Constitutional Law Commons^™

Clan Mothers And Founding Fathers: The Impact Of The Iroquois Confederacy On American Constitutionalism, Kayla Sargent

Senior Honors Theses

The American Constitutional tradition was influenced by many different sources, such as Scripture, English Common Law, and the governmental structure of ancient Greece and Rome. However, many Constitutional scholars often fail to realize that the Founding Fathers looked beyond Europe for inspiration. One source to which they may have turned was the Iroquois Great Law of Peace. The Great Law of Peace was the first constitution in North America, potentially as early as 1450, and passed down via oral tradition until it was written down in the 1880s. The Great Law of Peace brought together the Seneca, Onondaga, Oneida, Mohawk, …

Petitioners' Reply Memorandum In Support Of Their Emergency Petetion For A Writ Of Habeas Corpus, Joseph Mead, David J. Carey, Freda J. Levenson, David A. Singleton, Mark A. Vander Laan, Michael L. Zuckerman

Law Faculty Briefs and Court Documents

In the roughly 120 hours since Petitioners filed their emergency petition for a writ of habeas corpus, the death toll at Elkton has doubled, and the number of BOP-confirmed COVID-19 cases among prisoners has tripled. About three dozen corrections staff have tested positive for the virus, a number that has also tripled since this case was filed. Elkton now accounts for more than one-third of all prisoner deaths from COVID-19 in federal prisons nationwide, and over half of the COVID-19 deaths in Columbiana County, making it one of the deadliest places a person can live in the current pandemic. According …

Letter To Chairman Mcgovern On Remote Voting, Deborah Pearlstein

Testimony

Letter written to Congressman Jim McGovern, Chair of the House Rules Committee. This letter has been entered into the Congressional Record.

As a professor of constitutional law, and a scholar who has written extensively on separation of powers issues in U.S. Government, I believe adopting procedures to allow for remote voting under these extraordinary circumstances is not only lawful, but essential to the maintenance of our constitutional democracy. Recognizing that specific procedures for remote voting may still be in development, the analysis offered here focuses foremost on the broad scope of Congress’ constitutional authority to regulate its voting procedures.

Brief Of Amici Curiae Professors Ronald A. Cass, David F. Forte, James L. Huffman, Donald J. Kochan, Jesse J. Richardson And Reed Watson In Support Of Petitioners, David F. Forte, Ronald A. Cass, James L. Huffman, Donald J. Kochan, Jesse J. Richardson, Reed Watson

Law Faculty Briefs and Court Documents

The Court of Federal Claims ruled that the Klamath, Yurok and Hoopa (hereafter Tribes) reserved water rights in the Klamath River Basin are of a volume at least equal to the amount of water the Environmental Protection Agency has determined to be necessary to trigger endangered species protection. In the absence of an adjudication in state or federal court and contrary to the long history of federal deference (both by Congressional enactment and judicial precedent) to state adjudication of water rights, the Federal Circuit affirmed and thus preempted, without the participation of affected parties including petitioners, the State of Oregon’s …

Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy

Maine Law Review

In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …

Jural Entities, Real Parties In Controversy, And Representative Litigants: A Unified Approach To The Diversity Jurisdiction Requirements For Business Organizations, Charles A. Szypszak

Maine Law Review

The rules that make the federal courts available for the resolution of controversies between citizens of different states have often been described as placing an undue burden on the federal system. Congress has for the most part turned a deaf ear to calls by jurists and commentators for reform or even abolition of federal diversity jurisdiction, leaving the courts to struggle with difficult issues about the proper contours of the jurisdictional requirements. One recurring difficult issue is the manner in which citizenship is to be attributed to the investors who compose various business organizations. The general rule has been that …

A Section-By-Section Analysis Of Maine's Freedom Of Access Act, Anne C. Lucey

Maine Law Review

There seems to be no absolute freedom of information. Even President Lyndon B. Johnson's declaration made on July 4, 1966, as he signed the Freedom of Information Act (FOIA) into law, indicates the limitations accompanying most right-to-know laws from their inception. A delicate balance must be struck between the public's access to public business and the public interest, between the public's access and a person's right to privacy, and, at the federal level, between the public's access and national security. Maine also crafted a limited freedom of information law, the Freedom of Access Act ("FOAA" or "the Act"), seven years …

