Constitutional Law Commons^™

"Good Reason" Laws Under The Gun: May-Issue States And The Right To Bear Arms, Jack M. Amaro

Chicago-Kent Law Review

This note proposes a framework for analyzing the point at which discretionary restrictions on the concealed carry of firearms are unconstitutional under the Second Amendment, which, at its core, guarantees the responsible, law-abiding citizen at least the right to use a firearm for self-defense. Although the Supreme Court has yet to affirmatively answer whether and to what extent this right extends beyond the home, every state allows its residents to publicly carry a firearm in some form—be it open or concealed. But states have the power to limit who may exercise this right; and some states curtail it to the …

President Trump's Big Beautiful Wall: Discrimination, Eminent Domain, And The Public Use Requirement, Meghan K. Tierney

Chicago-Kent Law Review

At a press conference held in Trump Tower New York City on June 16, 2015, Donald Trump announced his candidacy for President of the United States by promising to expand the border wall along the Southern United States. President Trump has insisted that his only reasons behind completely separating the United States from Mexico are to curtail illegal immigration and curb drug cartel activity, but many argue that his statements indicate a much more sinister motive based in racial discrimination. The public use requirement of the Fifth Amendment Takings Clause allows the federal government to take private land for the …

Consequences For Patent Owners If A Patent Is Unconstitutionally Invalidated By The Patent Trial And Appeal Board, Mark Magas

Chicago-Kent Law Review

There have been many constitutional challenges against the Patent Trial and Appeal Board (“PTAB”) since it was created by the America Invents Act in 2011. While the merits of these challenges have been widely debated, there has been little analysis of what would happen if one of these challenges succeeded and patents are found to have been unconstitutionally invalidated. This note examines how issues with waiver, retroactivity, and finality may prevent patent owners from getting their patent rights back, considering the type of constitutional challenge and the different stages of the PTAB process. While the odds are stacked against patent …

Clarifying The Scope Of The Self-Incrimination Clause: City Of Hays V. Vogt, Samantha Ruben

Chicago-Kent Law Review

Three months after oral arguments, the Supreme Court dismissed the writ of certiorari in City of Hays v. Vogt as improvidently granted. The question in Vogt was whether the Fifth Amendment right against self-incrimination is violated when incriminating statements are used at a probable cause hearing, as opposed to a criminal trial. As a result of the “DIG,” the Court left a circuit split unresolved surrounding the meaning of a “criminal case” within the Fifth Amendment’s Self-Incrimination Clause.

This note argues that the Supreme Court should not have dismissed Vogt and should have decided that the Fifth Amendment right against …

February 2, 2019: Leaver Agriculture, Bruce Ledewitz

Hallowed Secularism

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

The State Of The Death Penalty, Ankur Desai, Brandon L. Garrett

Notre Dame Law Review

The death penalty is in decline in America and most death penalty states do not regularly impose death sentences. In 2016 and 2017, states reached modern lows in imposed death sentences, with just thirty-one defendants sentenced to death in 2016 and thirty-nine in 2017, as compared with over three hundred per year in the 1990s. In 2016, only thirteen states imposed death sentences, and in 2017, fourteen did so, although thirty-one states retain the death penalty. What explains this remarkable and quite unexpected trend? In this Article, we present new analysis of state-level legislative changes that might have been expected …

The Fundamental Right To Education, Derek W. Black

Notre Dame Law Review

New litigation has revived one of the most important questions of constitutional law: Is education a fundamental right? The Court’s previous answers have been disappointing. While the Court has hinted that it might recognize some minimal right to education, it has thus far refused to do so.

To recognize a fundamental right to education, the Court would have to overcome two basic problems. First, the Court needs an originalist theory for why our Constitution protects education, particularly since the word education does not even appear in the Constitution. Second, the right to education implicates complex questions regarding its scope. Those …

Antidiscrimination Laws And The Administrative State: A Skeptic's Look At Administrative Constitutionalism, David E. Bernstein

Notre Dame Law Review

This Article discusses why administrative agencies charged with enforcing antidiscrimination legislation while implicitly undertaking administrative constitutionalism tend to be inconsiderate of constitutional limitations on government authority in general, and especially of the limitations imposed by the First Amendment’s protection of freedom of expression.

To establish the existence and contours of the problem, Part I of this Article provides context by recounting several detailed examples of how federal, state, and local civil rights agencies have favored broad antidiscrimination enforcement over countervailing constitutional doctrines that impose limits on regulatory authority. These examples include the U.S. Department of Education’s Office of Civil Rights’ …

The Demise Of § 1983 Malicious Prosecution: Separating Tort Law From The Fourth Amendment, Erin E. Mcmannon

Notre Dame Law Review

The common-law tort of malicious prosecution originally developed to provide a remedy for plaintiffs who were unjustly prosecuted in a criminal proceeding. Today, malicious prosecution actions can be brought to redress wrongful civil actions as well. The “central thrust” of an action for malicious prosecution is a right not to be involved in an unjustified litigation.

