Constitutional Law Commons^™

Constitutional Revolution: A Path Towards Equitable Representation, Chris Chambers Goodman

Maryland Law Review

No abstract provided.

Persuasion About/Without International Law: The Case Of Cybersecurity Norms, Steven R. Ratner

Book Chapters

International law on cybersecurity is characterized by at best a thin consensus on the existence of rules, their meaning, and the desirability and content of new rules. This legal landscape results in a unique pattern of argumentation and persuasion by states and non-state actors both in advocating for a regulatory scheme for cyber activity and in reacting to malicious cyber acts. By examining argumentation in the absence of a generally agreed legal framework, this chapter seeks to provide new insights into the motivations for and effects of international legal argumentation in shaping debates and behavior. After describing the legal landscape …

Cases And Materials On West Virginia Constitutional Law, Robert M. Bastress Jr.

Open Access Law Books

No abstract provided.

Foreword, Richelle Joy Gernan, Cecilia Salem

UC Law Constitutional Quarterly

No abstract provided.

Against Equality: A Critical Essay For The Naacp And Others, Richard Delgado, Jean Stefancic

UC Law Constitutional Quarterly

We address a recurring problem in movement scholarship and activism: why do some civil rights organizations persist in promoting themselves as advocates of equal protection when street activists rarely mention it, and lawyers know that litigation brought under that clause almost always loses? Try to recall the last time you heard of a street protest by a group—say Mexican-American school children in Tucson, Arizona, Black victims of police violence, or military women subjected to sexual harassment— proceeding under the banner of equal protection. Or think when you last read of a lawyer who brought and won a case for a …

A Push For An Egalitarian Constitution, Richelle Joy Gernan

UC Law Constitutional Quarterly

No abstract provided.

American Imperialism In Hawai’I: How The United States Illegally Usurped A Sovereign Nation And Got Away With It, Noelani Nasser

UC Law Constitutional Quarterly

In 1778, England’s Captain Cook first landed on the Hawaiian Islands. Since then, the Native Hawaiians have struggled to maintain their indigenous identity as distinct from the outside world and indigenous to Hawai’i. In the one thousand years preceding this early invasion, Native Hawaiians established unique political structures and cultural identities that were not present in England or the newly independent United States. Following the United States’ overthrow of the Hawaiian monarchy in 1893, the United States quickly enacted legislation that severely impacted the Native Hawaiians. This paper will discuss historical events in Hawai’i from 1778 to the twenty-first century …

Canada’S Amendment Rules: A Window Into The Soul Of A Constitution - Review Essay Of Richard Albert, Constitutional Amendments: Making, Breaking, And Changing Constitutions, Jamie Cameron

Articles & Book Chapters

This Review Essay forms part of a special issue of the Manitoba Law Journal (forthcoming) dedicated to Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions. Years in the making, Constitutional Amendments explains how amendment rules define a constitution’s integrity, ensuring its longevity by allowing and even inviting formal changes to its text. Albert’s work is prodigious and monumental, connecting abstract issues of textual design to the follies of constitutional amendment over diverse variables of time and place. This Review focuses selectively on Constitutional Amendments and its implications for Canadian amendment constitutionalism, exploring Albert’s view that amendment rules expose …

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn't Such An Outlier On Free Speech, Evelyn Aswad

Faculty Articles

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …

Behind Bartkus: A Flamboyant Lawyer, A Vindictive Judge, And The Untold Story Of Double Jeopardy’S Dual Sovereignty, Stephen E. Henderson, Dean Strang

Faculty Articles

A young defense attorney earns his client, charged in federal court with bank robbery, a jury acquittal. (It’s the attorney’s first.) One would expect the impartial judge to thank the jury for its service. Instead, this one harangues both jury and defense attorney (“entailing changes in his complexion from red to purple to dead white”), publicly rails against the verdict, attempts to bar the jurors from future service, refuses to release the defendant, and successfully prods prosecutors to bring a duplicative state prosecution that would end in conviction for the same crime. To anyone who respects the rule of law—or …

Brain-Computer-Interfacing & Respondeat Superior: Algorithmic Decisions, Manipulation, And Accountability In Armed Conflict, Salahudin Ali

Catholic University Journal of Law and Technology

This article examines the impact that brain-computer-interfacing platforms will have on the international law of armed conflict’s respondeat superior legal regime. Major Ali argues that the connection between the human brain and this nascent technology’s underlying technology of artificial intelligence and machine learning will serve as a disruptor to the traditional mental prerequisites required to impart culpability and liability on commanders for actions of their troops. Anticipating that BCI will become increasingly ubiquitous, Major Ali’s article offers frameworks for solution to BCI’s disruptive potential to the internal law of armed conflict.

