Constitutional Law Commons^™

Universal Human Rights And Constitutional Change, David Sloss, Wayne Sandholtz

William & Mary Bill of Rights Journal

Scholars have written volumes about the dramatic constitutional changes that occurred in the United States in the decades after World War II. Several leading scholarly accounts adopt an internal perspective, focusing primarily on domestic factors that drove constitutional change. Other scholars adopt a more transnational perspective, linking domestic constitutional change in the United States to Cold War politics, or to the rise of totalitarianism. This Article builds on the work of scholars like Mary Dudziak and Richard Primus who have emphasized the transnational factors that contributed to constitutional change in the United States. However, our account differs from both Dudziak …

In Defense Of Hybrid Representation: The Sword To Wield And The Shield To Protect, Kelly Rondinelli

William & Mary Bill of Rights Journal

No abstract provided.

Broken Platforms, Broken Communities? Free Speech On Campus, Stephen M. Feldman

William & Mary Bill of Rights Journal

Free speech disputes have broken out on numerous college and university campuses. In several incidents, protesters have attempted to block the presentations of well-known and controversial speakers who threaten the communal status of societal outsiders. These events have sparked not only widespread media coverage but also the publication of multiple scholarly books and articles. None of this scholarship, however, has recognized that the interrelated histories of free expression and democracy can shed considerable light on these matters. This Article takes on that challenge. Specifically, this Article explores the ramifications of the historical interrelationship between free expression and democracy for campus …

Prior Restraint In The Digital Age, Ariel L. Bendor, Michal Tamir

William & Mary Bill of Rights Journal

In this Article we argue that the digital revolution requires a reshaping of the Doctrine of Prior Restraint, which prohibits the implementation of any regulations that prevent the publication of speech prior to its distribution. We describe the prohibition on prior restraint of speech, its rationales and its exceptions; present the characteristics of the media in the digital age; suggest that the traditional design of the Doctrine does not fit these characteristics; and describe the reshaping that we propose in order to adapt the Doctrine to the age of the Internet and social networking.

The Genetic Information Nondiscrimination Act At Age 10: Gina’S Controversial Assertion That Data Transparency Protects Privacy And Civil Rights, Barbara J. Evans

William & Mary Law Review

The genomic testing industry is an edifice built on data transparency: transparent and often unconsented sharing of our genetic information with researchers to fuel scientific discovery, transparent sharing of our test results to help regulators infer whether the tests are safe and effective, and transparent sharing of our health information to help treat other patients on the premise that we gain reciprocity of advantage when each person’s health care is informed by the best available data about all of us. Transparency undeniably confers many social benefits but creates risks to the civil rights of the people whose genetic information is …

The Federal Courts’ Rulemaking Buffer, Jordan M. Singer

William & Mary Law Review

Procedural rulemaking is often thought of as a second-order task for the federal court system, relevant to the courts’ work but not essential to their function. In reality, rulemaking plays an integral role in the court system’s operation by actively insulating the courts from environmental pressure. This Article explains how power over procedural rulemaking protects the federal courts from environmental uncertainty and describes the court system’s efforts to maintain the effectiveness of the rulemaking buffer in response to historical and contemporary challenges.

State Regulations Are Failing Our Children: An Analysis Of Child Marriage Laws In The United States, Rachel L. Schuman

William & Mary Law Review

No abstract provided.

Gamble V. United States: A Commentary, Kayla Mullen

Duke Journal of Constitutional Law & Public Policy Sidebar

Under the judicially created dual-sovereignty exception, a defendant may be prosecuted by state and federal governments for the same conduct, due to the fact that the state and federal government constitute two separate sovereignties. The doctrine is grounded in the idea that each sovereign derives its power from independent sources—the federal government from the Constitution and the states from their inherent police power, preserved to them by the Tenth Amendment—and thus, each sovereign may determine what constitutes an offense against its peace and dignity in an exercise of its own sovereignty. Under this exception, defendants, by a single act, may …

Controversy And The Death Penalty, Samantha Pineo

Across the Bridge: The Merrimack Undergraduate Research Journal

The Declaration of Independence guarantees a right to life that was given by a creator. The Constitution guarantees a right to life, which can be found in both the explicit text itself as well as in between the lines. After looking at the founding documents through the lens of a moral reading, examining the case law, and reviewing the process of execution itself, it becomes clear that the death penalty violates one’s inalienable right to life, and is, in fact, a cruel and unusual punishment.

