Constitutional Law Commons^™

‘What Can A Comma Do?’: Re-Examining Victorian Criminalisation Of Obscenity Through The Flawed Interlinking Of ‘Decency Or Morality’ Under The Strain Of Modern Liberal Consciousness, Ratika Gaur

National Law School of India Review

This paper argues that the rhetorical nature of India’s post-independence obscenity jurisprudence stems from the interlinking of two distinct (behavioural v. normative) categories into the singular provision of ‘decency or morality’ under Article 19(2). This interlinking emerged amidst the socio-economic and cultural upheavals in Victorian England, wherein moral anxieties around the ‘visibility’ of obscenity reflected a crisis of political obligation within the modern liberal consciousness. Operating through the logic of deterrence, this consciousness criminalized obscenity due to its ideationally incapacity to accommodate liminal expressions—acts that were neither neatly civil, nor outright criminal, even when offensive. In this regard, one substantive …

Note By The Guest Editor, Siddharth Narrain

National Law School of India Review

Note by the Guest Editor.

Can Sports Leagues "Veto" Certain Online Sports Betting Wagers?, Jacob Comello

Catholic University Journal of Law and Technology

This comment will argue, in light of three Horseracing Integrity and Safety Act (HISA)-related Circuit Court cases and new guidance from the Supreme Court on the private nondelegation doctrine, that HISA provides a workable framework to resolve whether sports leagues can engage in rulemaking to prevent certain kinds of bets from taking place. Specifically, the Supreme Court and the Fifth, Sixth, and Eighth Circuits appear to have reached a large amount of common ground regarding the structure of the private nondelegation doctrine, and the Circuit Courts have found that much of HISA fits well within that structure. In light of …

At The Hart Of Immigration Reform: How Dhs’S New Biometric Database Will Infringe On The Privacy Rights Of U.S. Citizens, Permanent Residents, And Foreign Nationals, Calypso Moschochoritis

Catholic University Journal of Law and Technology

Immigration is a regular feature of American life; President Obama once described the U.S. as “a nation of immigrants.” Even as the host of more immigrants than any other nation, the American public has historically found immigration contentious. Since Congress has failed to agree on comprehensive immigration reform, this responsibility has moved to the executive and judicial branches of government. In 2016, the Department of Homeland Security (DHS) began working on the Homeland Advanced Recognition Technology (HART) Program, a new biometric information management system, to replace IDENT (Automated Biometric Identification System), DHS’s current biometrics database. HART will join other initiatives …

Judicial Economy In The Age Of Ai, Yonathan A. Arbel

Articles

Individuals do not vindicate the majority of their legal claims because of access to justice barriers. This entrenched state of affairs is now facing a disruption. Lawyers and non-lawyers alike are adopting artificial intelligence (AI) tools to perform legal tasks tools that sharply reduce the costs of generating legal materials. There is finally hope that AI might allow many more to access justice.

Paradoxically, what we gain in access to justice we might lose in the delivery of justice. The problem is not that AI tools are ineffective. Indeed, they are even more effective than most realize affecting every stage …

Minor V. Happersett, Dobbs V. Jackson Women's Health Organization, And The Supreme Court's Refusal To Reconstruct America, Henry L. Chambers Jr.

Law Faculty Publications

One hundred and fifty years ago, in the wake of the ratification of the Reconstruction Amendments, the United States Supreme Court decided Minor v. Happersett. In Minor, the Court ruled Missouri could continue to deny women the right to vote based on their sex. The decision was simply reasoned. In the absence of clear constitutional text requiring Missouri to provide the right to vote to women or proof that the right to vote was a right of citizenship, Missouri had no obligation to allow women to vote. Some states had banned women citizens from voting since the country’s founding. Missouri …

In Search Of A State, Maeve Glass

Faculty Scholarship

This article offers a legal history of one of America’s earliest campaigns of state legislative resistance: the effort in Massachusetts to protest the national government’s perceived dismantling of an old Atlantic commercial order from 1803 to 1815. To date, scholars have either condemned this protest as a dangerous harbinger of the Civil War or vindicated it as an inevitable and salutary extension of the Founding. This article steers a different course. By focusing on the evolving language of protest and the complex hybrid of ideas and material realities from which this language emerged, this article illuminates how Federalist leaders who …

Loper Bright And The Great Writ, Anthony G. Amsterdam, James S. Liebman

Faculty Scholarship

Chevron deference is dead. The Court’s forty-year, seventy-decision experiment with Article-III-court deference to “reasonable” agency interpretations of ambiguous federal statutes failed, killed in part by concern that it unduly curbed the “judicial Power” to enforce the rule of law in the face of politics, partisanship, and mission-driven agency decision-making.

