Constitutional Law Commons^™

Rethinking The Federal Indian Status Test: A Look At The Supreme Court's Classification Of The Freedmen Of The Five Civilized Tribe Of Oklahoma, Clint Summers

American Indian Law Journal

No abstract provided.

The Tribal Franchise: An Expression Of Tribal Sovereignty And A Potential Solution To The Problem Of Mass Disenrollment, Brent Mulvaney

American Indian Law Journal

No abstract provided.

August 2017 - August 2018 Case Law On American Indians, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Brief Of Amici Curiae Law Professors In Support Of Respondent Affluere Investments, Inc., Tenn. Wine & Spirits Retailers Ass'n V. Blair, No. 18-96 (U.S. Dec. 20, 2018)., Richard L. Aynes, James W. Ely Jr., Richard A. Epstein, Christopher R. Green, Ilya Somin, Rebecca E. Zietlow

Con Law Center Amicus Briefs

This case concerns whether a State may forbid United States citizens from plying a lawful trade based purely on the duration of their in-state residency. Tennessee law permits the retail sale of alcohol by anyone holding a state-issued retailer’s license. See Tenn. Code Ann. § 57-3-204. But the law restricts both the grant and renewal of such licenses based on the duration of an applicant’s Tennessee residency. See id. §§ 57-3-204(b)(2)(A), (3)(A)–(B), (3)(D). The Sixth Circuit held that those restrictions violate the negative (also known as the dormant) Commerce Clause and severed them from the rest of the statute. See …

Standing To Appeal At The Federal Circuit: Appellants, Appellees, And Intervenors, Matthew J. Dowd, Jonathan Stroud

Catholic University Law Review

The America Invents Act of 2011 created three administrative patent review regimes that have flooded the rechristened Patent Trial and Appeal Board with almost 7,000 new matters in just under five years. The flood of matters—primarily, inter partes reviews (IPRs)—has led to more than 1,000 appeals to the U.S. Court of Appeals for Federal Circuit from administrative proceedings, eclipsing any other forum of origin. With the flood of administrative appeals, questions of first instance on appellate standing have arisen, resulting in a handful of important panel decisions.

While the other regional Courts of Appeals have largely adopted legal tests, standards, …

December 18, 2018: The Continuing Disintegration Of Politics In America, Bruce Ledewitz

Hallowed Secularism

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

A Constitutional Hope: An Alternative Approach To The Right Of Privacy And Marijuana Laws Using Argentina As An Example, Kevin E. Szmuc

University of Miami International and Comparative Law Review

No abstract provided.

Brackeen V. Zinke, Bradley E. Tinker

Public Land & Resources Law Review

In 1978, Congress enacted the Indian Child Welfare Act to counter practices of removing Indian children from their homes, and to ensure the continued existence of Indian tribes through their children. The law created a framework establishing how Indian children are adopted as a way to protect those children and their relationship with their tribe. ICWA also established federal standards for Indian children being placed into non-Indian adoptive homes. Brackeen v. Zinke made an important distinction for the placement preferences of the Indian children adopted by non-Indian plaintiffs; rather than viewing the placement preferences in ICWA as based upon Indians’ …

The Rational Basis Test And Why It Is So Irrational: An Eighty-Year Retrospective, James M. Mcgoldrick Jr.

San Diego Law Review

The Rational Basis test is one of the most common and yet perhaps the most insignificant United States Supreme Court test in the history of the constitution, yet year in year out clients and lawyers will submit another brief hoping against hope that this time there might be a meaningful outcome. There will not be.

This article attempts to explain why the rational basis test is so irrational in its outcome, why basic interests are disregarded in the name of judicial respect for the legislative process, and how easy it would be for there to be a better outcome. The …

Other Lands And Other Skies: Birthright Citizenship And Self-Government In Unincorporated Territories, John Vlahoplus

William & Mary Bill of Rights Journal

No abstract provided.

The Esquire Case: A Lost Free Speech Landmark, Samantha Barbas

William & Mary Bill of Rights Journal

No abstract provided.

A Reparative Justice Approach To Assessing Ancestral Classifications Aimed At Colonization’S Harms, Susan K. Serrano

William & Mary Bill of Rights Journal

No abstract provided.

The Superior Solution To The “Denominator Problem” — Comparing The Majority And Dissent’S Property Benchmark Tests In Murr V. Wisconsin With A Focus On Property Owners’ Reasonable Expectations, Rosemary K. Mcguirk

William & Mary Bill of Rights Journal

No abstract provided.

The Father Of Modern Constitutional Liberalism, John Lawrence Hill

William & Mary Bill of Rights Journal

No abstract provided.

