Constitutional Law Commons^™

Rwu First Amendment Blog: Jenna Wims Hashway's Blog: First Amendment Lets Officials Mute But Not Block Twitter Critics 10/09/2018, Jenna Wims Hashway

Law School Blogs

No abstract provided.

The Stored Communications Act: Property Law Enforcement Tool Or Instrument Of Oppression?, Raymond Boyce

West Virginia Law Review

No abstract provided.

Why Kavanaugh Should Not Attend The White House Ceremony, Michael Herz

Online Publications

Brett Kavanaugh is now Justice Kavanaugh. He has been nominated, confirmed and — in a private ceremony on Saturday conducted by Chief Justice John Roberts and the retired Justice Anthony Kennedy — sworn in. There is nothing left to do. So why is he scheduled to be at the White House on Monday evening for a public ceremony, one that President Trump has inaccurately called a “swearing-in ceremony”?

October 3, 2018: Judge Kavanaugh Doesn’T Have A Judicial Philosophy: Only Randy Barnett Does, Bruce Ledewitz

Hallowed Secularism

Blog post, “Judge Kavanaugh Doesn’t Have a Judicial Philosophy: Only Randy Barnett Does“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne R. Barnes

Washington and Lee Law Review Online

Professor Calhoun, in his Article around which this symposium is based, has asserted that it is permissible for citizens to publicly argue for laws or public policy solutions based on explicitly religious reasons. Calhoun candidly admits that he has “long grappled” with this question (as have I, though he for longer), and, in probably the biggest understatement in this entire symposium, notes that Professor Kent Greenawalt identified this as “a particularly significant, debatable, and highly complex problem.” Is it ever. I have a position that I will advance in this article, but I wish to acknowledge at the outset that …

America's Creed: The Inevitable, Sometimes Dangerous, Mixing Of Religion And Politics, David M. Smolin

Washington and Lee Law Review Online

Political and philosophical theorists have often advocated for the exclusion of some or all religious perspectives from full participation in politics. Such approaches create criteria—such as public accessibility, public reason, or secular rationale—to legitimate such exclusion. During the 1990s I argued, as an evangelical Christian, against such exclusionary theories, defending the rights to full and equal political participation by evangelical Christians, traditionalist Roman Catholics, and any others who would be restricted by such criteria.

Automatic Authorization Of Frisks In Terry Stops For Suspicion Of Firearms Possession, Royce De R. Barondes

Faculty Publications

The recognition in Heller of an individual right to bear arms has required courts to grapple with the interaction between exercise of this right in public and Terry stops. Core questions are (i) whether reasonable suspicion a person is armed is by itself sufficient to initiate a Terry stop and (ii), if so, whether such a stop inherently authorizes an accompanying frisk. The former issue is examined in a separate forthcoming article, Royce de R. Barondes, Conditioning Exercise of Firearms Rights on Unlimited Terry Stops, 54 Idaho L. Rev. 297.

This article focuses on the second issue. Most fundamentally, insofar …

Contumacious Responses To Firearms Legislation (Leosa) Balancing Federalism Concerns, Royce De R. Barondes

Faculty Publications

The Law Enforcement Officers Safety Act (LEOSA) is one of the handful of federal statutes that preempt state firearms regulation. It allows covered individuals (certain current and retired qualified law enforcement personnel) to possess firearms notwithstanding assorted state restrictions-to protect themselves and to supplement local law enforcement efforts.

The act reflects a careful legislative balancing of federalism concerns. Although it relies on states and localities to issue the authorizing credentials, it does not mandate states create a licensing regime out of whole cloth. The act ultimately presents issues requiring a nuanced assessment of the doctrine proscribing federal commandeering of the …

Telemarketing, Technology, And The Regulation Of Private Speech: First Amendment Lessons From The Fcc’S Tcpa Rules, Justin (Gus) Hurwitz

Brooklyn Law Review

This article considers the viability of the Telephone Consumer Protection Act (TCPA) in light of recent Supreme Court First Amendment precedent and technological and regulatory developments. Robocalls—phone calls made using autodialers or prerecorded messages without the consent of the call recipient—have become one of the primary consumer protection issues facing regulators. With more than 2.4 billion of these calls placed each month, consumer concern about them dominate complaints received by both the Federal Communications Commission and Federal Trade Commission. Simultaneously, as cellphones have become a ubiquitous means by which individuals engage with one another and have become the public square, …

Prisoner-To-Public Communication, Demetria D. Frank

Brooklyn Law Review

The pervasive problem of over-incarceration in the United States is in part due to lack of correctional facility accountability to the public, and public lack of access to the prisoner experience. In light of the incessant persistence of over-incarceration and “hands off approach” taken by courts in prison administration, this article proposes an unqualified and unfettered prisoner-to-public communication right that would provide prison accountability to the public.

