Constitutional Law Commons^™

United States V. Arthrex Inc.: Clarifying Appointments Clause Requirements For Administrative Judges, Albert Barkan

Duke Journal of Constitutional Law & Public Policy Sidebar

Article II of the United States Constitution details the methods by which presidential subordinate officers must be appointed. Despite its presence in the Constitution’s original text, the Appointments Clause remains ambiguous. The Clause provides different appointment processes for principal and “inferior officers,” but does not distinguish between these officers’ functions. In United States v. Arthrex, Inc., the Supreme Court must clarify the relationship between an Executive officer’s responsibilities and their appointment process.

Political Legitimacy On College Campuses, Taylor Holtman

Honors Projects

The government system is looked to have an influential impact on a person’s life and the ability to trust the legal system is extremely important to have a working democracy. Changes need to be made in order to make the minorities feel like they belong. The history of segregation and descrimigation needs to end and the government needs to enact policies to make the minorities trust again in the system. College students have felt the pressure of social media in the wrongful treatment of minorities and seeing these things happen first hand. With the rise of technology these problems will …

Fitbit Data And The Fourth Amendment: Why The Collection Of Data From A Fitbit Constitutes A Search And Should Require A Warrant In Light Of Carpenter V. United States, Alxis Rodis

William & Mary Bill of Rights Journal

No abstract provided.

Deepfakes: A New Content Category For A Digital Age, Anna Pesetski

William & Mary Bill of Rights Journal

Technology has advanced rapidly in recent years, greatly benefitting society. One such benefit is people’s ability to have quick and easy access to information through news and social media. A recent concern, however, is that manipulated media, otherwise known as “deepfakes,” are being released and passed off as truth. These videos are crafted with technology that allows the creator to carefully change details of the video’s subject to make him appear to do or say things that he never did. Deepfakes are often depictions of political candidates or leaders and have the potential to influence voter choice, thereby altering the …

The Pure-Hearted Abrams Case, Andres Yoder

William & Mary Bill of Rights Journal

One hundred years ago, Justice Oliver Wendell Holmes changed his mind about the right to free speech and wound up splitting the history of free speech law into two. In his dissent in Abrams v. United States, he called for the end of the old order—in which courts often ignored or rejected free speech claims—and set the stage for the current order—in which the right to free speech is of central constitutional importance. However, a century on, scholars have been unable to identify a specific reason for Holmes’s Abrams transformation, and have instead pointed to more diffuse influences. By …

Judging History: How Judicial Discretion In Applying Originalist Methodology Affects The Outcome Of Post-Heller Second Amendment Cases, Mark Anthony Frassetto

William & Mary Bill of Rights Journal

This Article aims to assess how the federal appellate courts have applied the originalist methodology in Second Amendment cases in the decade since Heller. It reviews how courts’ varying approaches to historical analysis—specifically, how courts have addressed what historical period to look to, how prevalent a historical tradition must be, and whether to address history at a high or low level of generality—can drastically affect the outcome of cases. As Justice Scalia acknowledged in McDonald, “Historical analysis can be difficult; it sometimes requires resolving threshold questions, and making nuanced judgments about which evidence to consult and how to …

Unduly Burdening Abortion Jurisprudence, Mark Strasser

William & Mary Bill of Rights Journal

The undue burden standard is the current test to determine whether abortion regulations pass constitutional muster. But the function, meaning, and application of that test have varied over time, which undercuts the test’s usefulness and the ability of legislatures to know which regulations pass constitutional muster. Even more confusing, the Court has refused to apply the test in light of its express terms, which cannot fail to yield surprising conclusions and undercut confidence in the Court. The Court must not only clarify what the test means and how it is to be used, but must also formulate that test so …

Who Will Save The Redheads? Towards An Anti-Bully Theory Of Judicial Review And Protection Of Democracy, Yaniv Roznai

William & Mary Bill of Rights Journal

Democracy is in crisis throughout the world. And courts play a key role within this process as a main target of populist leaders and in light of their ability to hinder administrative, legal, and constitutional changes. Focusing on the ability of courts to block constitutional changes, this Article analyzes the main tensions situated at the heart of democratic erosion processes around the world: the conflict between substantive and formal notions of democracy; a conflict between believers and nonbelievers that courts can save democracy; and the tension between strategic and legal considerations courts consider when they face pressure from political branches. …

Whither The Neutral Agency? Rethinking Bias In Regulatory Administration, Daniel B. Rodriguez

Buffalo Law Review

No abstract provided.

