Constitutional Law Commons^™

White Supremacy, Police Brutality, And Family Separation: Preventing Crimes Against Humanity Within The United States, Elena Baylis

Articles

Although the United States tends to treat crimes against humanity as a danger that exists only in authoritarian or war-torn states, in fact, there is a real risk of crimes against humanity occurring within the United States, as illustrated by events such as systemic police brutality against Black Americans, the federal government’s family separation policy that took thousands of immigrant children from their parents at the southern border, and the dramatic escalation of White supremacist and extremist violence culminating in the January 6, 2021 attack on the U.S. Capitol. In spite of this risk, the United States does ...

Personal Data Privacy And Protective Federal Legislation: An Exploration Of Constituent Position On The Need For Legislation To Control Data Reliant Organizations Collecting And Monetizing Internet-Obtained Personal Data, Giovanni De Meo

Dissertations

In the past twenty years, the business of online personal data collection has grown at the same rapid pace as the internet itself, fostering a multibillion-dollar personal data collection and commercialization industry. Unlike many other large industries, there has been no major federal legislation enacted to monitor or control the activities of organizations dealing in this flourishing industry. The combination of these factors together with the lack of prior research encouraged this research designed to understand how much voters know about this topic and whether there is interest in seeing legislation enacted to protect individual personal data privacy.

To address ...

Masthead

Hastings Constitutional Law Quarterly

No abstract provided.

Foreword, Richelle Joy Gernan

Hastings Constitutional Law Quarterly

No abstract provided.

Presidential Impunity And The Mueller Report: How The Department Of Justice’S Failure To Subject The Special Counsel Regulations To Notice And Comment Undermined The Rule Of Law, M. Akram Faizer

Hastings Constitutional Law Quarterly

Department of Justice (“DOJ”) Special Counsel, Robert S. Mueller, III’s two-volume, 448-page Report on the Investigation into Russian Interference in the 2016 Presidential Election (“the Report”), did an outstanding job in evidencing that President Trump’s actions in office satisfied the federal obstruction of justice standards. However, due to Mueller’s limited brief and his concern for maintaining the proper separation of powers, the Report, submitted confidentially to former Attorney General Barr as required by Department of Justice Regulations, abjured a determination as to Presidential criminality. This regulatory confidentiality requirement in conjunction with the requirement that Barr disclose an ...

Presidential Removal: Impeachment As A Tool To Promote Democracy In Haïti, Brynna Bolt

Hastings Constitutional Law Quarterly

No abstract provided.

Disability Rights And The Louisiana Constitution, Derek Warden

Hastings Constitutional Law Quarterly

The Louisiana Constitution contains three Equal Protection Clauses. Article I, section 3 prohibits discriminatory laws; but, as an original matter, should prohibit both discriminatory laws and government conduct. Article I, section 12 prohibits discrimination by individuals (government or private) in regard to access to public places. Finally, article I, section 2, the Due Process Clause, also contains an Equal Protection component. Each clause prohibits discrimination on the basis of “physical condition,” which contains a general “disability” component. Based upon statements from the Louisiana Constitutional Convention and other modalities of constitutional argument, this article concludes that these clauses—individually and in ...

Weighing Pain: How The Harm Of Immigration Detention Must Be Factored In Custody Decisions, Linus Chan

William & Mary Journal of Race, Gender, and Social Justice

The United States is currently in the midst of a “third wave of potential pretrial detention reform.” And while certain reforms are gaining traction in an effort to reduce pretrial criminal detention, efforts to do the same for immigration detention have lagged. Reformers and abolitionists make the case that immigration detention needs to be either restricted or eliminated entirely. Nonetheless, the number of people held in detention for immigration purposes rises year after year. Not only do the numbers of people in immigration detention grow, but the systems in place have grown less concerned with the harsh consequences of detention ...

Shelter From The Storm: Human Rights Protections For Single-Mother Families In The Time Of Covid-19, Theresa Glennon, Alexis Fennell, Kaylin Hawkins, Madison Mcnulty

William & Mary Journal of Race, Gender, and Social Justice

COVID-19’s arrival, and the changes it has unleashed, reveal how longstanding legal and policy decisions produced structural inequalities that have left so many families, and especially single-parent families with children, all too insecure. The fragility of single-mother families is amplified by the multifaceted discrimination they face. While all single parents, including single fathers and other single relatives who are raising children, share many of these burdens, this Article focuses on the challenges confronting single mothers.

Federal policy choices stand in sharp contrast to the political rhetoric of government support for families. Social and economic policy in the twentieth century ...

Recent Developments, Clinton T. Summers

Arkansas Law Review

In a free speech and free exercise case involving the Business Leaders in Christ at the University of Iowa, the Eighth Circuit Court of Appeals reversed the Southern District of Iowa by holding that University officials should not be granted qualified immunity based on the student organization’s free speech claim.

A Government Of Laws That Is A Government Of Men And Women, Mark Tushnet

Arkansas Law Review

I take Mark Killenbeck’s “provocative” article as an occasion for some informal comments about what Korematsu and Trump v. Hawaii tell us about the saying, “a government of laws, not a government of men and women.” My basic thought is that the “not” in the saying has to be replaced “but also.” And, in some sense we have always had to have known that the saying was wrong as stated. Whatever the laws are, they don’t make themselves. Nor do they administer themselves, nor interpret themselves. Men and women appear at the stages of enactment, application, and adjudication ...

