Constitutional Law Commons^™

The Prodigal Son Comes Home: Ecuador Returns To Investment Arbitration, Gilberto Guerrero-Rocca

Faculty Publications

No abstract provided.

Pub. L. No. 86-272 And The Anti-Commandeering Doctrine: Is This Anachronism Constitutionally Vulnerable After Murphy V. Ncaa?, Matthew A. Melone

Michigan Business & Entrepreneurial Law Review

State taxing authority suffers from little of the structural impediments that the Constitution imposes on the federal government’s taxing power but the states’ power to tax is subject to the restrictions imposed on the exercise of any state action by the Constitution. The most significant obstacles to the states’ assertion of their taxing authority have been the Due Process Clause and the Commerce Clause. The Due Process Clause concerns itself with fairness while the Commerce Clause concerns itself with a functioning national economy. Although the two restrictions have different objectives, for quite some time both restrictions shared one attribute—a taxpayer …

Examining Death Penalty Ballot Measures: A Review Of Austin Sarat’S The Death Penalty On The Ballot, Michael Conklin

Seattle Journal for Social Justice

No abstract provided.

Assault On The Constitution: Why The Southern District Of California Got It Right, Robert F. Brawner Ii

Georgia State University Law Review

This Note will examine and analyze the tests applied by federal courts that have heard similar cases, culminating with the recent decision in the Southern District of California, Duncan v. Becerra. In Part I, this Note provides the context surrounding the current bill being considered by Congress and examines Supreme Court and federal circuit court cases addressing this issue. Part II provides analysis of application of the tests applied by the federal courts. Part III argues that the Supreme Court should adopt Judge Benitez’s reasoning laid out in Duncan and apply his test to any Second Amendment challenge to …

The Thirteenth Amendment And Human Trafficking: Lessons & Limitations, Kathleen Kim

Georgia State University Law Review

Part I of this Article contextualizes human trafficking within the doctrinal development of the Thirteenth Amendment and Section Two legislation enacted to address subsequent forms of unfree labor. This part describes the origins of a race-conscious Thirteenth Amendment framework and explains its relevance in guiding antitrafficking policy. The overwhelming focus of antitrafficking efforts on sexual exploitation strains the normative foundation of the Thirteenth Amendment. Part II examines the TVPA and the California Trafficking Victims Protection Act and identifies their most significant contributions to Thirteenth Amendment doctrine. Yet, this part finds that the absence of a Thirteenth Amendment framework to guide …

Ascriptive Nationalism, Demagoguery, And The Modern Presidency: A Case Study In Constitutional Decay, Christopher J. Putney

Dissertations, Theses, and Capstone Projects

This study is an account of the modern presidency as a source––and under Donald Trump, an accelerant––of systemic problems in American politics. Against the prevailing scholarly view of the Trump presidency as an unqualified aberration, I argue that the signal features of his efforts at governance are actually the product of converging patterns of political and institutional order. Building on seminal (but previously disjointed) work on ascriptive Americanism and the rhetorical presidency, I show that Trump represents the political synthesis of America’s ascriptive tradition and a form of presidential leadership inaugurated more than a century ago by Woodrow Wilson. Moreover, …

Themes From Fallon On Constitutional Theory, Lawrence B. Solum

Faculty Scholarship

Law and Legitimacy in the Supreme Court by Professor Richard Fallon explores the relationship between normative legitimacy and the Supreme Court’s role in constitutional interpretation and construction. This essay interrogates Fallon’s ideas in the context of the great debate between originalism and living constitutionalism via the development of the themes. The first theme focuses on the relationship between Fallon’s views and the originalist claim that constitutional interpretation and construction should be constrained by the original public meaning of the constitutional text. The second theme focuses on Fallon’s development of the idea of reflective equilibrium as a method for constitutional theory …

When A Picture Is Not Worth A Thousand Words: Why Emojis Should Not Satisfy The Statute Of Frauds' Writing Requirement, Moshe Berliner

Cardozo Law Review

No abstract provided.

Ktunaxa Nation V. British Columbia: A Historical And Critical Analysis Of Canadian Aboriginal Law, Jennifer Mendoza

Washington International Law Journal

Aboriginal law is a developing and emerging area of the law in Canada. In fact, Aboriginal rights were not constitutionally protected until the ratification of the Canadian Constitution in 1982. What followed was a series of precedent-setting cases that clarified what “rights” meant under Section 35 of the Constitution, how Aboriginal title and rights could be established, and what duty the federal government had to the First Nations when trying to infringe on those rights. In 2017, the Canadian Supreme Court heard Ktunaxa Nation v. British Columbia, which was the first case to interpret Aboriginal rights under Section 2(a) religious …

Covid-19 And American Democracy, Barry Sullivan

Faculty Publications & Other Works

This article discusses the response of the United States Government to the COVID-19 Pandemic from January through June 19, 2020.In particular, the article focuses on the constitutional and legal background of that response. The article was prepared for a symposium in the Italian journal Il diritti dell'economia on responses to the COVID-19 pandemic by governments around the world.

