Constitutional Law Commons^™

Correcting Course: How Congress Can Streamline U.S. Engagement With The International Criminal Court, Sophia N. Ramcharitar

Cardozo Law Review de•novo

Since its participation in the 1998 Rome Conference, the United States has vocalized opposition to key components of the International Criminal Court’s (ICC) jurisdiction. This opposition has informed longstanding positions taken by the executive branch and motivated anti-ICC legislation passed by Congress. Support for the ICC’s investigation in Ukraine challenged these narratives across the legislative and executive branches, but the ICC’s arrest warrants of Israeli officials in 2024 renewed Congress’s heightened skepticism of the court and sowed political divisions on efforts to sanction the ICC. Congress’s oscillation on the ICC within the past several years prompts a larger question of …

Remedying Unconstitutional Immigration Enforcement, Guha Krishnamurthi

Cardozo Law Review de•novo

Fearmongering about “illegal immigration” has reached a fever pitch. There is a nearing bipartisan consensus among politicians that “stopping illegal immigration and securing the border” is a paramount priority. The fact that many politicians and institutional actors have displayed animus in discussing immigration enforcement portends that many perils lie ahead. It is precisely during this time that constitutional rights must serve as a bulwark against government overreach. This Essay contends that our constitutional rights framework, specifically its principal remedies for rights violations, are inadequate to protect against government malfeasance. In particular, I demonstrate that there are plausible scenarios where the …

Shoot The Messenger: Why Section 230 Does Not Shield Suggestive Content Delivery, Alexander Heinkele

Cardozo Law Review de•novo

Internet companies have frequently relied on Section 230 of the Communications Decency Act of 1996 to avoid liability for third-party content hosted on their platforms. However, over time, companies began to take advantage of the broad cover of Section 230 in circumstances outside the statute’s original scope. This Note advocates for a more nuanced interpretation of the statute as it applies to suggestive algorithms and offers a proposal for amending Section 230 to better reflect the modern digital landscape.

The Score Act Is Unconstitutional: Private Nondelegation Problems With Congress’S Latest Attempt To Regulate College Sports, Sam C. Ehrlich, Ryan M. Rodenberg

Cardozo Law Review de•novo

The Student Compensation and Opportunity through Rights and Endorsements Act (“SCORE Act”) is Congress’s most ambitious effort yet to bring stability to college sports, codifying the recent House settlement while granting sweeping regulatory power to private athletic associations such as the National Collegiate Athletic Association (“NCAA”) and the College Sports Commission (“CSC”). However, by delegating policymaking authority to these private, self-interested entities without any sort of public oversight, the bill raises serious constitutional concerns under the private nondelegation doctrine. Drawing on parallels to a string of litigation involving the Horseracing Integrity and Safety Act (“HISA”) and recent Supreme Court signals, …

In Defense Of Pro Se Parents, Matthew F. Gillam

Fordham Law Review

Who gets to represent children in federal court? Adults have long been permitted to represent themselves in federal court under the plain meaning of 28 U.S.C. § 1654. And, many adults do just that every year. But what if the real party in interest is a minor child? Who, if anyone, can exercise that child’s right to proceed pro se?

This Note argues that the correct reading of 28 U.S.C. § 1654 would permit parents to litigate pro se in federal court where the real party in interest is their minor child. This is based on a straightforward, grammatically correct …

Populist Primacy, Jacob Eisler

Brooklyn Law Review

Critics of the Roberts Court assert that the conservative justices are remaking American democracy to implement a corrupt Republican agenda. Conversely, the justices claim to be following originalism, with democratic transformation as an incidental side effect. These views share no common ground, and there is little space left for fruitful dialogue. This Article breaks this impasse by identifying the functional democratic theory driving the Court: populist primacy. Populist primacy allocates power to the rank-and-file constituency and sweeps away institutions that moderate popular will. By positing that democracy consists of conflict between self-motivating actors, populist primacy adopts a structurally minimalist vision …

Fearless Speech Ignores History To Make A Point, Robert Corn-Revere

Brooklyn Law Review

Professor Mary Anne Franks’ book Fearless Speech: Breaking Free from the First Amendment purports to offer a bold reimagining of free speech doctrine that “takes power, harm, and history seriously.” However, as this review essay demonstrates, Fearless Speech neither breaks free from familiar critiques of the First Amendment nor engages seriously with the historical and doctrinal record. The review illustrates how Professor Franks’ claim that “First Amendment norms have perpetuated and maintained a neo-Confederate ideology of white male supremacy” is entirely unsupported and is based on a series of strawman arguments that mischaracterize both the historical record and free speech …

