Constitutional Law Commons^™

State Standing And National Injunctions, Bradford Mank, Michael E. Solimine

Notre Dame Law Review

Most of the growing literature on national injunctions makes only passing mention, if at all, of states being plaintiffs or of the appropriateness of state standing and how it might bear on the geographic scope of an injunction. This Essay undertakes to fill that gap in a more extended way. Part I of the Essay addresses the issue of state standing in suits against the federal government, and argues that such standing is well grounded in the traditional parens patriae powers of states and should be permitted to protect the health, welfare, and natural resources of their citizens. That is, …

Standing For Nothing, Robert A. Mikos

Notre Dame Law Review

A growing number of courts and commentators have suggested that states have Article III standing to protect state law. Proponents of such “protective” standing argue that states must be given access to federal court whenever their laws are threatened. Absent such access, they claim, many state laws might prove toothless, thereby undermining the value of the states in our federal system. Furthermore, proponents insist that this form of special solicitude is very limited—that it opens the doors to the federal courthouses a crack but does not swing them wide open. This Essay, however, contests both of these claims, and thus, …

State Standing's Uncertain Stakes, Aziz Z. Huq

Notre Dame Law Review

I offer a quite modest contribution to debates on state standing. I do not offer “right answers.” Rather, I posit that it is useful to understand the “stakes” of state standing. By “stakes,” I mean the practical consequences of resolving, one way or another, the unsettled doctrinal choices respecting the ability of states to initiate a matter in federal courts. Why, that is, does state standing matter? An inquiry into stakes can usefully proceed stepwise. A first task is to identify the subset of state standing cases that presently elicit division among the Justices. A second task is to articulate …

British Impeachments (1376-1787) And The Preservation Of The American Constitutional Order, Frank O. Bowman Iii

Faculty Publications

Impeachment is a British invention, employed by Parliament beginning in 1376 to resist the general tendency of the monarchy to absolutism and to counter particularly obnoxious royal policies by removing the ministers who implemented them. The invention crossed the Atlantic with the British colonists who would one day rebel against their mother country and create an independent United States of America. During the Constitutional Convention of 1787, the delegates decided that presidents and other federal officers could be impeached, but they recoiled from the severe and occasionally fatal punishments imposed by Parliament, and they wrestled over what conduct should be …

Supermajoritarian Criminal Justice, Aliza Plener Cover

Articles

Democracy is often equated with majority rule. But closer analysis reveals that, in theory and by constitutional design, our criminal justice system should be supermajoritarian, not majoritarian. The Constitution guarantees that criminal punishment may be imposed only when backed by the supermajoritarian-historically, unanimous-approval of a jury drawn from the community. And criminal law theorists' expressive and retributive justifications for criminal punishment implicitly rely on the existence of broad community consensus in favor of imposing it. Despite these constitutional and theoretical ideals, the criminal justice system today is majoritarian at best. Both harsh and contested, it has lost the structural mechanisms …

British Impeachments (1376 - 1787) And The Preservation Of The American Constitutional Order, Frank O. Bowman Iii

UC Law Constitutional Quarterly

Impeachment is a British invention. It arose as one of a set of tools employed by Parliament in its long contest with the Crown over the reach of the monarch’s authority. British impeachment practice matters to Americans because the Founders’ understanding of British history influenced their decision to include impeachment in the American constitution and their conception of how impeachment fit in a balanced system of ostensibly co-equal branches. The Article traces the evolution of Parliament’s use of impeachment and of the categories of behavior it designated as impeachable. These included: armed rebellion and other overt treasons; common crimes like …

Abandoned Or Unattended? The Outer Limit Of Fourth Amendment Protection For Homeless Persons’ Property, Tim Donaldson

UC Law Constitutional Quarterly

Homelessness in America has become an epidemic problem. Homeless encampments can be found in public areas of almost every major city, and the resulting accumulation of waste, debris, and other items in those areas presents public health and safety concerns. Many cities have responded to those challenges by periodically clearing or cleaning campsites and must determine, often among tons of materials, what may be collected and discarded. This article reviews the constitutional treatment of abandoned property versus unabandoned property. It proposes guidelines for determining when unattended property left in public areas by homeless persons may be considered abandoned and beyond …