Conditionality And Constitutional Change, Felix B. Chang

Faculty Articles and Other Publications

The burgeoning field of Critical Romani Studies explores the persistent subjugation of Europe’s largest minority, the Roma. Within this field, it has become fashionable to draw parallels to the U.S. Civil Rights Movement. Yet the comparisons are often one-sided; lessons tend to flow from Civil Rights to Roma Rights more than the other way around. It is an all-too-common hagiography of Civil Rights, where our history becomes a blueprint for other movements for racial equality.

To correct this trend, this Essay reveals what American scholars can learn from Roma Rights. Specifically, this Essay argues that the European Union’s Roma integration …

Scrutinizing Anticompetitive State Regulations Through Constitutional And Antitrust Lenses, Daniel A. Crane

Articles

State and local regulations that anticompetitively favor certain producers to the detriment of consumers are a pervasive problem in our economy. Their existence is explicable by a variety of structural features—including asymmetry between consumer and producer interests, cost externalization, and institutional and political factors entrenching incumbent technologies. Formulating legal tools to combat such economic parochialism is challenging in the post-Lochner world, where any move toward heightened judicial review of economic regulation poses the perceived threat of a return to economic substantive due process. This Article considers and compares two potential tools for reviewing such regulations—a constitutional principle against anticompetitive parochialism …

A Second Opinion: Can Windsor V. United States Survive President Trump’S Supreme Court?, Artem M. Joukov

Journal of Law and Policy

This Article examines President Donald Trump’s recent recomposition of the United States Supreme Court and the potential effects on Windsor v. United States and its progeny. The Article considers whether the shifting balance of the Court may lead to reconsideration of Windsor, particularly via attempted exploits of the weaknesses in the standard of review applied to reach the decision. The Article will conclude that while revolutionary, Windsor lacked the doctrinal clarity of its offspring, Obergefell v. Hodges, and therefore may be at greatest risk of reversal by the increasingly conservative Court. In particular, the Court may rely on the conflict …

When Death Becomes An Option: How Aedpa’S Opt-In Provisions Will Violate The Constitutional Rights Of Habeas Corpus Petitioners, Alexander Brock

Journal of Law and Policy

For centuries, the writ of habeas corpus has allowed imprisoned men and women to challenge the validity of their detention as the final source of relief from criminal sentences. For those convicted of the death penalty, it is the last resource standing between life and death. Despite its monumental significance in America’s legal history, the “Great Writ” was dealt a devastating blow with the introduction of the Antiterrorism and Effective Death Penalty Act (“AEDPA”) of 1996. Designed to expedite the legal processes from sentencing to execution, AEDPA drastically limited the avenues of relief sought by habeas petitioners. Yet, the law …

If The Shoe Fits: Rethinking Minimum Contacts And The Fsia Commercial Activity Exception, Jacqueline M. Fitch

Washington and Lee Law Review Online

The question explored in this Note is whether, under the direct effect clause of the Foreign Sovereign Immunities Act commercial activities exception, a foreign sovereign must have minimum contacts with the United States in order for a U.S. court to assert personal jurisdiction over the entity. Examining personal jurisdiction over foreign states under the direct effect clause requires exploring the interaction between constitutional law and principles of international law. The minimum contacts analysis highlights the tension between applying constitutional due process protection to a foreign state, while simultaneously asserting jurisdiction over its commercial activities. Denying jurisdiction over a foreign sovereign …

A Perfect Storm: Religion, Sex, And Administrative Law, Helen M. Alvare

St. John's Law Review

(Excerpt)

In order to propose a way forward toward better sexual and reproductive health regulation, which also avoids undercutting or crossing swords with religion, this Article will proceed as follows: Part I will paint with a broad brush the current state of sexual and reproductive health problems in the United States, focusing a bit upon younger Americans to whom SRA programs are addressed. It will highlight disparities according to race and socioeconomic conditions when these obtain. These are troubling on their face, but particularly troubling today at a time of perceived heightened racial and socioeconomic class tension in the United …

May 4, 2019: Why Study Talmud?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why Study Talmud?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Equal Rights Amendment: Why All U.S. States Have Not Ratified, Gina Tan, Mirren Galway