Drug Testing In The Nonunionized Workplace: Search And Seizure, Procedural Due Process, And Maine's Drug-Testing Statute, Shawn K. Bell

Maine Law Review

As former President Reagan stated in Executive Order No. 12,564, "[d]rug use is having serious adverse effects upon a significant pro- portion of the national work force .... " One survey by the National Institute on Drug Abuse found that between ten and twenty-three percent of all employees use drugs at work. The costs to industry in lost productivity due to drugs are equally staggering. Employee drug and alcohol abuse resulted in an estimated $100 billion in lost productivity in 1986. Furthermore, employees with drug or alcohol abuse problems have an absentee rate sixteen times greater than the average employee, …

State V. Violette: Harsher Resentencing Encounters A Bolder Resumption Of Vindictiveness, Thomas C. Bradley

Maine Law Review

Twenty-one years ago, in Weeks v. State, the Maine Supreme Judicial Court, sitting as the Law Court, adopted a rule to prevent judicial vindictiveness when resentencing defendants who had successfully appealed their conviction and been reconvicted. The Weeks court adopted as a state due process protection the United States Supreme Court's rule laid down the preceding year in North Carolina v. Pearce. The Pearce rule provides that harsher resentencing of such defendants creates a presumption of constitutionally prohibited vindictiveness unless the harsher sentence is explicitly based on some identifiable misconduct by the defendant since the prior sentencing. Thus, the Law …

State V. Pinkham: Erosion Of Meaningful Forth Amendment Protection For Vehicle Stops In Maine?, Roger M. Clement Jr.

Maine Law Review

In State v. Pinkham, the Maine Supreme Judicial Court, sitting as the Law Court, held that a police officer's stop of a motorist to inquire and advise about the motorist's improper-but not illegal-lane usage did not necessarily violate the Fourth Amendment's proscription against unreasonable seizures. The Pinkham decision is the first time that the Law Court has validated the stop of a moving vehicle in the absence of either a suspected violation of law or an imminent, ongoing threat to highway safety.
This Note considers whether the Law Court was correct in sustaining the police officer's stop of Ronald Pinkham. …

Taking It Too Far: Growth Management And The Limits To Land-Use Regulation In Maine, Michael A. Duddy

Maine Law Review

In 1989 Maine enacted the Comprehensive Planning and Land Use Regulation Act. The Act's legislative findings declared that “ the State has a vital interest in ensuring that a comprehensive system of land-use planning and growth management is established as quickly as possible.” However, whenever the state exercises its police power to regulate private land use, it faces a constitutional limit as to how far it can go. When the land-use restriction exceeds that limit, a regulatory taking occurs. This Comment argues that the Comprehensive Planning and Land Use Regulation Act, as it is being interpreted and implemented by state …

Jural Entities, Real Parties In Controversy, And Representative Litigants: A Unified Approach To The Diversity Jurisdiction Requirements For Business Organizations, Charles A. Szypszak

Maine Law Review

The rules that make the federal courts available for the resolution of controversies between citizens of different states have often been described as placing an undue burden on the federal system. Congress has for the most part turned a deaf ear to calls by jurists and commentators for reform or even abolition of federal diversity jurisdiction, leaving the courts to struggle with difficult issues about the proper contours of the jurisdictional requirements. One recurring difficult issue is the manner in which citizenship is to be attributed to the investors who compose various business organizations. The general rule has been that …

State V. Brown: How Limited A Right To Keep And Bear Arms?, June A. Jackson

Maine Law Review

Most state constitutions contain a clause guaranteeing a right to keep and bear arms. With gun control legislation on the rise, these state constitutional guarantees have come under increasing scrutiny. In State v. Brown defendant Edward Brown, a convicted felon, challenged the Maine statute that forbade him to possess firearms on the ground that it violated his state constitutional right to bear arms. Similar statutes around the country limit the right to bear arms in various ways. Case law has tended to uphold these limitations and to establish that the right to bear arms is a limited right at best. …

