Constitutional Law Commons^™

The Appeal Of The Apex Court In Botswana: The Case Of Carter Morupisi V. State, Muna B. Ndulo, Louis Koen, Samantha Smit

SAIPAR Case Review

This case note discusses the Botswana Court of Appeal's ruling in Carter Morupisi v State, which addressed the High Court's unprecedented attempt to review a decision of the Court of Appeal. The commentary highlights the fundamental principle of judicial hierarchy and the separation of powers in Botswana's constitutional framework. The Court of Appeal emphatically rejected the High Court's jurisdiction to review its judgments, reaffirming its position as the final arbiter (highest judicial authority). The authors emphasise that while the High Court may raise constitutional questions with regards to Apex courts decisions, it cannot adjudicate on them, reinforcing the concept of …

Reimagining Judicial Review Of Student Requests For Remote Instruction As An Ada Accommodation In Higher Education, Hannah E. Auten

Chicago-Kent Law Review

No abstract provided.

Correcting 50 Years Of Confusion On The Lmra Preempting Or Precluding Rico: A Missed Opportunity, Connor Bernard

Chicago-Kent Law Review

No abstract provided.

Takings, Original Meaning, And Applying Property Law Principles To Fix Penn Central, John M. Groen

Touro Law Review

No abstract provided.

Livin' On A Legislative Prayer: How Prayer At A School Board Meeting Survives Under An Exception To The Establishment Clause, Brian Muff

Touro Law Review

This Note discusses the circuit split between the Ninth Circuit and the Fifth Circuit on whether prayer should be permitted to open up a school board meeting. First introducing the topic and explaining the history of legislative prayer in America, the Note then discusses governing Supreme Court precedent concerning school prayer and legislative prayer. After analyzing the cases that are the subject of the circuit split, the Note concludes with a recommendation that the Supreme Court permit the recitation of prayer to begin a school board meeting, citing the commonalities between a school board and a legislature and making three …

We Have Lost Our Minds: Bioethics After Dobbs, Teneille R. Brown

Utah Law Faculty Scholarship

This article examines the paradoxical treatment of autonomy in American healthcare law. While autonomy has become the dominant principle in medical ethics and neoliberal market philosophies, pregnant people have been systematically denied this same autonomy through increasingly restrictive abortion statutes. Using the rhetoric of “informed consent,” abortion-restrictive statutes ironically pervert the animating principles behind the doctrine—rendering it almost meaningless.  I argue that this contradiction stems from the dehumanization of pregnant people who seek abortions, particularly through the denial of their capacity to have individual, complex mental states and feelings. Drawing on moral psychology, the article demonstrates how pregnant people are …

School Choice & Religious Discrimination: A Story Of The Illusory "Wall Of Separation," Sour "Lemon Tests," And Overgrown "Baby Blaines", Keren Kendil

Touro Law Review

The significance of elementary school education in shaping a child's future, and the success of society, is immeasurable. The free public school system is built on the premise that every child deserves to have the equal opportunity to learn and succeed. However, this system overlooks the millions of children attending private schools due to their religious and moral convictions. This note delves into the imperative of ensuring universal access to quality elementary education for every child, irrespective of their family's religious affiliations or preferences for private schooling, highlighting the constitutional imperatives of ensuring that every child has the opportunity to …

Breaching The Walls Of The Inviolable Citadel: The Supreme Court's Treatment Of The Lemon Test And Its Progeny, Christopher C. Spinosa Jr.

Touro Law Review

The Supreme Court in Kennedy v. Bremerton finally laid the three-pronged Lemon test to rest. Instead of Lemon and its progeny, Establishment Clause cases are now to be decided based upon the historical practices and understandings of our Founding Fathers. Subsequently, the Eleventh Circuit instructed the Middle District of Florida to its analysis in Rojas v. City of Ocala. In Rojas, a prayer vigil occurred in the City's public square and featured uniformed police chaplains singing and engaging in Christian prayers. After this Note was written and submitted for publication, the district court issued its decision in Rojas …

Adjudication Of Presidential Term Limits In Zambia: A Comment On Michelo Chizombe V. Edgar Chagwa Lungu And Others 2023/Ccz/0021, O'Brien Kaaba

SAIPAR Case Review

This piece examines the Zambian Constitutional Court's decision on former President Edgar Lungu's eligibility to contest future presidential elections. The Court ruled Lungu ineligible, based on the application of Article 35 of the Constitution of Zambia, which was in force during his first term. The authors highlight the national significance of this case, particularly its impact on the 2026 presidential elections and its potential to reshape opposition politics. The commentary further explores the power of an apex court to depart from its own precedents, affirming the Constitutional Court's inherent jurisdiction to do so under exceptional circumstances, aligning with practices in …

Innocence Lost: The Dangers Of Life Imprisonment For Children At Whose Pleasure: D.B. (A Juvenile) V. The People [2024] Zmca 339 (18 December 2024), Samantha Smit, Louis Koen

SAIPAR Case Review

This piece examines the Zambian Court of Appeal's decision to overturn a life imprisonment sentence imposed on juvenile offenders, replacing it with detention ‘at the President's pleasure.’ The commentary explores the legal implications of this discretionary sentence, drawing parallels with similar controversies in other African jurisdictions, particularly Kenya, where such sentences have been criticized for undermining constitutional rights and the doctrine of separation of powers. The authors argue that ‘detention at the President's pleasure’ can effectively amount to an indefinite sentence, raising concerns about the uncertainty of imprisonment duration for child offenders. They suggest that the Zambian court missed an …

Genealogy In Constitutional Law, Charles W. Tyler

Vanderbilt Law Review

Genealogy is a form of argument that seeks to discredit social phenomena by exposing their pernicious ancestry. In recent years, the U.S. Supreme Court has used genealogy to undermine key provisions of written law, doctrinal rules, longstanding practices, and private conduct in cases involving a wide range of constitutional issues.