CURCE Annual Undergraduate Conference

Currently, enacted legislation for the equality of men and women in the United States does not exist. Despite many advancements, as of 2018, the equality of men and women is not explicitly stated in the U.S. constitution. There is a long history of discrimination against women in the U.S., and for some time now, there have been pushes toward constitutionalizing equality based on Sex. One such push came in 1923, shortly after women were granted the right to vote and The Equal Rights Amendment (ERA) was introduced. This amendment mandates that the “Equality of rights under the law shall not …

Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie, Remedies, And Trade Secrets, Camilla A. Hrdy

ConLawNOW

At “Erie at Eighty: Choice of Law Across the Disciplines,” I learned a lot from my colleagues on the intellectual property law panel. I also learned a lot from remedies expert Professor Michael Morley. Professor Morley argued quite vociferously that federal courts have wrongly been applying federal rules in deciding whether to grant injunctions for state law claims in diversity cases. In other words, federal courts regularly violate the Erie doctrine.

This has some fascinating implications for trade secret law. Prior to federalization, when plaintiffs could only bring state civil trade secret claims, federal courts in diversity cases naturally …

Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie Doctrine, State Law, And Civil Rights Litigation, Alexander A. Reinert

ConLawNOW

How should state law questions and claims be resolved when they arise in federal civil rights litigation? In prior work, I have criticized the given wisdom that the Erie doctrine, while originating in diversity cases, applies in all cases whatever the basis for federal jurisdiction. In that work, I proposed a framework, “Erie Step Zero,” to place Erie questions in their jurisdictional context. As I have argued, the concern with forum shopping and unequal treatment that prompted Erie have less salience in federal question cases. Different concerns emerge when one focuses on the presence of state law issues in …

Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: An Erie Approach To Privilege Doctrine, Megan M. La Belle

ConLawNOW

Privilege rules, which determine whether information is discoverable in a particular litigation, often vary from jurisdiction to jurisdiction. Consequently, the Erie doctrine and other choice-of-law principles play an important role in shaping privilege law. This essay, written for the Sixth Annual Constitutional Law Conference at the University of Akron School of Law, considers two recent privilege cases—HannStar Display Corp. v. Sony Electronics, Inc. and In re Silver—which involved the California mediation privilege and the federal patent-agent privilege, respectively. While the HannStar court ignored well-established choice-of-law principles, the Silver decision shows that, when applied and interpreted appropriately, doctrines …

Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie'S Intellectual History, Craig Green

ConLawNOW

Erie R.R. v. Tompkins is an iconic case in American law, and it has held that status for a very long time. One byproduct of such longevity is that the decision’s meaning and context have changed dramatically through the ages. Indeed, the sheer variability of Erie’s interpretations helps to explain why the decision has remained such an important, controversial, and influential feature of American legal thought for eighty years. This essay offers a brief and schematic account of Erie’s intellectual history, while also offering cautionary signals about Erie’s most recent group of interpreters. Even for observers who might endorse Erie’s …

Symposium: Erie At Eighty: Choice Of Law Across The Disciplines: Erie As A Way Of Life, Ernest A. Young

ConLawNOW

This essay—presented as the keynote address to the University of Akron School of Law’s conference on “Erie at 80”—considers the impact of the Supreme Court’s decision in Erie Railroad Co. v. Tompkins on the broader landscape of American law. I begin with Erie’s contribution to our modern, positivist understanding of the nature of law. That understanding, however, is under threat from pervasive tendencies, on both the political Left and Right, to collapse the distinction between law as a set of positivist choices adopted by government and law as the principles that we think are just, right, and true. …

Symposium: 50 Years With The 25th Amendment: The Twenty-Fifth Amendment: Its Crafting And Drafting Process, John D. Feerick

ConLawNOW

The Twenty-fifth Amendment’s development occurred over a period of ten years, from 1955 to 1965. This historic effort addressed questions raised but not answered at the Constitutional Convention of 1787 as to what constitutes “presidential inability” and who is authorized to determine its existence. This article is a response to the enormous interest in the amendment that has emerged between 2017 and 2019. Many accounts of what the amendment provided for and what was intended by its language appeared in the media and writings during this period. The article takes the reader through the step by step development of the …