“AEDPA deference” lives. The Court’s twenty-five-year, seventy-two decision experiment with Article-III-court deference to “reasonable” state-court interpretations of the Constitution under the 1996 Antiterrorism and Effective Death Penalty Act continues to relegate criminal defendants to prison or death, notwithstanding federal habeas judges’ independent judgment that the state courts have misread or misapplied …

Popular Originalism, Thomas G. Donnelly

Law Faculty Publications

Scholars are obsessed with the Roberts Court’s recent turn to history and tradition. But another source of authority has also emerged as an important feature of the Roberts Court’s approach to constitutional cases. In previous work, I have referred to this source of authority as popular meaning. While original meaning identifies the best reading of the Constitution’s text at the time of its ratification, popular meaning draws on sources of authority outside the courts to capture the constitutional views of the American people today. In this Article, I demonstrate how interpreters might draw on the Constitution’s popular meaning to help …

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 …

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. …

Common Law Executive Privilege(S), Jonathan Shaub

Law Faculty Scholarly Articles

There are few Supreme Court cases that enjoy as much widespread support as the unanimous decision in United States v. Nixon. The recent pitched battles between Congress and the executive branch have made apparent the vast disagreement between the two branches over access to information. But that disagreement does not extend to Nixon, the unquestioned jurisprudential foundation for the doctrine of executive privilege. Closer inspection shows, however, that this foundation is not a stable one, but one constructed from unnecessary, ill-considered dicta.

As this Article demonstrates, Nixon conflated the constitutional question about one branch’s power vis-à-vis another branch with an …

Does The 25th Amendment Merit Reform?: The Challenge Of Determining Presidential Disability, Karena R. Andreassen

Honors Theses

This research project examines the persistent lack of use of the 25th Amendment to the United States Constitution in its original form, despite many calls for the reform of the language or expansion of its application as situations unfold. Adopted in 1967, the amendment was created to address the challenges of presidential succession and incapacity. However, historical events over the last few decades, such as the assassination attempt on Ronald Reagan, Reagan’s colon cancer, and the general increase in the age at which presidents assume office, have contributed to scrutiny over the amendments’ provisions. This study will explore why specifically …

A Constitutional View Of Administrative Agencies, Anthony J. Diego

Honors Undergraduate Theses

This research focuses on a nuanced area of American law and history: the constitutionality of administrative agencies. Determining their constitutionality requires a sound and fundamental understanding of administrative agencies’ history and purpose, as well as applicable constitutional principles. Reliance on core legal and historical documents founding the United States, as well as existing literature analyzing them, is essential to this determination. Administrative agencies have existed within the United States government since the Founding, though not without scrutiny and exception to government operations. Recently, Supreme Court precedent dramatically changed agency operative functions, making it now an opportune time to analyze the …

An Analysis Of Florida's Dual Enrollment Laws: How Florida's Model Is Uniquely Protected By The Fourteenth Amendment, William H. Hamman

Honors Undergraduate Theses

Florida’s dual enrollment program is an offering within the state’s basic education package, allowing secondary students to participate in postsecondary courses while simultaneously earning secondary and postsecondary credit. In Florida, around 80,000 students participate annually, and 1.5 million students are within the grade range eligible for participation in the program. This thesis analyzes how the program, and subsequently eligible students, are granted constitutional protections under the Fourteenth Amendment. The author conducted this research to highlight the expansive nature of constitutional law and demonstrate how Florida’s model is unique among state-mandated dual/concurrent enrollment programs. To conduct the necessary research, the author …

Electing The Supreme Court, Dmitry Bam

Faculty Publications

There is a curious irony in how we select United States Supreme Court justices. According to basic constitutional theory, as well as the arguments made by many leading Framers at the time of the Founding, one of the Court’s primary roles is to serve as a check on the executive and legislative branches when they exceed the constitutional limits imposed by the American people. Yet, we ask those very branches to jointly select the justices responsible for enforcing these limits, leaving the American people with only an indirect (if any) role in the process. Not surprisingly, the justices nominated by …

303 Creative, Exclusive Private Enforcement, And Blue-State Revenge, Howard M. Wasserman, Charles W. “Rocky” Rhodes

Journal of Legislation

Red states have made exclusive private enforcement schemes targeting locally unpopular but constitutionally protected conduct a cornerstone of culture-war legal strategy. Laws such the Texas Heartbeat Act (“S.B. 8”) in 2021 and anti-“WOKE” laws forego public enforcement in favor of private enforcement; this forces targeted federal rights-holders to vindicate their rights by raising the law’s constitutional invalidity as a defense to liability rather than through pre-enforcement offensive litigation against the government or government officials responsible for enforcing the law. This threatens rights-holders with a wave of costly and burdensome litigation and liability.

Blue states and liberal scholars and advocates have …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Denied By Dysfunctional Design: How The Dd-293 Application Form Thwarts Pro Se Veteran Applicants’ Discharge Upgrade Requests., Jessica Lynn Wherry

American University Law Review

Although most military service members receive an Honorable discharge at the completion of their service, thousands of former service members are discharged under less-than-honorable conditions, often for misconduct that is likely the result of a mental health condition, including post-traumatic stress disorder (PTSD ), traumatic brain injury, sexual assault, or sexual harassment. Veterans with a less-than-honorable discharge are ineligible for most veterans benefits. The consequences can be dire for these former service members, including homelessness, unemployment, mental health conditions, criminal involvement, and suicide. These veterans can restore their access to benefits by appealing to a military discharge review board, seeking …