Constitutional Law Commons^™

Climate Change And Constitutional Overreach, Jonathan H. Adler

Faculty Publications

The failure of the political process to produce meaningful climate mitigation policies has encouraged activists to pursues aggressive and innovative litigation strategies. An increasing number of climate-related lawsuits seek to control greenhouse gas emissions, impose liability on fossil fuel producers, or otherwise force greater action on climate change. In many of these cases, litigants have made aggressive constitutional claims that stretch the bounds of existing constitutional doctrine and threaten to entrench climate policies outside of the traditional political process. This Article critically assesses some of the constitutional arguments made in climate cases, including Massachusetts v. EPA and Juliana v. U.S. …

Undercover Investigations, Deception, And Democracy, Helen Norton

Publications

No abstract provided.

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Publications

No abstract provided.

From Gods To Google, Rebecca Aviel, Margot Kaminski, Toni M. Massaro, Andrew Keane Woods

Publications

The First Amendment has become a significant barrier to sensible technology regulation. The conventional explanation for this is the Court's deregulatory turn in free-speech law. But the Lochnerization story is incomplete. The Court's profound solicitude for religious speakers plays a central role in the current digital-free-expression landscape. By protecting the speech of certain religious dissidents, the Court has created a set of constitutional entitlements that logically extend to technology firms. Along the way, the Court has eroded its ability to apply the First Amendment sensibly to novel technologies.

This Feature draws the doctrinal through line from gods to Google. We …

Loyalty Disarmament And The Undocumented, Pratheepan Gulasekaram

Publications

Since the Supreme Court's District of Columbia v. Heller decision in 2008, lower federal courts have wrestled with Second Amendment claims raised by categories of people excluded from gun possession. Among those cases, several have been brought by noncitizens challenging their prosecutions under 18 U.S.C. § 922(g)(5), the federal criminal ban on possession by unlawfully present noncitizens. In the post-Heller § 922(g)(5) cases, judges have opined on whether unlawfully present noncitizens were among "the people" who had the right to bear arms and whether the government regulation met the appropriate level of constitutional scrutiny. More recently, however, the Supreme Court …

Contesting "Address": Conflicts Over The Words We Use To Address And Refer To Each Other, Helen Norton

Publications

Professor Richard Brooks's generative insights provide us with valuable tools for recognizing, and trying to make sense of, address's role in human interactions. That "address"--the words we use to address and refer to each other--has the potential both to offer value and to inflict harm to these interactions sometimes triggers conflict over appropriate forms of address. In this Commentary to Professor Brooks's Frankel Lecture, I examine some of these conflicts.

As we'll see, some address conflicts involve debates over whether and when address actually makes meaning or whether it’s instead relatively trivial--while others involve contestants who agree that address makes …

Can The Law Of Democracy Save Democracy?, Helen L. Norton

Publications

No abstract provided.

Suspicion, Deference, And The First Amendment, Helen Norton

Publications

No abstract provided.

Dangerousness And The Undocumented, Pratheepan Gulasekaram

Publications

The Supreme Court's most recent Second Amendment opinion, United States v. Rahimi, centers the question of dangerousness in right to bear arms challenges. There, the Court upheld 18 U.S.C. § 922(g)(8), the federal criminal prohibition on possession of firearms by those subject to a civil domestic violence order, opining that legislatures could regulate the right to bear arms of those who were proven credible threats to public safety. Rahimi, however, left open the question whether dangerousness might be imputed to an entire group, absent individual determinations of threat or danger. The several lower federal court cases adjudicating 18 U.S.C. § …

What Did Gitlow Do?, James Y. Stern

Faculty Publications

Gitlow is generally regarded as the first modern incorporation case, the genesis of both federal free speech curbs on state action and the larger project of making the same limitations that the federal Constitution imposes on the federal government applicable to the states. In both respects, moreover, it can also be seen as an important milestone in the larger twentieth century transformation of federal court practice and constitutional understanding centered on the assertion of individual rights. That linkage is no accident. For all the talk about federalism and state sovereignty in the U.S. Reports, the modern jurisprudence of constitutional rights …

History's Identity Crisis, Allison Orr Larsen

Faculty Publications

Lower court judges across the country are struggling to manage the Supreme Court’s new “history and tradition” test that applies to Second Amendment challenges. This Article articulates one fundamental reason for the struggle: nobody is quite sure what a judge is actually doing when she evaluates claims about what happened in the past. Is it traditional legal reasoning— weighing evidence and looking for patterns? Is it fact-finding of the sort we think expert historians should testify about—conveying to a trial judge the best evidence we have about the purpose of colonial gun laws? Or is it a different sort of …