Please Stop: The Law Court's Recent Roadblock Decisions, Jonathan A. Block

Maine Law Review

Police checkpoints or “roadblocks” have become an increasingly utilized law enforcement tool. At best, these checkpoints result in only a minor inconvenience to motorists. When abused, however, roadblocks have the potential for invidious invasions of privacy and personal freedom. Roadblocks are designed to deter, and to a lesser extent detect, criminal activity by stopping everyone—both the guilty and the law-abiding—for a brief inspection, thereby impinging to some degree on one's freedom of travel, privacy, and “right to be let alone.” Such “seizures” must be “reasonable” under the Fourth Amendment in order to survive constitutional challenge. The major difference between roadblocks …

Privileged Violence, Principled Fantasy, And Feminist Method: The Colby Fraternity Case, Martha T. Mccluskey

Maine Law Review

Colby College banned fraternities and sororities in 1984 after many years of unsuccessfully attempting to improve fraternity behavior. Sexual harassment and sex discrimination were major reasons for the college's decision. At first the college withheld official recognition of and financial benefits to the fraternities. Membership in fraternities was not punished, although Colby established a policy prohibiting any participation in fraternities. The college had hoped that without houses, financing, and other support from the administration, the fraternities would disband—particularly once all students who had belonged to the officially sanctioned groups had graduated. Although the sororities soon dissolved, most of the male …

The Constitutional Law Of Equality In Canada, Kathleen E. Mahoney

Maine Law Review

On April 17, 1982, Canada repatriated its constitution from the Parliament at Westminster, sweeping away one of the final vestiges of its colonial past. At the same time, a Canadian Charter of Rights and Freedoms was constitutionally entrenched, giving the people express constitutional rights for the first time. The equality provisions, in particular, represented a new era in Canadian constitutional law. The intense debate leading up to the entrenchment of the Charter raised profound questions about the basic nature of the country, its values, and its ability and willingness to acknowledge equality for women and other disadvantaged groups. Since the …

Distinguising Between Core And Peripheral Presential Powers, Harold J. Krent

Chicago-Kent Law Review

No abstract provided.

Brief Amici Curiae On Behalf Of Constitutional Law Professors A.E. Dick Howard, Russell A. Miller, And Carl W. Tobias: Lynchburg Range & Training Llc V. Northam, A.E. Dick Howard, Russell A. Miller, Carl W. Tobias

Scholarly Articles

Through Executive Order No. 53, the Governor of Virginia has acted in a manner consistent with the Constitution of Virginia in temporarily limiting access to indoor, nonessential businesses during the COVID-19 health crisis. Nothing in Article I, § 13 should be read to, nor was intended to, prevent the Governor from taking neutral, commonsense actions to protect the public health in the face of a nationwide pandemic.

Eroding "Checks" On Presidential Authorty -- Norms, The Civil Service, And The Courts, Peter L. Strauss

Chicago-Kent Law Review

No abstract provided.

Emergency Petition For Writ Of Habeas Corpus, Injunctive, And Declaratory Relief - Class Action, Joseph Mead, David J. Carey, Mark A. Vander Laan, Freda Levenson, David Singleton

Law Faculty Briefs and Court Documents

As a tragic combination of infectious and deadly, COVID-19 poses a once-in-a-lifetime threat on a worldwide scale. Every state and territory in the United States has now been impacted, with nearly half a million cases and over 20,000 deaths reported to the Centers for Disease Control and Prevention (CDC). Even under ordinary conditions, each person who contracts this illness can be expected to infect between 2 and 3 others.

