Following the war, FARA was scarcely used for over half a century. But in the past five years, there has been a significant uptick in FARA enforcement, particularly against major political personalities. The revival of FARA has led many legislators and scholars to advocate for expansions of FARA’s scope and enforcement mechanisms in the name of national security. But most have failed to acknowledge the risk and likelihood of politicized enforcement. The United …

Environmental Racism: Using Environmental Planning To Lift People Out Of Poverty, And Re-Shape The Effects Of Climate Change & Pollution In Communities Of Color,, William C.C. Kemp-Neal

Fordham Environmental Law Review

In the mid-1900s the United States began to see a rise in concern for environmental awareness issues. In the early days the movement focused on things like clean air, water and pollution but by the 1970s-1990s many prominent environmental awareness groups began to form focused on the idea that in order to avert climate change the principal goal needed to be to reduce global greenhouse gas emissions. In 1987 a report was released called Toxic Waste and Race, which outlined an intimate link between the placement of environmental hazardous waste sites in communities of color, and greater instances of polluted …

Beyond Equity: Shared Natural Resources And Human Rights, Criminal Law, And The Use Of Force, Eian Katz

Fordham Environmental Law Review

Transboundary resource disputes are often analyzed by reference to two nebulous and conflicting principles that have emerged in international environmental law: “equitable and reasonable utilization” and “no significant harm.” Frequently overlooked in this context is the potential value of other canons of international law—especially human rights law, criminal law, and the rules governing the use of force—in adding definition to the muddled contours of these foundational precepts. This Article therefore undertakes an assessment of sovereign rights and obligations regarding shared natural resources which arise from these other bodies of law. In doing so, it offers new lenses through which to …

Squaring The Cercla: Superfund And The Superfund Task Force, Manny Marcos

Fordham Environmental Law Review

The Superfund Task Force recently released its final report on the implementation of its recommendations for improving the Superfund program. The Task Force was given five goals for improving the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (“CERCLA’s”), implementation. These goals are to expedite cleanup and remediation, re-invigorate responsible party cleanup and reuse, encourage foreign investment, promote redevelopment and community revitalization, and engage with partners and stakeholders. While the Task Force’s recommendations have improved CERCLA’s implementation, many of CERCLA’s structural flaws remain intact. Specifically, CERCLA still has a severe shortage of funding, an unfair liability scheme, perverse incentives, …

(Re)Framing Race In Civil Rights Lawyering, Anthony V. Alfieri, Angela Onwuachi-Willig

Articles

This Review examines the significance of Henry Louis Gates, Jr.'s new book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow, for the study of racism in our nation's legal system and for the regulation of race in the legal profession, especially in the everyday labor of civil-rights and poverty lawyers, prosecutors, and public defenders. Surprisingly, few have explored the relevance of the racial narratives distilled by Gates in Stony the Roa - the images, stereotypes, and tropes that Whites constructed of Blacks to deepen and ensure the life and legacy of white supremacy-to the practice …

Marriage Or License To Rape? A Socio-Legal Analysis Of Marital Rape In India, Vidhik Kumar

Dignity: A Journal of Analysis of Exploitation and Violence

Rape exposes the failure of society’s institutions which were established to provide better security to an individual in a society. These institutions sometimes not only failed to protect an individual from such grave assaults on their autonomy and privacy, but also sanctioned them by either providing them legitimacy by law or not illegitimating them. States often have either provided legal sanctity to rapes within marriage or have refrained from declaring it a crime, on account of it being a private sphere not open to interference. Rape within marriage or marital rape is a global problem, and it is argued that …

'Who' Or 'What' Is The Rule Of Law?, Steven L. Winter

Law Faculty Research Publications

The standard account of the relation between democracy and the rule of law focuses on law’s liberty-enhancing role in constraining official action. This is a faint echo of the complex, constitutive relation between the two. The Greeks used one word – isonomia – to describe both. If democracy is the system in which people have an equal say in determining the rules that govern social life, then the rule of law is simultaneously before, after, concurrent and synonymous with democracy: It contributes to the formation of citizens with the capacity for self-governance, serves as the instrument through which democratic decisions …

The Era Brief June 2021, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

At the ERA Project we get asked all the time: “Why do we need the Equal Rights Amendment (ERA)?” “Doesn’t the Constitution already prohibit sex discrimination?” “What difference would it make to add explicit sex discrimination protections in the Constitution as the 28th Amendment?”