Manning, Powell, And The Habitual Misunderstanding Of Addiction, Matt Dean

St. John's Law Review

(Excerpt)

Bryan Manning, a homeless resident of Roanoke, Virginia, has been arrested and prosecuted more than thirty times for drinking or possessing alcohol. Although alcohol is generally legal in Virginia, Mr. Manning was forbidden for many years to “possess” it, “consume” it, or “purchase” it. On at least one occasion, police arrested him merely for “smelling like alcohol.” On another occasion, he was arrested because he happened to be shopping in a Walmart where alcoholic beverages were sold. For decades, Virginia law permitted a state circuit court to issue a civil order declaring an individual to be “an habitual drunkard” …

Why Liberalism Persists: The Neglected Life Of The Law In The Story Of Liberalism's Decline, Kenneth L. Townsend

St. John's Law Review

(Excerpt)

Liberalism is in decline in the West. Past political divides that pitted classically liberal conservatives against moderate to progressive political liberals are giving way to a new landscape in which a liberal consensus simply cannot be assumed. From the left, socialist and identity-based critiques of liberalism have called into question core liberal assumptions regarding procedural justice, the division between public and private realms, and the rights of individuals. From the right, an increasingly vocal group of conservatives is questioning classical liberalism’s commitment to limited government, a free market, and individual rights in favor of a vision of political community …

Robert Jackson's Critique Of Trump V. Hawaii, William R. Casto

St. John's Law Review

(Excerpt)

Over seventy years ago, United States Supreme Court Justice Robert H. Jackson accurately predicted the Supreme Court’s decision in Trump v. Hawaii. As he foresaw, the Court rubberstamped a President’s purposeful discrimination against a minority religion. This brief Essay explains Trump using Jackson’s critique of judicial review in national-security cases. The Essay also uses Trump to examine a flaw—probably structural—in the constitutional theory of process jurisprudence. The Trump case involved the Court’s construction of congressional legislation apparently limiting the President’s authority, but the present Essay does not address that aspect of the opinion.

Bye, Bye, Bilinguals: The Removal Of English- Spanish Bilinguals From The Criminal Jury And Latino Discrimination, Ashley Rich

Chicago-Kent Law Review

No abstract provided.

Let’S Go To The Beach: Gender Segregation As A Tool To Accommodate Religious Minorities, Sarah Gibbons

Chicago-Kent Law Review

No abstract provided.

Introduction To Reviving The American Jury, Nancy S. Marder

Chicago-Kent Law Review

No abstract provided.

From The Frontlines Of The Modern Movement To End Forced Arbitration And Restore Jury Rights, F. Paul Bland, Myriam Gilles, Tanuja Gupta

Chicago-Kent Law Review

No abstract provided.

How To Talk So Juries Will Listen, Janet Randall

Chicago-Kent Law Review

No abstract provided.

Unmuted: Solutions To Safeguard Constitutional Rights In Virtual Courtrooms And How Technology Can Expand Access To Quality Counsel And Transparency In The Criminal Justice System, Matthew Bender

Villanova Law Review (1956 - )

No abstract provided.

Unfriending Tinker : The Third Circuit Holds Schools Cannot Regulate Off-Campus Social Media Speech, Amanda N. Harding

Villanova Law Review (1956 - )

No abstract provided.

Intergenerational Environmental Justice And The Climate Crisis: Thinking With And Beyond The Charter, Dayna Scott, Garance Malivel

Articles & Book Chapters

Inspired by the analysis developed in the article “Coming of Age in a Warming World: The Charter’s Section 15 Equality Guarantee and Youth-Led Climate Litigation,” by Nathalie Chalifour, Jessica Earle, and Laura Macintyre, this commentary explores the concept of intergenerational environmental justice in the climate crisis. Our central contribution is to advance a relational conception of intergenerational environmental justice, which we argue can overcome some common objections to thinking about justice and rights in “generational” terms. This analysis supports climate litigation efforts on Charter grounds, best conceived in our view as discrimination against young and future generations. Yet it also …

Nondelegation Of Major Questions, Clinton T. Summers

Arkansas Law Review

The Supreme Court has many tools at its disposal to address improper delegations of legislative power by Congress to the executive branch. Two of these tools are the nondelegation doctrine and the major questions doctrine. The nondelegation doctrine is a sledgehammer. Able to declare entire statutory provisions unconstitutional, its ability to do a lot of damage is perhaps the reason the Court never uses it. Indeed, the Court has only used it twice, both times in 1935. Although it’s old and rusty, the Court continues to keep it in the toolbox just in case. Since 1935, the Court has been …

A Costly Victory: June Medical, Federal Abortion Legislation, And Section 5 Of The Fourteenth Amendment, Thomas J. Molony

Arkansas Law Review

The United States Supreme Court’s recent major abortion ruling in June Medical Services L.L.C. v. Russo was a win for abortion rights supporters, but a costly one. Although the June Medical Court struck down a Louisiana law requiring abortion doctors to have admitting privileges at a local hospital, a majority of the Justices—and most importantly, Chief Justice Roberts, whose concurrence constitutes the Court’s holding—stressed that Casey’s constitutional standard for pre-viability abortion regulations is not the amorphous balancing test the Court suggested in Whole Woman’s Health v. Hellerstedt, but a more deferential one under which a pre-viability regulation typically will be …