Cramped, overcrowded prisons amplify this threat. With thousands of people literally stacked on top of each other and unable to move around without rubbing shoulders, such environments are fundamentally incompatible with …

Classifying Systems Of Constitutional Review: A Context-Specific Analysis, Samantha Lalisan

Indiana Journal of Constitutional Design

Modern constitutional drafters and advisors increasingly use judicial review classifications and the current model for classification does not accurately capture constitutional review in Latin America. This paper proposes context-specific classification that can accurately capture constitutional review in the Latin American region. Specifically, this paper argues that the context-specific analysis suggests that the more salient point of classification in Latin America is that of access mechanisms to constitutional courts. As such, the paper proceeds in four parts: Part I examines the traditional model of classification in Europe and focuses on the Spanish and German direct access mechanisms. Part II explores the …

Judicial Independence And The Budget: A Taxonomy Of Judicial Budgeting Mechanisms, Alexander Rosselli

Indiana Journal of Constitutional Design

This Paper addresses three aspects of judicial budgeting. First, it will identify the four broad families of constitutional provisions that consider the judicial budget. While the majority of procedures and requirements that govern judicial budgeting are found in statues, many nations’ constitutions explicitly address judicial salaries. Other constitutions only broadly address judicial budgeting. Second, we will analyze different approaches to judicial councils. Third, this Paper will address several different approaches to the judicial budgeting process. This includes how the judiciary’s budget is proposed, as well as how it is allocated and managed. Finally, this Paper will touch upon the tension …

Campus Sexual Assault And Due Process, Ilana Frier

Duke Journal of Constitutional Law & Public Policy Sidebar

College women experience rape and sexual assault at alarmingly high rates. One highly publicized statistic, famously asserted by President Obama, states that one in five women experience sexual assault while attending college. In 2011, the U.S. Department of Education radically expanded its involvement in campus sexual misconduct adjudications, encouraging vigorous enforcement. Sustained regulatory and public pressure effectuated some positive change for victims. However, a proliferation of litigation also followed. Students found responsible of campus sexual assault, most of whom were males, increasingly began suing their schools alleging due process violations in their adjudications. In 2018, the Trump administration's Department of …

April 12, 2020: On Watching Ben-Hur, Bruce Ledewitz

Hallowed Secularism

Blog post, “On Watching Ben-Hur“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Law School News: Rwu Law Professors File Emergency Covid-19 Lawsuit 04-12-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

April 8, 2020: What Is The Meaning Of The Virus, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is the Meaning of the Virus“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Shooting America Straight: Why The Time Is Now For The Supreme Court To Fortify Gun Rights In America Post-Heller, Garrett Cleveland

Texas A&M Law Review

Since the landmark cases of District of Columbia v. Heller in 2008 and McDonald v. City of Chicago in 2010, the Supreme Court has declined to hear any of the many current cases that present an opportunity to address the Second Amendment. As a result, the lower courts have largely eroded firearm rights in many regions of the United States. It is thus imperative that the Supreme Court grant certiorari to a Second Amendment-related case to clarify certain aspects of Heller, or the lower courts will continue to treat the Second Amendment as a disfavored right. Essentially, the lower courts …

Yedidya Loewenthal, Adv. V. Prime Minister, Isaac Amit, Anat Baron, Yosef Elron

Translated Opinions

This petition was submitted by four lawyers, residents of Bnei Brak, requesting an order nisi requiring that the State explain why Government Decision declaring the Bnei Brak municipal district as a “restricted zone” for six days not be revoked.

The Petitioners argued that the declaration of Bnei Brak as a “restricted zone” was intended only to prevent the spread of the virus to adjacent cities, but in no way related to the prevention of its spread among the residents of Bnei Brak themselves. They further argued that the declaration mortally harms the residents’ freedom of occupation, their liberty, dignity and …

People's Movements As A Strand Of Popular Constitutionalism: Driving Forces, Distinctive Features, And Dilemmas, Binendri Perera

Washington International Law Journal

Constitutional democracies claim themselves to be constructed upon the will of the people. As the agency gap between the rulers and the ruled widens, people are increasingly more frustrated and compelled to actively take a stand. Advances of technology and social mobilization give increasing opportunities for the people to directly express their will and call for accountability from their representatives. Against this backdrop, this paper engages in a comparative analysis of people’s movements that happened and are continuing to take place in South Korea, Sri Lanka, Venezuela and Algeria. Based on the analysis, the paper maps out the common weaknesses …

Murphy V. Ncaa: Why States In Need Of Revenue Should Challenge The Constitutionality Of 15 U.S.C. § 381, Owen Walsh

University of Cincinnati Law Review

No abstract provided.