After comprehensively documenting this development, this Article contends that genealogy can advance conclusions within several widely recognized modalities of constitutional interpretation. More specifically, genealogy can be used to undermine assertions of authority implicit in arguments from precedent, tradition, and ethos. And it can be used to reveal its object’s function …

Second Amendment: Incompatible Methodologies And The Bruen And Heller Opinions' Underlying Misalignment, Henry H. Robinson

Touro Law Review

In its 2022 Bruen opinion, the Supreme Court characterized the Heller opinion as having applied a “methodological approach” for interpretation of the Second Amendment. However, Bruen’s description and summary partially omitted, and was materially misaligned with, Heller’s actual reasoning. In Heller’s first step of constitutional interpretation, which addressed the first clause of the sentence comprising the Second Amendment, the opinion had selectively not applied the methodological approach described in Bruen; Heller’s first step had applied a different, incompatible methodological approach. Bruen’s description was aligned only with the second step of Heller’s constitutional reasoning, which had addressed the sentence’s second clause. …

Constitutional Federalism And The Nature Of The Union, Anthony J. Bellia Jr., Bradford R. Clark

William & Mary Law Review

Federalism is an essential feature of the Constitution’s design and structure, but the Constitution does not spell out every respective authority of the federal government and the States in precise detail. This omission has led some observers to embrace broad—if not unlimited—federal power and reject certain longstanding federalism doctrines—such as state sovereign immunity, the anti-commandeering doctrine, and the equal sovereignty of the States. The objection to such doctrines is that the Constitution does not affirmatively grant States these sovereign rights and powers. This charge overlooks long-forgotten background context essential to faithful interpretation of the Constitution. The former British Colonies in …

A Republic Of Spending, Jonathan S. Gould

Michigan Law Review

Large-scale spending measures make up many of Congress’s most important recent contributions to national policymaking. Congress has appropriated trillions of dollars to respond to emergencies, fight climate change, expand social safety net programs, spur technological innovation, and strengthen national infrastructure. While the contemporary Congress’s failure to enact landmark regulatory statutes causes many to characterize it as dysfunctional, Congress in fact remains quite active—its policymaking energy is simply concentrated in the spending domain.

Congress’s use of spending rather than regulatory legislation as its primary way of shaping national policy marks a significant shift in American governance. This Article examines the causes …

Reconstructing Citizenship, Jenny E. Carroll, James Jeter

Faculty Scholarship

In our republican democracy, voting is a central right of citizenship. Yet millions of voters are routinely disenfranchised as a result of convictions or because their carceral status creates barriers to voting. In the past decade, academic scholarship has focused on the impact of disenfranchisement based on conviction. This work has mapped the legal and social implications of policies that deny voting rights to over five million otherwise eligible voters nationwide. Yet this work has some gaps. First, by focusing solely on conviction-based disenfranchisement, the existing scholarship has largely ignored fatal barriers to voting created (and at times perpetuated) by …

Constitutional And Administrative Innovation Through State Labor Law, Kate Andrias

Faculty Scholarship

This Essay explores recent efforts by worker organizations to transform labor policy in states, as well as countermobilizations by business and conservative groups. It focuses on two particularly promising efforts: the development of worker standards boards and pro-labor changes to state constitutional law. It shows why, as a matter of political economy, such reforms have been achievable at the state and local levels, but not the federal level, and explores the potential of state reforms to build greater economic and political power for working people, notwithstanding limits imposed by federal preemption doctrine. Ultimately, this Essay argues that these recent innovations …

Affirmative Action’S Asian American Problem, Huyen Pham, Joseph Thai

Faculty Scholarship

Asian American opponents of affirmative action have received both credit and blame for their pivotal role in toppling racial preferences in university admissions in Students for Fair Admissions v. Harvard (SFFA). Allied conservatives highlighted evidence of discrimination against Asian American applicants as a compelling reason to dismantle affirmative action; liberals either denied this discrimination existed or tolerated it as an acceptable cost of helping other minority applicants. But largely unacknowledged is the precipitating history of the Supreme Court’s marginalization of Asian American applicants and its decades of tacit approval of their exclusion from affirmative action programs. This unwritten …

The Power Of All: Tort In The Age Of Constitution, Cristina Carmody Tilley

Faculty Publications

Life in a multicultural nation can be fraught. The United States is a case in point, with hostile tension between members of competing identity groups playing out today on streets, in offices, and across the media. Modern Americans assume that bridging race, gender, and class inequity is the stuff of public—constitutional—law. This assumption follows the lead of modern American lawyers, who migrated to this body of law just as historians, sociologists, and economists began to insist that the private law of tort was exclusively concerned with the accidental physical harms inevitable in a modern economy. According to this econostory, tort …

Transcript: Structural Racism, The Healthcare System And Health Justice, Ruquaiijah Yearby

Journal of Law and Health

The following is a transcript from Racial Disparities and Outcomes presented at Cleveland State University College of Law by the Journal of Law and Health on Friday, February 9, 2024. This transcript has been lightly edited for clarity and to reflect updates in the relevant law since the time of transcription.

Transcript: Rethinking Federalism In Health Care, Allison Whelan

Journal of Law and Health

The following is a transcript from Racial Disparities and Outcomes presented at Cleveland State University College of Law by the Journal of Law and Health on Friday, February 9, 2024. This transcript has been lightly edited for clarity and to reflect updates in the relevant law since the time of transcription.