There’S A Pro-Abortion Rights Case To Be Made For Keeping The Hyde Amendment, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

April 22, 2021: The Pro-Choice Case For Retaining The Hyde Amendment--This Week's Pennsylvania Capital-Star Column, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Pro-Choice Case for Retaining the Hyde Amendment--This Week's Pennsylvania Capital-Star Column“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Brief Of Amicus Curiae Professors Elizabeth A. Clark, Robert F. Cochran, Jr., Carl H. Esbeck, David F. Forte, Richard W. Garnett, Christopher C. Lund, Michael W. Mcconnell, Michael P. Moreland, Robert J. Pushaw, And David A., Skeel, Supporting Petitioners, David Forte, Elizabeth A. Clark, Robert F. Cochran Jr., Carl H. Esbeck, Richard W. Garnett, Christopher C. Lund, Michael W. Mcconnell, Michael P. Moreland, Robert J. Pushaw, David A. Skeel

Law Faculty Briefs and Court Documents

The case concerns the "church autonomy doctrine" based on the Free Exercise Clause of the First Amendment, which declares that courts may not inquire into matters of church government or into disputes of faith and doctrine. Will McRaney was fired from a leadership position in the Southern Baptist Convention because of a conflict over policies relating to the expansion of the Baptist faith. He sued the Southern Baptist Convention in tort.

The district court dismissed the suit on the grounds of the church autonomy doctrine. The Fifth Circuit reversed the district court's dismissal as "premature," asserting that there were possible …

Special Solicitude: Religious Freedom At America’S Public Universities, William E. Thro

Office of Legal Counsel Academic Publications

Rejecting the Obama Administration’s argument that the First Amendment requires identical treatment for religious organizations and secular organizations, the Supreme Court held such a “result is hard to square with the text of the First Amendment itself, which gives special solicitude to the rights of religious organizations.” (Hosanna-Tabor, 565 U.S. at 189). This “special solicitude” guarantees religious freedom from the government in all aspects of society, but particularly on public university campuses. At a minimum, religious expression and religious organizations must have equal rights with secular expression and secular organizations. In some instances, religious expression and religious expression …

Counting Heads: The Decennial Census And Adjustments To Enumeration, Jay E. Town

Notre Dame Law Review Reflection

The 2020 Decennial Census has become a lightning rod for litigious civil rights organizations, state attorneys general, and even members of Congress. At stake is the apportionment of representatives in the House of Representatives and the Electoral College divided amongst the several states. Furthermore, the “headcount” determines the allotment of $1.5 trillion in nondiscretionary federal dollars to be distributed to the various states based on the persons who are counted in each. The headcount is also used in redistricting of congressional districts. Make no mistake, litigation surrounds the manner in which the census arrives at its headcount after every census. …

Re-Imprisonment Without A Jury Trial: Supervised Release And The Problem Of Second-Class Status, Stephen A. Simon

Cleveland State Law Review

The Supreme Court’s 2019 decision in United States v. Haymond shone a light on a practice that has not yet received attention commensurate with its significance: the re-imprisonment of individuals on supervised release without a jury trial. At first blush, the decision is most notable for setting bounds on the government’s ability to re-imprison individuals on supervised release without observing the constitutional rights normally available to defendants in criminal prosecutions. However, examination of the opinions reveals that the decision’s immediate doctrinal impact was quite limited. Moreover, although the three opinions issued in the case reflected disagreements among the Justices, all …

International Decision Commentary: Houngue Éric Noudehouenou V. Republic Of Benin, Olabisi D. Akinkugbe

Articles, Book Chapters, & Popular Press

The judgment in Houngue Éric Noudehouenou v. Republic of Benin adds to the growing body of human rights jurisprudence on national electoral processes in Africa’s international courts. The decision demonstrates the growing importance of Africa’s regional and sub-regional courts as an alternative venue for opposition politicians, activists, and citizens to mobilize and challenge election processes and constitutional amendment processes where the playing field in their state is uneven. In turn, it reinforces the pivotal role of the regional and sub-regional courts in consolidating democratic governance in Africa, and reveals the limits of assessing the performance of Africa’s international courts solely …

Untested And Neglected: Clarifying The Comparator Requirement In Equal Protection Claims Based On Untested Rape Kits, Emily Jones

Northwestern University Law Review

Rape kits are important tools used to store the evidence that is collected from a victim’s body and clothing following a sexual assault. Although the DNA evidence stored in rape kits is crucial to rape investigations, police departments throughout the country have routinely failed to test rape kits. This remains true despite the national funding allocated specifically for rape kit testing. This widespread neglect hinders justice and renders community members unprotected from sexual violence. The national rape kit backlog has sparked legal challenges; six lawsuits have been filed against police departments for systematically refusing to test rape kits, alleging equal …