Google, Charlottesville, And The Need To Protect Private Employees’ Political Speech, Chloe M. Gordils

Brooklyn Law Review

At a time when the freedom of speech is increasingly under attack, the question becomes: what protections are available to employees of private companies who wish to engage in political expression while off the clock? Although public employees are in many ways protected by the First Amendment from government intrusion into their political speech, private employees in many states are left largely unprotected. This note examines the current statutory protections offered to protect private employees from being fired or retaliated against based on their political opinions, and argues that the inconsistency and unpredictability of state laws call for a uniform …

A New Voting Rights Act For A New Century: How Liberalizing The Voting Rights Act’S Bailout Provisions Can Help Pass The Voting Rights Advancement Act Of 2017, Mario Q. Fitzgerald

Brooklyn Law Review

The U.S. Supreme Court struck down the coverage formula of the Voting Rights Act (VRA) in Shelby County. v. Holder in 2013. Members of Congress have attempted to renew the VRA with an updated coverage formula through the Voting Rights Advancement Acts of 2015 and of 2017. Unfortunately, Congressional Republicans have not supported either bill. Even if passed in its current form, the Supreme Court is likely to strike down the Voting Rights Advancement Act of 2017 (VRAA) for violating the principle of “equal sovereignty between the States” as set forth by the Court in Shelby County. Therefore, this note …

Essay: Injustice In Black And White: Eliminating Prosecutors’ Peremptory Strikes In Interracial Death Penalty Cases, Daniel Hatoum

Brooklyn Law Review

This essay advocates that prosecutors’ peremptory strikes should be eliminated in interracial capital cases. The application of the death penalty has a race problem, especially for interracial cases. A conviction is far more likely if the defendant is black and the victim is white. This is due to the fact that in interracial cases, prosecutors utilize peremptory strikes to prevent black jurors from serving on cases in which the defendant is black and the victim is white. This essay is the first to argue that such a system stacks the deck against defendants in interracial capital cases in an unconstitutional …

The Equal Protection Doctrine In The Age Of Trump: The Example Of Unaccompanied Immigrant Children, Rebecca A. Delfino

Brooklyn Law Review

The Equal Protection Doctrine—the right of equals to equality—has taken on renewed relevance since the 2016 federal election cycle. The values of equality and due process, expressed in the Fifth and Fourteenth Amendments of the United States Constitution, are currently under siege. Laws and institutions central to the core functions of the federal government have been dismantled, repealed, or ignored. In this climate, legislative and executive regulatory solutions are not viable, and the traditional means to remedy inequities and discrimination may no longer work. The only way to protect the long-held democratic value of equality is to challenge the actions …

The Unofficial Federal Officer, Megan M. Mclaughlin

UC Law Constitutional Quarterly

Most people can state who the first lady is, but no one can clearly explain what the first lady is. This silence, which stretches across all three branches of government, speaks volumes and leaves the first lady’s official constitutional status as an open question. Most discussions of this matter arose during the Clinton presidency in the context of Hillary Rodham Clinton’s role in her husband’s administration. The few legal academics who touched on the topic then have not revisited it despite the changing political and social landscape. This paper explores how the evolution of first ladies has made the legal …

The Outrageous Government Conduct Defense: An Interpretive Argument For Its Application By Scotus, Eve A. Zelinger

UC Law Constitutional Quarterly

The U.S. Supreme Court has held that the Due Process Clause protects defendants from Outrageous Government Conduct (“OGC”) via the OGC defense, but the Court has not yet been presented with a set of facts it believes warrants its application. As a result, the Court has not set forth such criteria for application of the OGC defense, leaving the lower courts to apply their own standards. While some critics contend there is no use for the OGC defense due to the availability of the entrapment defense, this Note will uncover why this is not the case. More specifically, this Note …

