Constitutional Law Commons^™

Next Verse, Same As The First: Inadequacies In The Government's Legal Approach Toward Biotechnology, Kimberly Righter

Sustainable Development Law & Policy

No abstract provided.

Implementing Kyoto, Glenn Wiser

Sustainable Development Law & Policy

No abstract provided.

Brief Of Constitutional Law Scholars As Amici Curiae In Support Of Petitioners, David F. Forte, Ronald J. Colombo, Richard Epstein, Carl H. Esbeck, Robert P. George, Mary Ann Glendon, Brian Mccall, Stacy Scaldo, Steven Smith

Law Faculty Briefs and Court Documents

Lurking behind the regulatory issues presented by this appeal is a concerted effort to displace the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. ("RFRA"), with a novel approach that would trivialize a law's burden on religion. The Court should not indulge it.

The critics' argument suffers from several analytical defects that can be remedied by (1) a proper constitutional understanding of RFRA's relationship to the Establishment Clause; (2) an accurate understanding of how the Religion Clauses safeguard third-party interests; and (3) the correct application of these understandings to the Final Rules.

Brief Of Amici Curiae Michael L. Rosin, David G. Post, David F. Forte, Michael Stokes Paulsen, And Sotirios Barber In Support Of Presidential Electors, David F. Forte, Michael L. Rosin, David G. Post, Michael Stokes Paulsen, Sotirios Barber

Law Faculty Briefs and Court Documents

The Framers of the Constitution crafted the Electoral College to be an independent institution with the responsibility of selecting the President and Vice-President. Therefore, they intended each elector to exercise independent judgment in deciding whom to vote for. A state cannot revise the Constitution unilaterally by reducing the elector to a ministerial agent who must vote in a particular way or face a sanction. The question of each elector’s moral or political obligation is not before the Court. Nor is the desirability of the current electoral system. Rather, this case turns on what the Constitution allows, and what it prohibits. …

Second Guessing Double Jeopardy: The Stare Decisis Factors As Proxy Tools For Original Correctness, Justin W. Aimonetti

William & Mary Law Review Online

In Gamble v. United States, the Supreme Court reaffirmed the 170-year-old dual-sovereignty doctrine. That doctrine permits both the federal and state governments—as “separate sovereigns”—to each prosecute a defendant for the same offense. Justice Thomas concurred with the majority opinion in Gamble, but wrote separately to reject the traditional stare decisis formulation. In particular, the factors the majority used to evaluate stare decisis, in his view, amount to nothing more than marbles placed subjectively on either side of the stare decisis balancing scale. He would have preferred, instead, an inquiry into whether the precedent was demonstrably erroneous as an original matter, …

Abortion Case May Not Overturn Roe, But Could Effectively Nullify It, A. Benjamin Spencer

Popular Media

No abstract provided.

Symposium: 19th Amendment At 100: Many Pathways To Suffrage, Other Than The 19th Amendment, Ann D. Gordon

ConLawNOW

When the Nineteenth Amendment to the U.S. Constitution appears in historical memory as the intended objective in the long march of woman suffragists, the complexity of changing voting rights is obscured. This essay looks at a variety of ways that women tried to break through the male monopoly of political power in the nineteenth and early twentieth centuries. In the earliest days of agitation, women took for granted that qualifications for voting were set solely by the states. Their earliest political pleas were made to state constitutional conventions. The last state victories were won in 1918. After the Civil War, …

March 4, 2020: Proud To Be A Democrat, Bruce Ledewitz

Hallowed Secularism

Blog post, “Proud to be a Democrat“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Drones: Where Does The National Airspace System Start?, Jason T. Lorenzon J.D.

National Training Aircraft Symposium (NTAS)

Unmanned Aerial Systems (UAS), Unmanned Aeronautical Vehicles (UAV), drones and Personal Aerial Vehicles (PAV) constitute the greatest technological advancement since the jet age. (Elaine Chao, Secretary of Transportation, October 26, 2017) This technological advancement has prompted significant public policy challenges and the need for new laws regarding navigable airspace. This proposal investigates how airspace used by drones will evolve given existing Constitutional and common law principals. These principals will influence the creation, development and modification of UAS airspace regulations by the Federal Aviation Administration (FAA).

Two critical but unanswered questions concerning the National Airspace System, are where does navigable airspace …

The Untouchable Executive Authority: Trump And The Section 232 Tariffs On Steel And Aluminum, Arim Jenny Kim

University of Miami Business Law Review

In 2018, President Trump championed his way through the imposition of the Section 232 Tariffs—a heavy tax on various imports, including steel and aluminum—by broadcasting a supposedly-imminent threat to the U.S. national security. This plea, however, has been criticized as a veil for President Trump’s economic protectionism policy. Meanwhile, others have questioned the constitutionality of the statute creating the President’s authority to impose these tariffs in the first place. This Comment explores the issues arising from President Trump’s Section 232 Tariffs on steel and aluminum: (1) the validity and justiciability of President Trump’s actions under Section 232 of the Trade …

For Once, A Defense Of Amtrak: Do Market Participants With Regulatory Authority Violate Due Process?, Blayne Justus Yudis

University of Miami Business Law Review

The National Basketball Association (“NBA”) regulates American professional basketball.. After acquiring the New Orleans Hornets in 2010, the NBA temporarily became both the league regulator and a franchise owner. As owner, the NBA vetoed a trade that would have sent the Hornets’s best player to another team. Was the NBA acting out of self-interest when it blocked the trade? In other words, was its trade block fair?