From Banned Books To Mail Censorship, Free Speech All But Ends At The Prison Doors, Meghan Holden

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Evolution Of Legal Topics, Rights And Obligations In The United States, Roberto Rosas

Faculty Articles

What new constitutional rights does the American Legal system have to offer? The United States Constitution is a document that continues to be interpreted every year. The Supreme Court hears recent cases with the purpose of interpreting the meaning of the Constitution. Since the creation of the Supreme Court, the Constitution has been analyzed in different ways – some interpretations lasting decades and some amendments going through changes depending on the different ideologies of the Justices on the Court.

This article discusses some of the rights established by the Supreme Court from 2016 to 2019 and provides the background as …

Reconstructing The Voting Rights Act: Subnational Action And Voting Rights Post-1965, Sean M. Holly

Honors Theses

The discussion of suffrage and the development of the U.S. electorate is misguidedly based solely around federal action; constitutional amendments and federal legislation are commonly revered as primary determinants of the right to vote. This tendency poses a specific problem with contemporary discussions of the Voting Rights Act of 1965. Specifically, discussions of the VRA ignores the ability of subnational actors to innovate politically and readjust their vehicles of political development in the wake of federal supposition of state powers. The Voting Rights Act did not destroy state authority regarding the right to vote; it merely disrupted their vehicles of …

National Legal Paradigms For Public Health Emergency Responses, James G. Hodge Jr.

American University Law Review

The COVID-19 pandemic has exposed significant weaknesses of the U.S. federalist system in controlling major infectious disease threats. At the root of American failures to adequately respond is a battle over public health primacy in emergency preparedness and response. Which level of government—federal or state—should actually “call the shots” to quell national emergencies? Constitutional principles of cooperative federalism suggest both levels of government are responsible. Yet real-time applications of these principles, coupled with dubious national leadership, contributed to horrific public health outcomes across America. No one seeks a repeat performance of U.S. COVID-19 response efforts to forthcoming major health threats. …

When Thoughts And Prayers Are Not Enough: Why Age-Based Restrictions On Purchasing Firearms Pass Constitutional Muster, Madeline P. Fuller

American University Law Review

After the tragic shooting at Marjory Stoneman Douglas High School that took the lives of seventeen students and staff members and injured countless others, the community debated how this event could have been prevented. There were security failures on the part of the school and police—unlocked doors, passive deputies and a security guard, and a broken PA system—all of which may have lessened the casualties had they been operating properly. However, these security measures might not have been tested and found lacking if another preventative measure had already taken place: prohibiting the young shooter from legally purchasing a weapon.

Florida …

Foreword, Seattle University Law Review

Seattle University Law Review

Foreword.

The Deans' Roundtable, Dean Angela Onwuachi-Willig, Dean Danielle Conway, Dean Tamara Lawson, Dean Mario Barnes, Dean L. Song Richardson

Seattle University Law Review

The Deans' Roundtable.

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents.

Vaccination And The Child’S Right To An Open Future, Elias Feldman

Lewis & Clark Law Review

States commonly require the vaccination of children through their parens pa- triae and police powers. But many states also allow parents to opt for non- medical exemptions from these vaccination requirements, contributing to the emergence of a national vaccine hesitancy crisis. By permitting parents not to vaccinate their children, do states that grant these exemptions violate children’s rights? This Article posits that children may indeed have a right to be vac- cinated and thus protected against contracting a disease for which there is a scientifically proven vaccine. This Article examines this question through the lens of Joel Feinberg’s theory of …

The Structure Of Intermediate Review, R. Randall Kelso

Lewis & Clark Law Review

Today, there are two well-established versions of intermediate review: stand- ard intermediate review, used for cases like gender discrimination or content-neutral regulations of speech in a public forum, and a heightened intermediate review standard used for content-based, subject-matter regulations of commercial speech under Central Hudson. Yet, in actual use, four other kinds of intermediate review tests have been formulated by the Court in some cases. These four should be viewed as “mutations” of the two kinds of intermediate review proper to apply. This Article discusses both the well-established versions of intermediate review, and the four variations on intermediate review applied …

Menstruation And The Bar Exam: Unconstitutional Tampon Bans, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

Some states have policies that prevent bar exam candidates from bringing their own menstrual products to the test. Via social media, awareness of these policies achieved new heights in the weeks leading up to the July 2020 bar exam. While states adopted different approaches to administering the bar exam during the COVID-19 pandemic, a small number of jurisdictions responded to public criticism by permitting test-takers to bring menstrual products with them to exams. Not all states have adopted permissive policies, however. This essay explains why outright bans on menstrual products at the bar exam likely are unconstitutional. So-called alternate policies, …

Compared To What? Menstruation, Pregnancy, And The Complexities Of Comparison, Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