The Grass Is Always Grayer: Analyzing Field Preemption Challenges In New York Environmental Law, Dylan Misisco

Brooklyn Law Review

This Note addresses a growing tension in environmental law between state and local authorities, focusing on the doctrine of field preemption as applied to New York environmental law. Using the Glen Oaks litigation as a case study, this Note argues that field preemption—where laws from a higher government authority implicitly nullify lower-level ones—threatens the effectiveness of environmental governance at the state and local levels. To mitigate future field preemption conflicts, this Note proposes a two-pronged solution: (1) New York courts should adopt a clearer and more structured framework for evaluating field preemption claims, specifically in the environmental context; and (2) …

The Comstock Act’S Equal Protection Problem, Danny Y. Li

Michigan Law Review Online

Following its victory in Dobbs, the antiabortion movement has set its sights on a national abortion ban. Affiliates of the second Trump Admin- istration—including the vice president-elect—have endorsed the re- newed enforcement of the 1873 Comstock Act as one avenue for implementing such a ban. This Essay argues that contemporary enforce- ment of the Comstock Act as a national abortion ban would be unconsti- tutional. The Act violates the Fifth Amendment’s equal protection guarantee because it was enacted with the discriminatory purpose of in- hibiting illicit sex to promote women’s sexual purity. Only contemporary reenactment of the law without constitutionally …

Originalisms' Indifferences?: Friendly Amendments To Sherif Girgis's "Originalism's Difference?", Jed Handelsman Shugerman

Faculty Scholarship

Sherif Girgis’s Lecture Originalism’s Differences? reflects on what had differentiated originalism from other methods and why those differences are eroding. The differences are (or were): (1) avoiding “ostentatious moral reasoning”; (2) relatedly, constraining judges by requiring originalist historical evidence (i.e., tying judges’ hands); and (3) engaging historical research with more “intensity.” Girgis rightly criticizes the Court for engaging in the same kind of flexibility and creativity that originalists had long rejected.

In this commentary, I highlight our areas of agreement and offer friendly amendments. My title takes Girgis’s title two or three steps further: I use an “s-apostrophe” because I …

Book Review: We're All Traditionalists Now (Most Of The Time), Richard H. Fallon, Jr., The Changing Constitution: Constitutional Law In The Trump-Era Supreme Court, Michael Gentithes

Akron Law Faculty Publications

This review highlights the scope and importance of Richard Fallon’s book, The Changing Constitution: Constitutional Law in the Trump-Era Supreme Court. Fallon, a giant of constitutional work, provides a comprehensive, accessible, and vitally important catalogue of the Court’s methodological changes in his posthumously published book. The book argues that while textualism and originalism “have achieved unparalleled prominence,” the Court is also “not consistently originalist” and often relies on a version of traditionalism, similar to but importantly distinct from originalism, that marks an important and undertheorized change. And in yet other areas, the Court eschews either originalism or traditionalism for …

Avoiding Spacex's Giant Leap Backwards For Mankind: Why The Nlrb Leadership Is Constitutionally Protected And How To Keep It That Way, Clara Goldrich

Brooklyn Law Review

Companies like SpaceX and Amazon are arguing in federal court that the structure of the National Labor Relations Board (NLRB) unconstitutionally protects its Members and administrative law judges (ALJs) from presidential removal. President Donald Trump’s firing of Member Gwynne Wilcox, the ensuing litigation, and the Supreme Court’s grant of certiorari in an analogous case, Trump v. Slaughter, has kicked the constitutional question of NLRB leadership removal protections into high gear. This Note examines the constitutionality of NLRB Member and ALJ removal protections. Under current Supreme Court precedent, NLRB Member removal protections are likely constitutional. However, the Court has recently signaled …

The Keys To The Kingdom: The Unexpectedly Unsettled Definitions Of Security And Sale And The Overruling Of Chevron, Joel Seligman

Scholarship@WashULaw

This article explores two important unresolved questions for the Federal Securities regulation under the Securities Act of 1933 and the Securities Exchange Act of 1934. The definition of security and the definition of sale were increasingly contested and potentially unstable before the United States Supreme Court decision in Loper Bright Enterprises v. Raimondo overruled the Chevron doctrine.