The President’S Role In The Administrative State: Rejecting The Illusion Of “Political Accountability”, Kevin Bohm

UC Law Constitutional Quarterly

Direct presidential control of executive agencies is a contentious issue in administrative law. This note first presents an overview of Constitutional basics, before exploring the unique twist on traditional presidential control theories that now-Justice Elena Kagan proposed in her 2001 article “Presidential Administration.” Kagan’s justification for enhanced presidential control rests a novel statutory interpretation perspective and the notion that the President is uniquely qualified to impose his will on agency decision-making as he is politically accountable to the American electorate at-large. This note highlights the criticisms, from other prominent academics in the field, of relying on political accountability to justify …

Judges Of Color: Examining The Impact Of Judicial Diversity In The Equal Protection Jurisprudence Of The United States Court Of Appeals For The Ninth Circuit, Kristine L. Avena

UC Law Constitutional Quarterly

From slavery to civil rights to affirmative action, America’s history has been plagued with the issue of race. The federal bench is no exception. For almost two centuries, the highest court of the nation did not represent the public that it served. This Note aims to determine how the presence of minority judges on the United States Court of Appeals for the Ninth Circuit impacts Equal Protection doctrine. This Note shows that a Ninth Circuit judge’s race is important in providing procedural and substantive contributions to the federal bench. Diverse judges use their life experiences to ensure that every person …

No “Market” For Truth: The Weaknesses Of Free Speech-Based Defenses To Credit Rating Industry Liability, Andy Carr

UC Law Constitutional Quarterly

Credit rating agencies are essential components of the global financial systems. The major CRAs primarily serve the financial systems as “gatekeepers,” in that their ratings determine whether a financial instrument is “investment grade” under federal and state laws, and as information-facilitators for the complicated instruments being bought and sold within the system. Because of their systemic significance, CRAs faced especially harsh scrutiny in the aftermath of the financial crisis and Great Recession a decade ago. Initial public scrutiny was followed by waves of litigation which resurfaced long-dormant questions about the CRAs’ exposure to liability and decades-old defenses of their rating …

Accusers As Adjudicators In Agency Enforcement Proceedings, Andrew N. Vollmer

University of Michigan Journal of Law Reform

Largely because of the Supreme Court’s 1975 decision in Withrow v. Larkin, the accepted view for decades has been that a federal administrative agency does not violate the Due Process Clause by combining the functions of investigating, charging, and then resolving allegations that a person violated the law. Many federal agencies have this structure, such as the Securities and Exchange Commission (SEC) and the Federal Trade Commission.

In 2016, the Supreme Court decided Williams v. Pennsylvania, a judicial disqualification case that, without addressing administrative agencies, nonetheless raises a substantial question about one aspect of the combination of functions at agencies. …

Ensuring That Punishment Does, In Fact, Fit The Crime, Meredith D. Mcphail

University of Michigan Journal of Law Reform

The United States imprisons a greater proportion of its own population than any other country in the world. A legal framework provides protections for those individuals who are incarcerated, but that framework is flawed. The jurisprudence distinguishes pretrial detainees (who have not been convicted) from convicted persons (who are serving a sentence). Based on that distinction, different standards apply to conditions of confinement and use of force cases brought by pretrial detainees and those brought by convicted persons. That distinction–and the resulting disparate application of legal standards–does not comport with the reality of incarceration, the concept of punishment, or the …

The Putative Problem Of Pestersome Paupers: A Critique Of The Supreme Court’S Increasing Exercise Of Its Power To Bar The Courthouse Doors Against In Forma Pauperis Petitioners, Jared S. Sunshine

UC Law Constitutional Quarterly

The Supreme Court has increasingly adopted the practice of categorically and prospectively barring its more prolific petitioners from proceeding in forma pauperis—that is, without paying a filing fee. The optics of closing the courtroom doors to those who cannot afford to pay are not particularly seemly; nonetheless, the Court has persevered in and expanded this practice dramatically over the years. In the beginning, however, the Court grappled thoughtfully with the wisdom of this practice in a series of disputatious decisions. The article revisits these arguments in light of American tradition and legal precedent of unfettered access to the courts and …