Religion's Ascension To A Top-Tier Right During Covid: New Report Unpacks The Supreme Court’S Recent Religious Liberty Cases, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

A new report released by The Law, Rights, and Religion Project (LRRP) at Columbia Law School — We The People (of Faith): The Supremacy of Religious Rights in the Shadow of a Pandemic — shows how the Supreme Court’s COVID-era opinions have created a hierarchy of constitutional rights, with religious rights at the top. This legal regime will have a resounding impact on U.S. law, affecting policymakers’ ability to protect public health, prevent discrimination, and secure labor rights long after the current COVID-19 crisis has abated.

In Fulton Decision, Scotus Solidifies Expansion Of Religious Exercise Rights, Law, Rights, And Religion Project

Center for Gender & Sexuality Law

On June 17, 2021, the Supreme Court solidified a dramatic shift in its reading of the constitutional protections for religious liberty. The Court ruled that religious organizations that contract with local governments to provide foster care services should be exempted from compliance with city non-discrimination requirements if the city permits any discretionary exemptions from those laws.

“More Than Tangential”: When Does The Public Have A Right To Access Judicial Records?, Jordan Elias

Journal of Law and Policy

 Public accountability requires open proceedings and access to documents filed with the courts. The strong policy favoring access to judicial records creates a presumption against sealing documents without a compelling reason.  The Ninth Circuit Court of Appeals recently held that this presumption of access arises when a proceeding relates “more than tangentially” to the merits. This is a low standard under which many types of motions qualify for the compelling reasons test.  With too much litigation occurring in secret, courts can use the “more than tangential” standard proactively to keep electronic case dockets available to citizens.

Medicate And Segregate: How Due Process Fails To Protect Mentally Ill Inmates From Medically Inappropriate Confinement And Restraint, Peter J. Teravskis

Minnesota Journal of Law, Science & Technology

No abstract provided.

Freedom From Thirst: A Right To Basic Household Water, Martha F. Davis

Cardozo Law Review

No abstract provided.

The Case For Environmental Human Rights: Recognition, Implementation, And Outcomes, James R. May

Cardozo Law Review

No abstract provided.

Rétrospectives Et Perspectives Sur La Place Du Droit Comparé Dans La Jurisprudence Du Conseil Constitutionnel, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

May 31, 2021: The Hallowed Secular Talmud, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Hallowed Secular Talmud“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Federalist Society And Constitutional Interpretation: Who Gets To Say What The Constitution Says, Deborah L. Toscano

LSU New Orleans Theses and Dissertations

The Federalist Society was organized in 1982 by conservative law students to counteract what they perceived to be a liberal bias in law schools, the courts, and government administration. Forty years later there is an acknowledgement of a rightward turn in the Supreme Court which scholars have attributed in part to the efforts of the Federalist Society. However, there is still little understanding of just how that change came about. This dissertation takes a step toward understanding that question. Viewing the Federalist Society as the center of a network of lawyers, think tanks, and legal institutions, I examine the influence …

Victim Impact: The Manson Murders And The Rise Of The Victims’ Rights Movement, Merrill W. Steeg

LSU New Orleans Theses and Dissertations

No abstract provided.

Equal Injustice For All: High Quality Self-Representation Does Not Ensure A Matter Is “Fairly Heard”, Jona Goldschmidt

Seattle University Law Review Online

Self-represented litigants (SRLs) are generally less successful in court than parties with legal representation. Some access-to-justice programs view self-representation as a skill that can be taught and will lead to more success in case outcomes, but Jona Goldschmidt pushes back against this assumption. Goldschmidt argues that even high functioning, educated, and computer savvy SRLs are at a disadvantage in the courtroom when courts strictly enforce rules and do not offer reasonable accommodations.

In this Article, Goldschmidt evaluates three cases that illustrate expert SRLs’ challenges in the courtroom, and he argues that ridged rule enforcement and failure to accommodate lead to …

Preclearance And Politics: The Future Of The Voting Rights Act, Paige E. Richardson

University of Cincinnati Law Review

No abstract provided.

Tainted From Their Roots: The Fundamental Unfairness Of Depriving Foreign Nationals Of Counsel In Immigration Court, Jehanzeb Khan

University of Cincinnati Law Review

No abstract provided.

The Right To Remain Silent: First Amendment Rights Of Physicians In States With Narrated Ultrasound Laws, Sabrina Jemail

University of Cincinnati Law Review

No abstract provided.