Federal Courts have recently dealt with this issue in Association of American Railroads v. U.S. Department of Transportation. Following a decade of litigation, the D.C. Circuit Court of Appeals decided that granting …

The Traditions Of American Constitutional Law, Marc O. Degirolami

Notre Dame Law Review

This Article identifies a new method of constitutional interpretation: the use of tradition as constitutive of constitutional meaning. It studies what the Supreme Court means by invoking tradition and whether what it means remains constant across the document and over time. Traditionalist interpretation is pervasive, consistent, and recurrent across the Court’s constitutional doctrine. So, too, are criticisms of traditionalist interpretation. There are also more immediate reasons to study the role of tradition in constitutional interpretation. The Court’s two newest members, Justices Neil Gorsuch and Brett Kavanaugh, have indicated that tradition informs their understanding of constitutional meaning. The study of traditionalist …

Fiduciary Injury And Citizen Enforcement Of The Emoluments Clause, Meredith M. Render

Notre Dame Law Review

The text of the Emoluments Clause provides no explicit enforcement mechanism, raising questions about who may enforce the Clause, and the mechanism by which it might be enforced. Is the Clause enforceable exclusively by collective action—such as an impeachment proceeding by Congress—or is it also enforceable by individual action—such as a private lawsuit? If the Emoluments Clause can be enforced by private action, who has standing to sue? In the absence of explicit textual guidance, a broader constitutional theory is required to render enforcement of the Clause coherent.

This Article presents that broader theory. The Article argues that the Emoluments …

Can A "Mere Employee" Stop You From Vaping? The Appointments Clause Applied To Rulemakers, Melinda Holmes

Notre Dame Law Review

This Note analyzes whether actors discharging the rulemaking function of an agency are officers and discusses whether persons not appointed pursuant to the Appointments Clause can constitutionally exercise such power. Part I examines the development of the doctrine over time leading to Lucia. Part II presents possible frameworks for challenges following Lucia. Part III traces delegation of authority from Congress to the agency and from senior agency officials to the individual who actually exercises the delegated authority. In doing so, it explores how the framework should apply in the rulemaking context, focusing on the example presented by litigation …

Tinker-Ing With Machine Learning: The Legality And Consequences Of Online Surveillance Of Students, Amy B. Cyphert

Nevada Law Journal

No abstract provided.

Mental Health And The Constitution: How Incarcerating The Mentally Ill Might Pave The Way To Treatment, Samantha M. Caspar, Artem M. Joukov

Nevada Law Journal

No abstract provided.

The Dormant Commerce Clause And State Clean Energy Legislation, Kevin Todd

Michigan Journal of Environmental & Administrative Law

This Note analyzes recent litigation concerning the constitutionality of state renewable portfolio standards (RPSs) and similar environmental legislation designed to promote clean energy. It begins with a discussion of the current state of both federal and state responses to climate change. From there, it analyzes several legal challenges to state RPSs and other climate-related laws that focus on potential violations of the dormant Commerce Clause. It concludes with a brief exploration of how these cases fit the history and purpose of the dormant Commerce Clause. The Note argues that a narrow view of the doctrine is consistent with the purpose …

Why The Nineteenth Amendment Matters Today: A Guide For The Centennial, Neil S. Siegel

Faculty Scholarship

The story of the Nineteenth Amendment includes a half-century of social movement contestation over whether permitting women to vote would destroy or democratize the American family and the American constitutional structure. This Essay revisits that story—an unfinished narrative of both disappointment and hope—in the service of identifying reasons why it relates to the lives of contemporary Americans. The overarching objective of the Essay is to suggest that the full story of the Nineteenth Amendment has always involved much more than a narrow debate over a determinate decision rule regarding women’s access to the franchise. To accomplish that objective, the Essay …

Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such …

Extraterritorial Rights In Border Enforcement, Fatma Marouf

Faculty Scholarship

Recent shifts in border enforcement policies raise pressing new questions about the extraterritorial reach of constitutional rights. Policies that keep asylum seekers in Mexico, expand the use of expedited removal, and encourage the cross-border use of force require courts to determine whether noncitizens who are physically outside the United States, or who are treated for legal purposes as being outside even if they have entered the country, can claim constitutional protections. This Article examines a small but growing body of cases addressing these extraterritoriality issues in the border enforcement context, focusing on disparities in judicial analyses that have resulted in …

The Myth Of Personal Liability: Who Pays When Bivens Claims Succeed, James E. Pfander, Alexander A. Reinert, Joanna C. Schwartz