The Curiously Minor Role Of Minor V. Happersett (Foreword), Susan Frelich Appleton, Travis Crum, Hannah Keidan

Scholarship@WashULaw

This Foreword introduces a symposium marking the 150th anniversary of Minor v. Happersett, a Supreme Court decision unanimously holding that the Fourteenth Amendment's Privileges or Immunities Clause did not enfranchise women. Notwithstanding its impact on the women's suffrage movement and the subsequent ratification of the Nineteenth Amendment, Minor presents a puzzle: it is a relatively obscure precedent that remains deeply relevant to contemporary legal debates. To elucidate this point, this Foreword juxtaposes Minor with two notorious Supreme Court decisions: Dred Scott and Dobbs.

Like Dred Scott, Minor pairs a morally repugnant result with legalistic reasoning. But whereas …

Rational Gridlock, Scott Baker, Michael D. Gilbert

Scholarship@WashULaw

We examine the design of lawmaking institutions when advocates have agenda setting power and there is randomness in the status quo laws eligible for reform. The institutional designer maximizes voter welfare. We find that the optimal arrangement consists of two lawmaking institutions that must agree to enact any reforms. The institutions do not share preferences with one another or with the median voter. As a result, gridlock arises: the institutions reject some reforms that the median voter favors. However, when reform succeeds, it tends to be modest in scope and to more closely track what the median voter prefers. The …

Brief For Tax Law Professors As Amici Curiae In Support Of Petitioners In Learning Resources (No. 24-1287) And Respondents In V.O.S. Selection (No. 25-250), Conor Clarke, Jon Endean, Ari Glogower, Daniel J. Hemel

Scholarship@WashULaw

The Constitution gives Congress, and not the President, the authority to “lay and collect Taxes, Duties, Imposts, and Excises.” The Constitution also mandates that revenue measures begin in the House of Representatives, requires that such measures be geographically uniform, and prohibits the states from imposing import duties without congressional consent. Read together with Article I’s vesting of “all legislative Powers” in Congress and the familiar requirements of bicameralism and presentment, these provisions reflect a recurring constitutional commitment: Tariffs are national and legislative—and thus to be determined by a representative Congress.

History bolsters these textual commitments. State conflict over import duties …

The Original Function Of Tax Apportionment, Conor Clarke, Peter J. Wiedenbeck

Scholarship@WashULaw

The Constitution’s requirement that direct taxes be apportioned by state population is both confounding and important. At best, tax apportionment is regarded as reflecting the unique federalism concerns of the Founding; at worst, it is viewed as a tainted product of the constitutional compromise over slavery. And, in light of the Supreme Court’s decision in Moore v. United States (2024)—which refused to rule out that apportionment might be required for taxes on unrealized gains—tax apportionment is the subject of renewed legal and scholarly interest.

We consider one historical dimension of tax apportionment that has not been developed elsewhere: its original …

Lessons Learned From The Trump Rule Of Law Stress Test: Beware Bad Faith Actors, Brian Z. Tamanaha

Scholarship@WashULaw

The second Trump Administration has engaged in a vast swath of actions that press against the outer boundaries of legality. These actions provide a unique opportunity to identify potential vulnerabilities and expose how the rule of law can be undermined. While I will elucidate well-known points along the way, my primary aim is to bring out aspects of the rule of law that usually go unnoticed or under the radar. After setting out basic aspects of the rule of law, I cover three topics: 1) adhering to the truth, 2) pretextual arguments, and 3) flooding the field with actions and …

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Scholarship@WashULaw

One hundred and twenty years ago, the Supreme Court handed down one of the single most notorious opinions ever rendered, striking down a New York labor law for violating a right to contract found nowhere in the text of the Constitution. The era of Lochner v. NY (1905) is well past us, but not the judicial impulses that gave rise to the case. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the President, Congress, federal agencies, and the courts. Bringing together two lines of case-law-on …

Constitutional Comparisons And Language, De Maartje Visser

Research Collection Yong Pung How School Of Law

Language can be seen as an intuitive challenge for those who embark on comparative constitutional research: its intricate entanglement with law is often overlooked and not engaged with explicitly. This chapter argues that this is a missed opportunity at best, and arguably presents a hazard for the collective quality of the scholarly discourse. It discusses four ways in which language matters when engaging in constitutional comparisons: the problem of literal translation; the problem of legal-conceptual translation; a multilingual discourse that is marked by fragmentation; and expectations in communication with a foreign or international readership. The approach taken is constructive, with …