Who’S Your Sovereign?: The Standing Doctrine Of Parens Patriae & State Lawsuits Defending Sanctuary Policies, Lexi Zerrillo

William & Mary Bill of Rights Journal

No abstract provided.

December 14, 2018: What Will Post-Christianity Look Like?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Will Post-Christianity Look Like?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Plus Ça Change: A Century-Old Removal For Cause, Michael E. Herz

Online Publications

Lots of ink has been spilled over when Congress can give federal officials for-cause protection. One would think that a necessary antecedent to that discussion would be a determination of exactly what for-cause protection entails. What is “inefficiency, neglect of duty, or malfeasance in office”? Yet no one knows; the debate over the permissibility of that restriction proceeds in blissful uncertainty as to its scope.

Education Reform And Detroit’S Right To Literacy Litigation, Kristine L. Bowman

Washington and Lee Law Review Online

Ongoing education reform litigation arising out of Detroit, Michigan presents an innovative claim: Children have an unenumerated federal constitutional right of access to literacy. On June 29, 2018, the district court granted defendants’ motion to dismiss. The case is now on appeal to the Sixth Circuit and is expected to be argued in the first half of 2019. This litigation has already broken new ground and, regardless of the ultimate outcome, it is valuable because it invites us to revisit fundamental questions about rights, remedies, and the role of courts in education reform.

Rwu First Amendment Blog: David Logan's Blog: Recognizing The Free Press In The Crosshairs Across The Globe 12-12-2018, David A. Logan

Life of the Law School (1993- )

No abstract provided.

President Trump’S Unilateral Attempt To Cease All Implementation Of The Paris Agreement And To Withdraw From It: Constitutional?, Phillip M. Kannan

Pace Environmental Law Review

In his announcement, President Trump stated that he would comply with the withdrawal provision in the Paris Agreement. This Essay argues that, while compliance with that process may satisfy the treaty obligation, it probably does not conform to U.S. constitutional standards, and therefore, would not be binding on the United States. The argument demonstrating the failure of the President to satisfy constitutional standards proceeds as follows. Part I develops the context in which the Paris Agreement arose. Part II briefly summarizes the Paris Agreement. In Part III, I argue that President Trump’s attempt to cease implementation of the Paris Agreement …

December 10, 2018: The Democrats’ God Problem, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Democrats’ God Problem“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

December 7, 2018: Needed: A Party Of Democracy, Bruce Ledewitz

Hallowed Secularism

Blog post, “Needed: A Party of Democracy“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Future Of Freedom Of Expression Online, Evelyn Mary Aswad

Duke Law & Technology Review

Should social media companies ban Holocaust denial from their platforms? What about conspiracy theorists that spew hate? Does good corporate citizenship mean platforms should remove offensive speech or tolerate it? The content moderation rules that companies develop to govern speech on their platforms will have significant implications for the future of freedom of expression. Given that the prospects for compelling platforms to respect users’ free speech rights are bleak within the U.S. system, what can be done to protect this important right? In June 2018, the United Nations’ top expert for freedom of expression called on companies to align their …

State Ex Rel. Holmes V. Gainer: The Legislative Pay Raise And The Disappearing West Virginia Constitution, Matthew L. Clark

West Virginia Law Review

No abstract provided.

State V. Second Judicial Dist. Court. (Hearn (Matthew)), 134 Nev. Adv. Op. 96 (Dec. 6, 2018) (En Banc), Taylor Buono

Nevada Supreme Court Summaries

The Court affirmed the district court’s decision and held that the prosecutorial consent provision in NRS 176A.290 violated the Nevada Constitution’s separation of powers doctrine. Furthermore, the Court struck the offending language, finding that the provision could be severed from the statute without impacting the legislature’s intent.

Professional Responsibility As A Limitation On Executive Power, Melissa Mortazavi

Other Faculty Publications

No abstract provided.

The Pope And The Capital Juror, Aliza Plener Cover

Articles

In a significant change to Catholic Church doctrine, Pope Francis recently declared that capital punishment is impermissible under all circumstances. Counterintuitively, the Pope’s pronouncement might make capital punishment less popular but more prevalent in the United States. This Essay anticipates this possible dynamic and, in so doing, explores how “death qualification” of capital juries can insulate the administration of the death penalty when community morality evolves away from capital punishment.

The Obama Judge And The Foundations Of The Rule Of Law, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

December 1, 2018: "I Retired", Bruce Ledewitz

Hallowed Secularism

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

Challenging Federalism: How The States’ Loud Constitutional Provocation Is Being Met With Silence, Jennifer M. Haidar

Journal of Legislation

No abstract provided.