This Note suggests that the confusion in this area of law derives from the use of the language of malicious prosecution tort law to describe what really amounts to a Fourth Amendment seizure claim under § 1983. There is no constitutional right to be …

Hush Don't Say A Word: Safeguarding Student's Freedom Of Expression In The Trump Era, Laura R. Mcneal

Georgia State University Law Review

The controversy surrounding NFL player Colin Kaepernick’s act of kneeling during the national anthem in protest of police brutality against people of color continues to permeate public discourse. In March 2017, President Trump referenced Colin Kaepernick’s symbolic act during a rally in Louisville, Kentucky, in an effort to illustrate his strong opposition to anyone kneeling during the national anthem. In this speech, President Trump stated that although many NFL franchise owners were interested in signing Colin Kaepernick, many were afraid of receiving a nasty tweet from him. Likewise, in another speech, President Trump stated, “I think it’s a great lack …

Weed Whacking Through The Tenth Amendment: Navigating A Trump Administration Threat To Withhold Funding From Marijuana-Friendly States, Arlen Gharibian

Loyola of Los Angeles Law Review

The Trump administration has taken a firm stance against marijuana legalization at the state level. While an official federal policy is still pending, this Article focuses on whether the Trump administration’s threats to preventCalifornia from pursuing its duly enacted marijuana legalization law violates the Tenth Amendment. This Article then addresses how the federal government could achieve its goal while remaining within the bounds of the Constitution.

Prohibitive Failure: The Demise Of The Ban On Sports Betting, John T. Holden

Georgia State University Law Review

On May 14, 2018, the Supreme Court of the United States struck down the federal prohibition on sports gambling. The sweeping opinion, authored by Justice Alito, ended more than a twenty-fiveyear- old policy that kept states from offering sports gambling, which confined sports betting almost entirely to illegal underground markets. Indeed, the sports betting prohibition is largely responsible for the growth of the illegal sports gambling market, which is now one of America’s twenty largest industries. The challenge to the federal Professional and Amateur Sports Protection Act was initially launched in 2012 when former U.S. Attorney and New Jersey Governor, …

Graffiti, Speech, And Crime, Jenny E. Carroll

Faculty Scholarship

Graffiti resides at the uncomfortable intersection of criminal law and free speech rhetoric. It is not the shout of revolution to the gathered, protesting masses, or the political pamphlet flung from a 1920s window. Graffiti is not the obscene-rendered-political-jacketed protest of war, or a flag set aflame in the name of reclaiming patriotism. It is an illicit scrawl. It is damage and defiance rolled into one from the moment of its creation. Graffiti is a crime.

Unlike more celebrated examples of free speech, graffiti earns no safe harbor from the First Amendment. When asked to choose between the tag that …

No Place For Speech Zones: How Colleges Engage In Expressive Gerrymandering, A. Celia Howard

Georgia State University Law Review

This note takes a critical look at the shortcomings of the current tests applied to speech zone litigation as well as the constitutional violations that occur when public schools carve out speech areas. Part I examines the evolution of First Amendment law in education, with a focus on university free speech zones. Part II analyzes the convoluted First Amendment jurisprudence, suggesting that the time, place, and manner test, typically used in conjunction with a forum analysis when examining the constitutionality of speech zones, allows universities to practice what is known as “expressive gerrymandering.” Finally, Part III proposes that courts eliminate …

Burning A Hole In The Pocket Of Justice: Prop. 66'S Underfunded Attempt To Fix California's Death Penalty, Flavia Costea

Loyola of Los Angeles Law Review

California has struggled with the administrative and financial burdens of a flawed death penalty system for decades. In an effort to save the death penalty, the voters of California enacted Proposition 66, which promised to deliver a quicker and more cost-effective system. This Article focuses on the provision of Prop. 66 that expands the number of lawyers who can act as defense lawyers for inmates on death row. While this provision superficially seems to solve the shortage of defense attorneys willing to take on death penalty cases, without significant funding, the shortage of resources and pressure to speed up executions …

Too Big For Personal Jurisdiction? A Proposal To Hold Companies Accountable For In-State Conduct In Accordance With Due Process Principles, Polina Pristupa

Cardozo Law Review

This Note discusses the potential negative effects that BMS can have on future plaintiffs' ability to sue large corporations in states where the corporations have a major presence but in which they are neither incorporated nor headquartered. Part I outlines the history of personal jurisdiction case law. Part II looks to the different approaches that the majority and dissenting opinions in BMS took in examining the question of jurisdiction. It also looks at the sliding scale test that the California Supreme Court used to allow the nonresident plaintiffs to sue within the state's courts. Section II.B then considers the effect …