Beat The Heat: Texas’S Need To Reduce Summer Temperatures In Offender Housing, Mary E. Adair

St. Mary's Law Journal

The Texas Department of Criminal Justice’s lack of air conditioning in offender housing areas is a violation of the Eighth Amendment and deprives offenders of humane living conditions. Unlike most Texans, offenders housed in the TDCJ are unable to adequately protect themselves from the higher, prolonged summer temperatures. Most Texas prisons do not provide air conditioning or other types of cooling systems in offender housing areas, so offenders are at the mercy of the elements with little protection against heat-related illnesses. Several jurisdictions, other than Texas, have recognized extreme temperatures in housing areas can lead to constitutional violations because the …

The Guinea-Bissau Constitutional Reform Debate, Watson Aila Gomes

Dissertations, Theses, and Capstone Projects

The enactment of law is not to be confused with the rule of law, and simply having a constitution does not guarantee political order. In Guinea-Bissau there have been calls to write a new constitution, but whether that helps Guinea-Bissau become a more stable country is questionable. Currently, there is a gap in the research of social science, history and political science examining how the processes of instability have unfolded in Guinea-Bissau. Few studies attempt to examine the correlation between a country’s stability and its constitution. A paradoxical situation exists in many countries in Africa where the political system is …

Lessons From A Journey Through State Subnational Constitutional Law, James A. Gardner

Journal Articles

No abstract provided.

Constitutionalism And Africa's Agenda 2063: How To Build "The Africa We Want", John Mukum Mbaku

Brooklyn Journal of International Law

In 2013, Africans, under the leadership of the African Union, set out to develop a “strategic framework for the socio-economic transformation of the continent over the next 50 years.” This new development program was expected to “accelerate the implementation of past and existing continental initiatives for growth and sustainable development.” This transformative program, called Agenda 2063: The Africa We Want, was officially adopted by the Assembly of Heads of State and Government of the African Union in Addis Ababa, Ethiopia in January 2015. The heart of this ambitious development initiative are seven aspirations, which Africans hope to achieve by the …

Kosovo's Controversial 100 Percent Tariff: An Analysis Of Its Imposition And The Issues Bleeding Into The Conflict Between Kosovo And Serbia, Ernira Mehmetaj

Brooklyn Journal of International Law

On November 6, 2018, Kosovo imposed a 10 percent tariff on products imported from Serbia and Bosnia and Herzegovina. Later that month, on November 28, 2018, after Kosovo was denied membership in the International Criminal Police Organization, Kosovo increased the custom tariffs on Serbian and Bosnian goods from 10 to 100 percent. These actions resulted in a standstill of the European Union–mandated Belgrade-Pristina dialogue—a dialogue seeking to normalize the relations between the two states. Having the tumultuous history shared by Kosovo and Serbia as a backdrop, this Note analyzes the international agreements Kosovo is party to, specifically the Central European …

Comity & Calamity: Deference To The Executive And The Uncertain Future Of The Fsia, Michael Cooper

Brooklyn Journal of International Law

In 1976, Congress set out to remedy the haphazard and politically influenced system by which foreign states were granted sovereign immunity from United States’ courts. Its remedy was the Foreign Sovereign Immunities Act (FSIA), which explicitly put the power to determine whether a foreign state should be granted immunity from a court’s jurisdiction in the hands of the judiciary. Moreover, with some minor exceptions, the FSIA did not explicitly contemplate any involvement from the executive branch in reaching those determinations. However, given that concerns involving foreign relations inherently arise when a foreign state is sued in U.S. courts, the courts …

State V. Bassett: Washington Courts Can No Longer Sentence Juveniles To Die In Prison, Carolyn Mount

Seattle Journal for Social Justice

No abstract provided.

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 06-2020, Roger Williams University School Of Law, Michael M. Bowden, Katie Mulvaney

Life of the Law School (1993- )

No abstract provided.

Disappearing Act: Are Free Speech Rights Decreasing?, Michael Conklin

St. Mary's Law Journal

Abstract forthcoming.

Judicial Precedent In Emerging Constitutional Jurisdictions: Formulating A Doctrine Of Constitutional Stare Decisis For Singapore, Kenny Chng

Research Collection Yong Pung How School Of Law

Judicial precedents in constitutional law raiseunique stare decisis considerations. While they are authoritative pronouncementson the proper interpretation of the Constitution and are thus an essentialcomponent of constitutional law, they are also merely judicial precedents – andthus susceptible to being overturned. These considerations have been thesubject of a well-developed body of literature, especially in the context of USSupreme Court constitutional precedents.Yet, despite being a constitutional supremacy, little attention has beenpaid in Singapore to the question of the proper judicial approach towardsconstitutional precedents. This paper aims to address this issue. It will discernthe de facto principles that Singapore judges have thus far …

May 31, 2020: Regarding This Moment, Bruce Ledewitz

Hallowed Secularism

Blog post, “Regarding This Moment“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Artificial Entities With Natural Rights: Pursuing Profits At The Expense Of Human Capital, Loren M. Findlay

Washington and Lee Journal of Civil Rights and Social Justice

This Note explores the legal and constitutional rights granted to corporations and highlights how these corporate benefits are often at the expense of individuals. Over the past century, the corporation has evolved, taking on human-like characteristics. While many statutes and the Constitution use the word “person,” courts have inconsistently interpreted the definition of “person” in determining when it expands to corporations. In courts’ ad hoc analysis and interpretation, individuals get the metaphorical short-end of the stick.