Piracy And Due Process, Andrew Kent

Michigan Journal of International Law

This article explores in depth the law of nations, English domestic law, and English government practice from the late medieval period through the eighteenth century, and the U.S. constitutional law and government practice during the Founding and antebellum periods. I conclude that Chapman’s claims about due process and piracy suppression are incorrect. Both Parliament and the U.S. Congress; both the Crown and its counselors and U.S Presidents and their advisers; both the Royal Navy and the U.S. Navy; and commentators both English and American believed that (1) pirates on the high seas could lawfully be subject to extrajudicial killing, but …

A Constitutional Case For Extending The Due Process Clause To Asylum Seekers: Revisiting The Entry Fiction After Boumediene, Zainab A. Cheema

Fordham Law Review

In the last two decades, the U.S. Supreme Court has actively grappled with balancing the interests of immigrant detainees and the federal government in the context of prolonged immigration detention by reconciling the statutory framework with constitutional guarantees of due process. The Court has focused on how prolonged detention without an opportunity for an individualized custody determination poses a serious constitutional threat to an alien’s liberty interest. The Court’s jurisprudence has focused, however, on aliens who have effected an entry into the United States. The constitutional entitlements of nonresidents who are detained upon presenting themselves at the border have so …

Open The Jail Cell Doors, Hal: A Guarded Embrace Of Pretrial Risk Assessment Instruments, Glen J. Dalakian Ii

Fordham Law Review

In recent years, criminal justice reformers have focused their attention on pretrial detention as a uniquely solvable contributor to the horrors of modern mass incarceration. While reform of bail practices can take many forms, one of the most pioneering and controversial techniques is the adoption of actuarial models to inform pretrial decision-making. These models are designed to supplement or replace the unpredictable and discriminatory status quo of judicial discretion at arraignment. This Note argues that policymakers should experiment with risk assessment instruments as a component of their bail reform efforts, but only if appropriate safeguards are in place. Concerns for …

Mission To Dismiss: A Dismissal Of Rule 12(B)(6) And The Retirement Of Twombly/Iqbal, Victor Marrero

Cardozo Law Review

No abstract provided.

Separating Fact From Fiction: The First Amendment Case For Addressing “Fake News” On Social Media, Michael K. Park

UC Law Constitutional Quarterly

“Fake news” or disinformation that appropriates the look and feel of real news stories continues to spread across social networks, suppressing informed dialogue and sowing civil discord. After revelations that influential media websites like Facebook and Twitter were used to spread fake news during the 2016 presidential election, these companies vowed to take remedial action, but have failed to contain the spread of fake news. This essay makes the case that First Amendment principles mandate that the government has a duty to preserve democratic deliberation and democratic decision-making institutions, even if that means overriding private interests. It explores some prospective …

Access To Justice, Rationality, And Personal Jurisdiction, Adam N. Steinman

Faculty Scholarship

After more than twenty years of silence, the Supreme Court has addressed personal jurisdiction six times over the last six Terms. This Article examines the Court’s recent decisions in terms of their effect on access to justice and the enforcement of substantive law. The Court’s new case law has unquestionably made it harder to establish general jurisdiction—that is, the kind of jurisdiction that requires no affiliation at all between the forum state and the litigation. Although this shift has been justifiably criticized, meaningful access and enforcement can be preserved through other aspects of the jurisdictional framework, namely (1) the basic …

After The Trump Era: A Constitutional Role Morality For Presidents And Members Of Congress, Neil S. Siegel

Faculty Scholarship

In the United States today, the behavior of the political branches is generally viewed as more damaging to the American constitutional system than is the behavior of the federal courts. Yet constitutional law scholarship continues to focus primarily on judges and judging. This Article suggests that such scholarship should develop for presidents and members of Congress what it has long advocated for judges: a role morality that imposes normative limits on the exercise of official discretion over and above strictly legal limits. The Article first grounds a role morality for federal elected officials in two purposes of the U.S. Constitution …

Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum

Faculty Scholarship

This Article provides some introductory thoughts about the relationship between originalist constitutional theory and the proper role of precedent in the American judicial system. The development of these thoughts begins in Part I, which provides a brief introduction to originalism and its principle rival, which is sometimes called “living constitutionalism.” Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court. …