Litigating War: The Justiciability Of Executive War Power, Chris Smith

Duke Journal of Constitutional Law & Public Policy Sidebar

Courts frequently dismiss claims against the Executive’s use of the war power as being non-justiciable political questions. This lack of a judicial check has created a situation in which meaningful checks and balances on the war power are found only in the Executive Branch itself. But the Constitution places the bulk of war powers in the hands of Congress. Executive usurpation of Congress’s constitutional prerogative to initiate hostilities has significantly weakened the separation of powers. In the aftermath of the Vietnam War, Congress sought to reassert its constitutional authority over war-making decisions by passing the War Powers Resolution. The Resolution …

Reframing The Affirmative Action Debate To Move Beyond Arguments For Diversity And Interest Convergence, Adrian Jamal Mclain, Steven L. Nelson

Barry Law Review

No abstract provided.

The Thirteenth Amendment: Modern Slavery, Capitalism, And Mass Incarceration, Michele Goodwin

Cornell Law Review

Slavery's preservation in the United State can-in part-be explained by its fluid transformations, which continuously exacted economic gains, preserved southern social order, and inured benefits to private parties as well as the state. These transformations did not outpace law. Rather, the rule of law in the south and lawlessness among local law enforcement frequently accommodated these transformations and innovations. Historically, efforts to stamp out the myriad forms of slavery-convict leasing, peonage, contract transfers, so-called "apprenticeships," and chain gangs-frequently fell short because of local collusion and complicity, weak federal interventions and protections, and violence. The specter of lynching, which included the …

The Case For Contraceptives: The Legislative History Of The Aca’S Birth Control Mandate, Julia Grant

Venture: The University of Mississippi Undergraduate Research Journal

This paper seeks to outline the legislative and judicial history of the Affordable Care Act’s contraception coverage mandate. It begins by explaining the justifications and specifications of the provision. It then highlights the three phases of litigation that have surrounded the mandate: closely held, for-profit companies; religious nonprofit organizations; and state attorney generals. This paper provides context for the litigation by describing the opposing stances towards the mandate of the Obama and Trump Administrations and the different modifications to the provision made under each administration. In the wake of last week’s finalization of the controversial rules the Trump Administration issued, …

Prosecutors At The Periphery, Peter M. Shane

Chicago-Kent Law Review

Contrary to so-called unitary executive theory, Article II does not guarantee presidents the power to control federal criminal prosecution, a supervisory role Congress has placed by statute with the Attorney General. Nor is Congress without authority to protect federal prosecutors from policy-based dismissals. Rule-of-law values embodied in our system of checks and balances could alone justify these conclusions. But the same conclusions follow also from close attention to the entirety of the relevant constitutional text and from an understanding of how the Founding generation would have understood the relationship between executive power and criminal prosecution. In contemplating the newly proposed …

The Twenty-Fifth Amendment: Incapacity And Ability To Discharge The Powers And Duties Of Office?, Lawrence J. Trautman

Cleveland State Law Review

History provides many instances of U.S. presidential or vice presidential incapacity. It was the death of President John F. Kennedy that prompted the 25th Amendment to the Constitution to gain ratification in 1967, in part to establish a method to fill the vice presidency if it became vacant. On Saturday morning September 22, 2018, readers of The New York Times awoke to read a page-one story about how the Deputy Attorney General Rod J. Rosenstein had previously advocated the secret White House recording of President Trump “to expose the chaos consuming the administration, and he discussed recruiting cabinet members to …

Lactose’S Intolerance: The Role Of Manufacturers’ Rights And Commercial Free Speech In Big Dairy’S Fight To Restrict Use Of The Term “Milk”, Kathleen Justis

Brooklyn Law Review

This note examines the relationship between restrictions on commercial speech and manufacturers’ First Amendment right to describe their products to consumers, with a focus on the DAIRY PRIDE Act. It argues that broad, content-based restrictions of commercial speech, like that proposed in the DAIRY PRIDE Act, likely impose unconstitutional limitations on manufacturers’ First Amendment right to freedom of speech. This note recommends that both Congress and the FDA should refrain from passing a statute or promulgating a regulation like the DAIRY PRIDE Act. Rather, it proposes that adding rules to control the proportions and location of disclaimers on product labels …