When crafting a sex discrimination argument, finding the right comparison can be crucial. Indeed, comparison-drawing has been a key strategy for advocates challenging the constitutionality of the tampon tax. In their 2016 lawsuit challenging New York’s tampon tax, the plaintiffs alleged that the New York State Department of Taxation and Finance had imposed a “double standard” when deciding which products would be considered tax-free medical items and which would not. Similar arguments were made in the subsequent challenge to Florida's tampon tax. In both cases, the arguments had powerful rhetorical force, helping to effectuate legislative repeal of the tampon taxes …

The Constitutional Tort System, Noah Smith-Drelich

Indiana Law Journal

Constitutional torts—private lawsuits for constitutional wrongdoing—are the primary means by which violations of the U.S. Constitution are vindicated and deterred. Through damage awards, and occasionally injunctive relief, victims of constitutional violations discourage future misconduct while obtaining redress. However, the collection of laws that governs these actions is a complete muddle, lacking any sort of coherent structure or unifying theory. The result is too much and too little constitutional litigation, generating calls for reform from across the political spectrum along with reverberations that reach from Standing Rock to Flint to Ferguson.

This Article constructs a framework of the constitutional tort system, …

Why Illinois Should Reevaluate Its Video Tolling (V-Toll) Subsidy, Randall K. Johnson

Faculty Works

Tolls are levies with a limited base. This base is made up of drivers that pay user fees, in cash or via electronic transponder, in exchange for access to state-administered roads. In Illinois, every single toll is a function of three factors: vehicle characteristics, tollway entry point, and how far a driver goes on state-administered roads.

It is commonly assumed that any toll violation, i.e., any failure to pay, results in a traffic ticket, administrative fees and state-imposed sanctions. Such an assumption, however, is only partly true due to overly forgiving Illinois state policies. Examples include the Traffic Ticket Exemption, …

Foreword: A Century Since Suffrage: How Did We Get Here? Where Will We Go? How Will We Get There?, Rona Kaufman

Law Faculty Publications

One hundred years have passed since (white) women attained the right to vote. In the century since the Nineteenth Amendment was ratified, American women have transitioned from an existence as mere objects of history to becoming active subjects of history. In 2019 and 2020, many programs and conferences were organized to celebrate the achievements of America's women and commemorate the 100th anniversary of women's suffrage. The Section on Women in Legal Education hosted a program at the January 2020 American Association of Law Schools (AALS) Annual Meeting titled, “A Century Since Suffrage: How Did We Get Here? Where Will We …

Constitutional Skepticism And Local Facts, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Are written constitutions evil? In his new book, Constitutional Idolatry and Democracy, Brian Christoper Jones argues that they are. He claims that written constitutions fail to unite societies, degrade democratic engagement, and obstruct necessary constitutional maintenance. This review of his book argues that he is mostly right about the effects of the American Constitution, but that the effects of other constitutions will vary depending upon local facts.

A Tale Of Two Formalisms: How Law And Economics Mirrors Originalism And Textualism, Neil H. Buchanan, Michael C. Dorf

UF Law Faculty Publications

Two leading schools of thought among U.S. conservative legal elites — Law and Economics (L&E) and Originalism and Textualism (O&T) — both purport to use their formalist structures to guide analysis in ways that are objective, substantially determinate, and apolitical. Because they rest on very different theoretical underpinnings, L&E and O&T should only randomly reach similar policy or legal conclusions. After all, L&E implements neoclassical economics, a theory of utility maximization, whereas O&T is a theory of semantics. Yet as practiced, L&E and O&T rarely result in conflict. What explains the missing intra-conservative clash? Despite their respective pretenses to objectivity, …

Long Overdue: Fifth Amendment Protection For Corporate Officers, Tracey Maclin

UF Law Faculty Publications

The Supreme Court has extended to corporations many of the same constitutional rights that were originally intended to protect people. One notable exception, however, is the Fifth Amendment’s prohibition on compulsory self-incrimination. “Corporations may not take the Fifth.” There is a long line of cases dating back to the start of the twentieth century stating – but never directly holding – that corporations are not protected by the self-incrimination clause. But the fact that a corporation cannot invoke the Fifth does not explain why a person who works for a corporation cannot. As a matter of text, the Fifth Amendment …

Scrutiny-Determination Avoidance In First Amendment Cases: Laudable Minimalism Or Condemnable Evasion?, Clay Calvert

UF Law Faculty Publications

This Article examines the United States Supreme Court’s practice in First Amendment cases of not resolving the precise level of scrutiny that applies to measure a statute’s validity. Rather than opting for one of two tiers of scrutiny — one more rigorous than the other—the Court sometimes dodges the issue. It does this by concluding that a statute would not pass muster under the more lenient standard, thereby rendering it unnecessary to decide which test was, in fact, more appropriate. The Court thus adopts an “assuming-without-deciding” logic in such cases, simply supposing the lesser standard applies without definitively holding as …