A Proper Burial, Robert L. Tsai

Arkansas Law Review

In his article, Professor Mark Killenbeck defends both Korematsu v. United States and Trump v. Hawaii on their own terms, albeit on narrow grounds. He goes on to conclude that comparisons of the two decisions don’t hold up. Killenbeck has authored a thoughtful and contrarian paper, but I’m not sold. In my view, Korematsu simply isn’t worth saving; in fact, a more complete repudiation of the internment decisions is overdue. Trump v. Hawaii, too, must also be revisited at the earliest opportunity and its more alarming features that abet presidential discrimination against non-citizens rejected. Moreover, I believe ...

Tainted Precedent, Darrell A.H. Miller

Arkansas Law Review

We have a common law system of constitutional adjudication, at least in the sense that constitutional practice in the United States relies on prior rulings rather than reasoning from first principles in each case. If there’s controlling precedent on point, it’s binding. Neither “inferior courts” in the federal system, nor state courts adjudicating federal law, are permitted to start anew with the “original public meaning” of the First Amendment or pronounce a fresh Dworkinian “moral reading” of the Fourth. Even the highest court in the land, the Supreme Court of the United States, for reasons of reputation, stability ...

There Was Nothing "Neutral" About Executive Order 9066, Eric L. Muller

Arkansas Law Review

There is no more appropriate place to discuss the Japanese American cases of World War II than in the pages of the Arkansas Law Review. This is not only because Arkansas was the only state outside the Western Defense Command to host not one but two of the War Relocation Authority’s (WRA) concentration camps for Japanese Americans. It is because one of the most important lawyers to oversee the development and administration of all the WRA camps was the dean under whose leadership this law review was founded: Robert A. Leflar. Leflar’s is not a name that constitutional ...

Korematsu, Hawaii, And Pedagogy, Sanford Levinson

Arkansas Law Review

I begin with some reflections on my own career in teaching—or, perhaps, attempting to teach—American constitutional law to generations of students from 1975 to the present. Or, more accurately, until about three years ago, when I taught introductory constitutional law for the last time. I am quite happy to no longer be teaching that course, whatever joys it did provide me in the past, for a very simple reason: I became more and more frustrated by the demands of coverage, i.e., the duty to take up a variety of topics—including attendant cases and collateral materials—and ...

Korematsu As The Tribute That Vice Pays To Virtue, Jack M. Balkin

Arkansas Law Review

Mark Killenbeck wants to (partially) rehabilitate the reputation of one of the Supreme Court’s most despised legal decisions, Korematsu v. United States. He argues that “[w]e should accept and teach Korematsu as an exemplar of what thelaw regarding invidious discrimination on the basis of race, ethnicity, and national origin should be.” In both Korematsu (and Hirabayashi v. United States) the Court asserted that classifications based on race were subject to strict scrutiny. But “[t]he majority,” Killenbeck explains, “refused to heed their own mandate. In Hirabayashi they held that the government policy was ‘reasonable.’ In Korematsu, . . . they failed ...

Sober Second Thought? Korematsu Reconsidered, Mark R. Killenbeck

Arkansas Law Review

How to best describe and treat Korematsu v. United States? A self-inflicted wound? It is certainly an exemplar of a case that in key respects tracks Justice Stephen Breyer’s caution about decisions that have “harm[ed] not just the Court, but the Nation.” Part of an “Anticanon,” resting on “little more than naked racism and associated hokum” and “embod[ying] a set of propositions that all legitimate constitutional decisions must be prepared to refute”? Perhaps. Or is it simply an opinion and result that “has long stood out as a stain that is almost universally recognized as a shameful ...

Symposium: Giving Korematsu V. United States A Sober Second Thought, Nick Bell, Emily Levy, Julian Sharp

Arkansas Law Review

We are elated to present Professor Mark Killenbeck’s thought provoking article, Sober Second Thought? Korematsu Reconsidered. Killenbeck dives into the Korematsu opinion and its history with great care to determine whether it truly “has no place in law under the Constitution” as Chief Justice John Roberts declared in Trump v. Hawaii.1 While Korematsu’s result provides an understandable “impulse to condemn” it, Killenbeck shows us that focusing solely on the case’s result “stands apart from and in stark contrast to its most important place in the constitutional order: articulation of precepts and terminology that provide the foundations ...

Putting A Gag On Farm Whistleblowers: The Right To Lie And The Right To Reamin Silent Confront State Agricultural Protectionism, Rita-Marie Cain Reid, Amber L. Kingery

Journal of Food Law & Policy

Whistleblowers play an important role in filling gaps in government food safety systems. Unfortunately, several dominant food-producing states have pursued legislative initiatives that punish farm whistleblowers and silence investigative tactics. First, this research describes various state legislative initiatives that curb criticism of agriculture. The work analyzes the federal food safety system and how these protections limiting agricultural criticism contravene that food safety net. Further, the research analyzes the free speech concerns in the newest protectionist laws. The analysis recommends strategies and future research to improve agricluture safety and protect free speech in an evolving food safety landscape.

Temporary Eminent Domain, Amnon Lehavi

Buffalo Law Review

Times of emergency call for drastic measures. These steps may include the physical takeover of privately-owned assets by the government for a certain period of time and for various purposes, aimedat addressing the state of emergency. When will such acts amount to a taking, and what compensation should be paid to the property owner? How do temporary physical appropriations during times of emergencydiverge, if at all, from temporary takeovers in more ordinary times?

The doctrinal and theoretical analysis of potential temporary takings has been done mostly in the context of non-physical government intervention with private property, such as when a ...