Government Standing And The Fallacy Of Institutional Injury, Tara Leigh Grove

Faculty Publications

A new brand of plaintiff has come to federal court. In cases involving the Affordable Care Act, the Defense of Marriage Act, and partisan gerrymandering, government institutions have brought suit to redress “institutional injuries”—that is, claims of harm to their constitutional powers or duties. Jurists and scholars are increasingly enthusiastic about these lawsuits, arguing (for example) that the Senate should have standing to protect its power to ratify treaties; that the House of Representatives may sue to preserve its role in the appropriations process; and that the President may go to court to vindicate his Article II prerogatives. This Article …

Code Mixing As A Form Of Indonesian Identity Based On The Motto Of Bhinneka Tunggal Ika, Fajar Muhammad Nugraha

International Review of Humanities Studies

In 2018, the Language Comission of the Ministry of Education and Culture (Kemendikbud) of the Republic of Indonesia has made verification towards all the languages that exists in Indonesia. The verification conducted from 1991 to 2017 resulted in 652 languages to be found. That number still does not include the dialects and their sub-divisions of the 652 languages. Meanwhile, UNESCO recorded 143 languages based on their vitality status. Identity can be interpreted as similarity or unity with others in a certain area or other things (Rummens, 1993: 157-159). "The identity possessed by an individual can be in the form of …

January 29, 2019: How To Save American Democracy, Bruce Ledewitz

Hallowed Secularism

Blog post, “How to Save American Democracy“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 26, 2019: Why There Is No Left Federalist Society, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why There is No Left Federalist Society“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Shut Up. You Don't Even Go Here.* An Examination Of First Amendment Rights For Noncitizens, Samantha Chasworth

Journal of Civil Rights and Economic Development

(Excerpt)

Section I of this Note provides background information about Pineda Cruz et al v. Thompson et al and explains the government’s argument in its Motion to Dismiss. Section II explains the First Amendment, demonstrating what it is and explaining its fundamental nature. Section III argues that noncitizens are entitled to First Amendment rights, presenting the non-speakerbased composition and character of the First Amendment. Next, this section demonstrates the many fundamental rights that noncitizens currently have in an effort to show the hole left open for the First Amendment. Next, this section describes the enormous consequences of not providing First …

January 21, 2019: Why Wasn't Fukuyama Right?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why Wasn't Fukuyama Right?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 20, 2010: Love Driven Politics, Bruce Ledewitz

Hallowed Secularism

Blog post, “Love Driven Politics“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Lockett Symposium: For Sandra Lockett, Anthony G. Amsterdam

ConLawNOW

Tony Amsterdam, lead counsel for Sandra Lockett in the U.S. Supreme Court case Lockett v. Ohio, offers his reflections on the case.

Could The Pope's Call To End The Death Penalty Keep Catholics Off Juries?, Aliza Plener Cover

Articles

No abstract provided.

Slogans Appropriate To The Legacy Of Martin Luther King Jr., Theodore Walker

Perkins Faculty Research and Special Events

For printing signs, banners, posters, tee shirts, and bumper stickers (and for preaching sermons) that are appropriate to the legacy of Rev. Dr. Martin Luther King Jr., please consider the following slogans: ABOLISH WAR, ABOLISH POVERTY, AMEND THE CONSTITUTION, SUPPORT AN ECONOMIC BILL OF RIGHTS, JOBS FOR ALL, GUARANTEED INCOME FOR ALL, SUPPORT UNIVERSAL BASIC INCOME, and GOOD NEWS TO THE POOR - Luke 4:14-19.

January 15, 2019: What’S Wrong?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What’s Wrong?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

If Separation Of Church And State Doesn’T Demand Separating Religion From Politics, Does Christian Doctrine Require It?, Samuel W. Calhoun

Washington and Lee Law Review Online

This Essay responds to comments by Wayne Barnes, Ian Huyett, and David Smolin on my prior Article, Separation of Church and State: Jefferson, Lincoln, and the Reverend Martin Luther King, Jr., Show It Was Never Intended to Separate Religion From Politics. Part II, although noting a few disagreements with Huyett and Smolin, principally argues that they strengthen the case for the appropriateness of religious arguments in the public square. Part III evaluates Wayne Barnes’s contention that Christian doctrine requires separating religion from politics.

Texas V United States: The Affordable Care Act Is Constitutional And Will Remain So, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

On December 14, 2018, in a widely reported decision, a federal judge in Texas ruled that the entire Affordable Care Act (ACA) is unconstitutional. The judge reasoned that since the ACA’s “individual mandate” is unconstitutional, the rest of the law cannot stand without it. However, the ACA will remain in place pending appeal, and it is highly unlikely that this ruling will stand.

Rwu First Amendement Blog: Jared Goldstein's Blog: The First Amendment And The Foxy Lady 01-08-2019, Jared A. Goldstein

Law School Blogs

No abstract provided.