Brief Amici Curiae Of Electronic Frontier Foundation, 1851 Center For Constitutional Law, And Profs. Jonathan Entin, David F. Forte, Andrew Geronimo, Raymond Ku, Stephen Lazarus, Kevin Francis O’Neill, Margaret Tarkington, Aaron H. Caplan, And Eugene Volokh In Support Of Respondent-Appellant, Joni Bey And Rebecca Rasawehr V. Jeffrey Rasawehr, Supreme Court Of Ohio (Case No. 2019-0295), David Forte, Stephen R. Lazarus, Kevin F. O'Neill, Jonathan L. Entin, Andrew Geronimo, Raymond Ku, Margaret Tarkington, Aaron H. Kaplan, Eugene Volokh

Law Faculty Briefs and Court Documents

The brief argues that the Third District Court of Appeals, in violation of the First Amendment, erred in upholding an injunction that barred defendant from any online postings regarding plaintiff, whether or not those postings were to plaintiff or to third parties.

The Trump Travel Ban: Rhetoric Vs Reality, Jeffrey F. Addicott

Faculty Articles

President Trump's "Muslim ban" set the nation afire with debate. Opponents to the ban were motivated by the President's underlying motivations. Three iterations of the travel ban were struck down by lower courts. Before the Supreme Court, however, the travel ban was upheld. First, the plain language of § 1182(f) granted broad discretion to the President. Second, it did not violate the prohibition of discrimination against selected categories in § 1152(a)(1)(A). Finally, it failed to violate the Establishment Clause because it is facially legitimate, satisfying rational basis review. The Court found no facial evidence demonstrating discriminatory bias.

What Florida's Constitution Revision Commission Can Teach And Learn From Those Of Other States, Mary E. Adkins

UF Law Faculty Publications

The framers of Florida's constitution envisioned a Constitutional Revision Commission with complete freedom and independence - but its brainchild has not been able to keep that promise. In light of not only the public frustration with attempts at constitutional reform, but also of the specific problems identified both in structure and in practice of Florida's CRC, this Article suggests some reforms that could help not only Florida but other state constitution commissions or conventions be more effective and more readily accepted by the public.

Traveling While Hispanic: Border Patrol Immigration Investigatory Stops At Tsa Checkpoints And Hispanic Appearance, Pablo Chapablanco

Cornell Law Review

No abstract provided.

Adjudicating Dignity: Judicial Motivations And Justice Kennedy’S Jurisprudence Of Dignity, Allyson C. Yankle, Daniel Tagliarina

UC Law Constitutional Quarterly

Drawing primarily on scholarship concerning legal motivation and the decisionmaking of Supreme Court median justices, we use Justice Kennedy’s opinions as a case study to examine how institutional position on the Supreme Court allows median justices to look beyond policy goals and consider legal goals and motivations in their decision-making. We argue that Kennedy’s unique position on the Court as the median justice allows him to pursue legal considerations, including his seemingly idiosyncratic conception of dignity. Kennedy provides an example of how median justices can use their position to not only pursue policy and political outcomes, but also legal considerations …

Sane Gun Policy From Texas? A Blueprint For Balanced State Campus Carry Laws, Aric Short

Faculty Scholarship

merican universities are caught in the crosshairs of one of the most polarizing and contentious gun policy debates: whether to allow concealed carry on campus. Ten states have implemented "campus carry" in some form; sixteen new states considered passage last year; and a growing wave of momentum is building in favor of additional adoptions. Despite this push towards campus carry, most states adopting the policy fail to strike an effective balance between the competing rights and interests involved. When states give universities the option to opt out of the law, for example, they almost always do. Other states impose a …

Safeguarding Democracy In Europe: A Bulwark Against Hungary’S Subversion Of Civil Society, Hannah J. Sarokin

Brooklyn Journal of International Law

Spurred in large part by a mounting humanitarian crisis in Syria, the 2015 migrant crisis exposed deeply rooted fractures within the European Union regarding refugee resettlement. While the European Union worked to develop a synchronized response to the influx of refugees and asylees, Hungary defiantly sought to close its borders. In doing so, the Hungarian government targeted not only those seeking refuge, but its own civil society. In a series of opaque and overtly punitive legislative acts passed in the summer of 2018, Hungary criminalized any civil society activities that facilitate or assist with immigration. This Note will analyze the …