The First Amendment of the Constitution was interpreted by the U.S. Supreme Court to afford the right of free speech to corporations in the …

The Indiscretion Of Friends: Fourth Amendment Concerns About The Ability To Predict A Person’S Online Social Activity By Monitoring Her Contacts, George M. Dery Iii

Minnesota Journal of Law, Science & Technology

No abstract provided.

Review Law: New York Defamation Applied To Online Consumer Reviews, Ian Lewis-Slammon

St. John's Law Review

(Excerpt)

In early July 2017, Michelle Levine booked her first and only appointment with gynecologist Dr. Joon Song for an annual exam. Ms. Levine had a dissatisfying experience with the office. She claims that Dr. Song’s office did not follow up with her for almost a month, and that when she called to ask about the results of a blood test, Dr. Song’s staff falsely informed her that she tested positive for herpes. To top it off, Ms. Levine alleges that the office overcharged her. Following this experience, Ms. Levine did what many others do when dissatisfied with a product …

Shedding Tiers: A New Framework For Equal Protection Jurisprudence, Danielle Stefanucci

St. John's Law Review

(Excerpt)

This Note argues that the Supreme Court of the United States should reconsider the tiers of scrutiny framework that courts use to evaluate equal protection claims. The Supreme Court has recognized government classifications on the bases of race and gender to be suspect and to merit heightened judicial scrutiny. However, any governmental classification among people is subject to review under the Equal Protection Clause. The class itself is not suspect; the basis for the classification, like race or gender, is treated by courts as more or less suspect.

However, employing the tiers of scrutiny no longer makes sense in …

Wiping Away The Tiers Of Judicial Scrutiny, R. George Wright

St. John's Law Review

(Excerpt)

Throughout much of constitutional law and beyond, courts often decide cases by applying some form of tiered or multilevel judicial scrutiny. Tiered scrutiny exhibits remarkable variability and complexity. At its simplest, tiered scrutiny involves a judicial inquiry into the legitimacy and the degree of importance of some public goal purportedly furthered by the government policy at issue. The courts then typically undertake a second step, inquiring into the degree of “tailoring” of the government policy— namely the policy’s overinclusiveness or underinclusiveness relative to its supposed purpose. This simplified account of tiered scrutiny conceals, however, a number of important problems. …

Foreign-Born Children Of Disloyal Parents: Adam Muthana, Mary Arcedeckne, And The Natural-Born, John Vlahoplus

St. John's Law Review

(Excerpt)

Can Adam Muthana, the foreign-born child of an alien Islamic State of Iraq and Syria (“ISIS”) combatant and a New Jersey-born ISIS adherent, grow up to be president of the United States? He can if he attains the age of thirty-five, resides in the United States for fourteen years, and is a natural-born citizen. He has a facial claim to statutory derivative citizenship at birth through his mother, and some scholars argue that anyone who is a citizen at birth is a natural-born citizen. Nevertheless, there are significant disputes over whether he will be allowed to reside here, whether …

Youth Suffrage: In Support Of The Second Wave, Mae C. Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens

Akron Law Review

The 19th Amendment is talked about as central to our nation’s suffrage story, with many situating women's suffrage work within feminist theory "wave" discourse. However, with this telling, scholars and others too frequently overlook young voters and efforts relating to their election law rights. This article seeks to remedy this oversight and complicate the voting rights canon, in addition to supporting efforts of today’s youth voting rights advocates. It does so by turning our attention to youth suffrage movements, which we argue also can be examined by way of a framework of "waves." The first to offer such an historical …

Felony Disenfranchisement And The Nineteenth Amendment, Michael Gentithes

Akron Law Review

The Nineteenth Amendment and the history of the women’s suffrage movement can offer a compelling argument against felony disenfranchisement laws. These laws leave approximately six million citizens unable to vote, often for crimes wholly unrelated to the political process. They also increasingly threaten gains in female enfranchisement.

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier. Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails, and that their votes are somehow less worthy than others. …

The Nineteenth Amendment And The U.S. "Women's Emancipation Policy" In Post-World War Ii Occupied Japan: Going Beyond Suffrage, Cornelia Weiss

Akron Law Review

This paper explores the influence of the Nineteenth Amendment on U.S. military occupation policy in Post-World War II Japan. A mere 25 years after the ratification of the Nineteenth Amendment, actions taken during the military occupation did not stop at suffrage for Japanese women. Actions included a constitution that provided for women’s “equality” (what, even 100 years after the ratification of the Nineteenth Amendment, is still absent in the U.S. constitution). In addition to addressing women’s suffrage and constitutional equality, this paper examines the successes and failures of the Occupation to eradicate the legal enslavement of women, to eliminate the …