Gerard V. Bradley And The American Law Of Church And State, Richard W. Garnett

Journal Articles

This paper provides an overview and appreciation of Prof. Gerard V. Bradley’s scholarly contributions to the American constitutional law of church and state. The Supreme Court of the United States has, in recent years, handed down a number of closely watched and much-remarked-on rulings in cases involving the First Amendment’s Religion Clause and various religion-related statutes. The Court has moved the law of religious freedom and church–state relations toward coherence and clarity, and better aligned it with American history, tradition, and practice, and with an appropriate understanding of judges’ capacities and of the judicial role in a democracy. It appears …

Litigating Climate Vulnerability: Climate Change Reparations In Global Jurisprudence And Empirical Results From The Notre Dame Climate Change Reparations Dataset, Diane A. Desierto, Anibal Perez-Linan, Faisal Yamil Meneses, Yuta Inada, Rachael Degaugh, Andrew Marciano

Journal Articles

From the article

The global surge in climate change litigation provokes inquiry into the nature, frequency, and scope of climate change reparations that international, regional, and national courts, as well as arbitral tribunals and other adjudicative bodies such as UN treaty body mechanisms, determine to be adequate, both on legal merits as well as intrinsic claims of justice, for the resolution of disputes brought by climate vulnerable persons, groups, and constituencies against States, multinational corporations, and other actors. Our findings from the Notre Dame Climate Change Reparations Dataset reveal a broad spectrum of pecuniary and non-pecuniary reparations being adjudicated in …

After Courts: Democratizing Statutory Law, Ryan D. Doerfler, Samuel Moyn

Michigan Law Review

In Federalist No. 78, Alexander Hamilton argued for locating interpretive authority over law separately from those institutions tasked with formulating it. Hamilton’s vision, never accurate as a description of American practice, has not been credible for a long time. To the extent enormous power is still allocated to judges, our legal institutions have been out of step with our legal theory, which has long regarded them as political actors and policymakers. More practically, every term it is clearer and clearer that the role of the Supreme Court in statutory cases (including checking administrative rulemaking and other processes) is, if anything, …

Last Resort: Advocating For Rhode Island To Adopt A More Comprehensive Homeless Bill Of Rights In The Wake Of Grants Pass V. Johnson, Casey Rivera

Roger Williams University Law Review

No abstract provided.

Bruen Was Right, J. Joel Alicea

Scholarly Articles

New York State Rifle & Pistol Association v. Bruen is one of the most methodologically significant—and widely maligned—constitutional law decisions of the last several decades. By rejecting the tiers of scrutiny that have loomed large in rights jurisprudence since the 1960s and substituting a text-and-history test for Second Amendment cases, Bruen signals a potential transformation of American constitutional law far beyond the Second Amendment context. Given Bruen’s methodological significance and the text-and-history approach it represents, one might have expected that the debate over Bruen would break down along familiar lines, with originalists defending Bruen and non-originalists critiquing it. Yet, the …

Constitutional Theory At A Catholic University, J. Joel Alicea

Scholarly Articles

No abstract provided.

Confession And Confrontation, William Ortman

Scholarly Works

The constitutional law of confessions has a critical blind spot. In theory, the law serves two interests. First, it protects the autonomy of suspects by stipulating that they can be questioned while in custody only with their consent. Second, it restrains official misconduct by forbidding interrogation methods that overbear a suspect's will. Even if the law adequately safeguards those interests, something is missing: reliability. As false confessions emerge as a major source of wrongful convictions and as social scientists expose how standard interrogation tactics prompt innocent people to confess, the Supreme Court and conventional wisdom insist that the reliability of …

The Regulation Of Presidential Elections, Lori A. Ringhand

Scholarly Works

There is an unresolved dispute lingering just beneath the surface of a host of laws regulating our elections: does Congress have power under Articles I and II of the Constitution to legislate the nuts-and-bolts rules governing presidential elections? The issue exists because of a textual gap in congressional authority. Article 1 section 4 of the Constitution gives Congress the power to override a state's choices about the "times, places, and manner" of congressional elections held in the state. Article II section 1 gives the legislature of each state power to determine the “manner” in which its presidential electors are appointed, …

Can States Force Ice To Take Off The Masks?, Noah C. Chauvin

Faculty Articles

No. But that does not mean they are entirely powerless to combat the practice.