The Sickness Unto Death Of The First Amendment, Marc O. Degirolami

Faculty Publications

The sickness unto death, in Søren Kierkegaard’s work of the same name, is the anxiety and despair an individual experiences in recognizing that the self is separated from what is collective, extrinsic, or transcendent. Something like this condition now afflicts the First Amendment. The sickness unto death of the First Amendment is that the spectacular success of free speech and religious freedom as American constitutional rights on premises of liberal, individual autonomy has been the very cause of mounting and powerful collective anxiety. The impressive growth of these rights has rendered them fragile, if not actually unsustainable, in their current …

Masterpiece Cakeshop And The Future Of Religious Freedom, Mark L. Movsesian

Faculty Publications

Last term, the Supreme Court decided Masterpiece Cakeshop, one of several recent cases in which religious believers have sought to avoid the application of public accommodations laws that ban discrimination on the basis of sexual orientation. The Court’s decision was a narrow one that turned on unique facts and did relatively little to resolve the conflict between anti-discrimination laws and religious freedom. Yet Masterpiece Cakeshop is significant, because it reflects broad cultural and political trends that drive that conflict and shape its resolution: a deepening religious polarization between the Nones and the Traditionally Religious; an expanding conception of equality that …

Legislative Design And The Controllable Costs Of Special Legislation, Evan C. Zoldan

Maryland Law Review

Legislation that singles out an identifiable individual for benefits or harms that do not apply to the rest of the population is called “special legislation.” In previous work, I have argued that special legislation is constitutionally suspect. In this Article, I explore the normative consequences of special legislation, assessing both the costs it imposes and the benefits that it can provide. Drawing on constitutional theory, public choice theory, and the history of special legislation, I argue that the enactment of special legislation is costly when it reflects the corruption of the legislative process and leads to low-quality legislation, unjustifiably unequal …

A Public Health Approach To Gun Violence, Legally Speaking, Michael Ulrich

Faculty Scholarship

The call for a public health approach to gun violence has largely ignored what role the nascent Second Amendment jurisprudence will play in hindering change. Given the state interest for infringing on Second Amendment rights is nearly always public safety, public health law doctrine provides an apt framework for analysis.

Forging Taiwan’S Legal Identity, Margaret K. Lewis

Brooklyn Journal of International Law

The legal system in Taiwan is undergoing a transformation. Over a hundred years since the founding of the Republic of China and over thirty years since the end of martial law on Taiwan, a new legal identity is being forged. Public criticism of “dinosaur” judges and esoteric debates among law-trained elites have galvanized efforts to create a more inclusive discussion surrounding legal reforms. Taiwan is facing the challenge of moving from dinosaurs to dynamism. This Article argues that transparency, clarity, and participation both are animating principles of the current reform debate and are beginning to emerge as characteristics of Taiwan’s …

Roots Of Revolution: The African National Congress And Gay Liberation In South Africa, Joseph S. Jackson

Brooklyn Journal of International Law

South Africa’s post-apartheid constitutions were the first in the world to contain an explicit prohibition of discrimination on grounds of sexual orientation, and that prohibition established the foundation for marriage equality and broad judicial and legislative protection of gay rights in South Africa. The source of this gay rights clause in the South African Constitution can be found in the African National Congress’s decision to include such a clause in the ANC’s A Bill of Rights for a New South Africa, published when the apartheid government of South Africa was still in power. This article traces the story of that …

Grinding Down The Edges Of The Free Expression Right In Hong Kong, Stuart Hargreaves

Brooklyn Journal of International Law

In the liberal-democratic tradition limits on speech must be clear, precise, and subject to justification within the particular constitutional framework of a given jurisdiction. In the Hong Kong Special Administrative Region (HKSAR), the Court of Final Appeal has developed a line of jurisprudence that explains under which circumstances the Government of Hong Kong (Government) may seek to limit the free speech provisions contained within the Basic Law, Hong Kong's quasi-constitution. In its fight against ‘localists,’ however, rather than legislating a clear speech restriction that is consistent with this jurisprudence, the Government has instead attempted to suppress unwelcome political speech in …

State Constitutionalism In The Age Of Party Polarization, Neal Devins

Faculty Publications

No abstract provided.