Articles

In Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. For the last three decades, however, the Court has cited the threat of individual liability and the burden of government indemnification on agency budgets as twin bases for narrowing the right of victims to secure redress under Bivens. In its most recent decisions, Ziglar v. Abbasi and Hernandez v. Mesa, the Court said much to confirm that it now views personal liability less as a feature of the Bivens liability rule than …

A Knock On Knick'S Revival Of Federal Takings Litigation, Stewart Sterk, Michael C. Pollack

Articles

In Knick v. Township of Scott, the United States Supreme Court held that a landowner who claimed to have suffered a taking at the hands of state or local officials could seek redress in federal court without the need to first seek compensation through state proceedings. This holding raises serious theoretical and practical concerns. On the theoretical side, Knick rests on the implicit assumption that states separate powers among branches of government in the same way the federal government does. It also relies on a second assumption: that relegating taking claims to state court makes them unique. Neither is …

“Catchy Phrases That Convey A Message”: The Danger Of Tam’S Copymark Creep And Trademark Law’S New First Amendment Analysis, Stacey M. Lantagne

Nevada Law Journal

No abstract provided.

Breaking Bivens?: Falsification Claims After Ziglar V. Abassi And Reframing The Modern Bivens Doctrine, Alex Langsam

Fordham Law Review

The U.S. Supreme Court’s 2017 decision in Ziglar v. Abassi purported to clarify the role of the judiciary in inferring Bivens suits directly from the Constitution, rather than a federal statute. Despite this effort, uncertainty has plagued the lower courts. While the Court’s recent Bivens jurisprudence has focused on issues concerning national security, uncertainty also persists in Bivens claims in other domains. This Note examines Bivens claims seeking damages for constitutional violations by law enforcement agents who falsify evidence, lie to procure a search warrant, and commit other similar acts of misconduct. After recognizing a broad, unacknowledged circuit split on …

Before Loving: The Lost Origins Of The Right To Marry, Michael Boucai

Journal Articles

For almost two centuries of this nation’s history, the basic contours of the fundamental right to marry were fairly clear as a matter of natural, not constitutional, law. The right encompassed marriage’s essential characteristics: onjugality and contract, portability and permanence. This Article defines those four dimensions of the natural right to marry and describes their reflections and contradictions in positive law prior to Loving v. Virginia (1967). In that landmark case, the Supreme Court enforced a constitutional “freedom to marry” just when marriage’s definitive attributes were on the brink of legal collapse. Not only did wedlock proceed in Loving’s wake …

Protecting The Role Of The Press During Times Of Crisis, Mary-Rose Papandrea

William & Mary Law Review

President Trump’s daily tweets attacking the media have led many observers to express concern about the state of the press in our nation. Trump has called the press “the ... enemy of the [American] people,” encouraged a climate of hatred toward journalists at his rallies, refused to condemn Saudi Arabia for the brutal killing of reporter Jamal Khashoggi, and accused the media of writing “fake news.” The public’s trust in the institutional press has simultaneously diminished. Combined with the continuing economic challenges journalists face, the press is certainly facing some difficult times.

Nevertheless, things are not as dire as they …

The Court Should Not Let Politically Divided Times Affects Its Choices And Decisions, Erwin Chemerinsky

William & Mary Law Review

The Court should not let politically divided times affect its choices or decisions. Altering the Court’s role in politically divided times would require a definition of what qualifies as such an era and a theory of how to act in such times. Almost every era in American history could be deemed a politically divided time. Changing the Court’s role in politically divided times is inconsistent with its preeminent role: interpreting and enforcing the Constitution. This role does not change, and should not change, in politically charged moments. Indeed, history shows that the Court cannot know what is likely to lessen …

Daijosai And The Separation Of Religion And State, Thomas Makoto Naruse

Japanese Society and Culture

Daijosai, which is regarded as an indispensable ceremony for the accession of the throne, is a Shinto ceremony. Therefore, as Japanese Constitution defines separation of church and state, it is not held as a national ceremony (a state act) but held as a ceremony of the imperial house. On the other hand, since it is said to be an indispensable ceremony for the accession of the throne, government finds public significance, and the cost is covered by the national expenses. Criticisms that claim violation of separation of church and state arise, and many lawsuits were filed.

This article reveals …

What Does Corporal Punishment In Schools Mean? : Trend Of Case Law, Hitoshi Miyahara

Japanese Society and Culture

Since the Meiji era, school education statutes have consistently prohibited corporal punishment. However, corporal punishment never disappeared from schools. We have to consider the reasons why teachers are unable to avoid them. The Supreme Court of Japan has ruled that corporal punishment is illegal, but that teachers could adopt certain forms of “physical contact” in the course of instruction. Their conduct becomes illegal only when they abuse their power. Case law indicates that a decision on whether they abused it is made after considering all circumstances, for example the necessity to use force, purpose of instruction, and method of discipline.

Justices Make The Tough-- But Right-- Call In Cross-Border Shooting Case, A. Benjamin Spencer

Popular Media

No abstract provided.