The Territorial Reach Of Federal Courts, A. Benjamin Spencer

Faculty Publications

Federal courts exercise the sovereign authority of the United States when they assert personal jurisdiction over a defendant. As components of the national sovereign, federal courts' maximum territorial reach is determined by the Fifth Amendment's Due Process Clause, which permits jurisdiction over persons with sufficient minimum contacts with the United States and over property located therein. Why, then, are federal courts limited to the territorial reach of the states in which they sit when they exercise personal jurisdiction in most cases? There is no constitutional or statutory mandate that so constrains the federal judicial reach. Rather, it is by operation …

Authors’ Response: An Enquiry Concerning Constitutional Understanding, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

One of Professor Lawson’s first students, alluding to a 1985 article with the provocative title “Why Professor [Marty] Redish Is Wrong about Abstention,” declared that his ambition was to inspire someone to write an article entitled “Why [the student] Is Wrong about XXX.” The student claimed that, regardless of what filled in the “XXX,” this event would be the pinnacle of academic accomplishment.

If that view is even close to the mark, then having an entire conference devoted to explaining why Professors Lawson and Seidman are wrong about the Constitution is an extraordinary honor. In all seriousness, we are genuinely …

Fiduciary Constitutionalism: Implications For Self-Pardons And Non-Delegation, Ethan J. Lieb, Jed Handelsman Shugerman

Faculty Scholarship

The idea that public servants hold their offices in trust for subject-beneficiaries and that a sovereign's exercise of its political power must be constrained by fiduciary standards-like the duties of loyalty and care-is not new. But scholars are collecting more and more evidence that the framers of the U.S. Constitution may have sought to constrain public power in ways that we would today call fiduciary. In this article, we explore some important legal conclusions that follow from fiduciary constitutionalism.

After developing some historical links between private fiduciary instruments and state and federal constitutions, we opine on what a fiduciary constitution …

Hak Uji Materiil Peraturan Daerah Pajak Dan Retribusi Daerah, Adrian Joshua Lumban Tobing

Jurnal Hukum & Pembangunan

Legislation set two mechanisms of review or oversight of local regulations, the executive and judicial review. Executive authority to oversee the review of local regulations is owned by the government (executive power), while the judicial review of the authority overseeing local regulation held by the Supreme Court (judicial power). Both of these mechanisms may lead to the cancellation rules of the regulation is contrary regional. Research districts/cities were canceled by the Minister of domestic affairs who then filed a judicial review to the Supreme Court and its effect on empowerment regional. Approach used are normative and case studies. Secondary data …

Putusan Sela Dalam Perkara Perselisihan Hasil Pemilihan Umum, Bisariyadi -

Jurnal Hukum & Pembangunan

This paper departs from the presumption of common misconception in the use of terms as adopted in criminal and civil law. Interlocutory decision in the Constitutional Court has a different definition from criminal and civil law procedure. The difference is within the issue that is cover between the two. Interlocutory decisions in criminal and civil law deals only as far as admissability and jurisdiction, where in the Constitutional Court interlocutory decisions may actually related to the legal issues brought by the party. In addition, as the experience shows that interlocutory decisions are not only used as burden of proof but …

June 29, 2019: All Our Problems Are Related, Bruce Ledewitz

Hallowed Secularism

Blog post, “All Our Problems are Related“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

June 27, 2019: Sohrab Ahmari Doesn’T Believe In God, Bruce Ledewitz

Hallowed Secularism

Blog post, “Sohrab Ahmari Doesn’t Believe in God“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Symposium: In “Gundy Ii,” Auer Survives By A Vote Of 4.6 To 4.4, Michael Herz

Online Publications

Under the “Auer doctrine,” named for the 1997 decision Auer v. Robbins, courts accept an agency’s interpretation of its own ambiguous regulation unless that interpretation is clearly erroneous, or flatly inconsistent with the text of the regulation, or unreasonable, or something like that. Auer is a principle of long standing. Just how long is one of the sources of disagreement in Kisor v. Wilkie, but however you count, it is a doctrine universally understood as well-settled until relatively recently. But a revolt has been brewing.