Constitutional Law Commons^™

Respect And Submission In Contexts Of Transition: Reviewing Judicial Interpretation From R V Drybones To R V Montour, Joshua Nichols

Osgoode Hall Law Journal

Since the Truth and Reconciliation Commission of Canada's call in 2015 for the adoption and implementation of the United Nations Declaration on the Rights of Indigenous Peoples (UN Declaration), Canada has seen significant legislative developments. Notably, the Declaration of the Rights of Indigenous Peoples Act (DRIPA) in British Columbia, the United Nations Declaration on the Rights of Indigenous Peoples Act (UNDRIPA) at the federal level, and subsequent amendments to the Interpretation Act in British Columbia have introduced innovative frameworks for procedural implementation. However, these legislative actions pose unique challenges, particularly in their interpretation by the judiciary.

This paper navigates through …

The Unfulfilled Promise Of Obergefell For Children Of Lgbtq+ Parents: Advancing Non-Discrimination Laws For Familial Association, Jeffrey Dodge

Faculty Scholarship

Since the 2015 Obergefell v. Hodges decision, same-sex marriages have increased significantly in the United States. The American Community Survey data collected in 2022 shows that there are around 1.3 million same-sex couple households in the country, up from 565,000 in 2028. Just over half of these couples are legally married, up nearly 400% from prior to Obergefell. This data not only shows the significance of Obergefell for the LGBTQ+ community, but it also frames a generational shift in attitudes on marriage and family.

With the rise in same-sex couples accessing marriage has come greater visibility, representation, and acknowledgement. …

Fear And Free Speech, Helen Norton

Publications

No abstract provided.

Competitive Populism, Madhav Khosla

Faculty Scholarship

The preoccupation of comparative constitutional lawyers over the past decade or so has been the rise of authoritarian populism. This chapter focuses on one possible pathway that might follow our present political moment: competitive populism. This phase will involve a certain kind of institutional vacuum: the prior institutions, associated with liberal constitutional democracy, will not lend themselves to being rebooted. In reflecting on this possible future, this chapter explores the nature and form of deinstitutionalization that has occurred under authoritarian populism, and the elements that define the emerging constitutional framework. The implication here is that what will be crucial …

Takings Doctrinalization, Gerald S. Dickinson

Washington and Lee Law Review

The U.S. Supreme Court’s takings jurisprudence is shaped by an unusually strong reliance on doctrinalist methods of interpretation and reasoning. From Pennsylvania Coal Co. v. Mahon to Penn Central Transportation Co. v. City of New York to Kelo v. City of New London, the Court heavily consults its past takings decisions or refers to the tests, principles, or standards from those decisions as epistemic guides to draw meaning from the Takings Clause. This long history of takings doctrinalization, however, was abruptly disturbed in Nollan v. California Coastal Commission and Dolan v. City of Tigard. There, Justices Scalia and …

Is Federal Question Jurisdiction Arising Or Setting, Lumen N. Mulligan

Faculty Works

In this essay, I respond to Professor Arthur D. Hellman. Hellman argues that "there is reason to be concerned that the [federal] judicial system falls short of the Framers' expectations--primarily by denying many litigants in cases presenting federal questions 'their real day in an Article III court,' but also by fostering 'balkanization' rather than uniformity in the interpretation of federal law." It is a privilege to comment upon Hellman's thoughtful piece. In doing so, I begin by questioning the value of originalist interpretations of Article III jurisdiction both descriptively and normatively. I then turn to an intra-originalist critique that paints …

Standing On Slippery Ground: Pfas Products, Article Iii Standing, And The Case For Legislative Action, Bren J. Chaisson

Student Competition & Published Writings

Can implementing a new statute fix the standing obstacle that many cases involving per- and polyfluoroalkyl substances (PFAS) face? PFAS are a classification of thousands of common chemicals that cause a variety of adverse health effects. Hardwick v. 3M Co. highlighted the issue plaintiffs have with establishing standing when bringing forth a case. The plaintiff’s alleged injury was the presence of five specific PFAS in his bloodwork. The 6 th Circuit Court of Appeals held that the plaintiff, a firefighter who often used PFAS-contaminated foam, was unable to demonstrate that the defendants, several PFAS manufacturers, were responsible for the PFAS …

Controlling The Mischief Of New York’S Foreclosure Abuse Prevention Act Through Constitutional Pre-Emption, Shelby D. Green

Elisabeth Haub School of Law Faculty Publications

FAPA aimed to ease the burdens of long-delayed foreclosure proceedings by restating the operation of the statute of limitations. It contains provisions across several sections of state statutes that specify that once the six year statute of limitations on actions to foreclose commences, typically by the acceleration of the balance due on the promissory note and commencement of suit, it continues to run, even after the parties have entered into a workout agreement and have dismissed the complaint. By express terms, the Act had immediate effect, such that those lenders who withdrew complaints pursuant to a workout agreement before the …

The Problematic Nature Of Punishment For Secret Taping, Carol M. Bast

University of San Francisco Law Review

No abstract provided.

Hallows Lecture: Resorting To Courts Or To Community Conversations? Article Iii Standing As The Guardian Of Free Speech And Democratic Self-Governance, Michael Y. Scudder

Marquette Law Review

None.

Reform For Realists: The False Promise Of Condorcet Voting, G. Michael Parsons, Rachel Hutchinson

Marquette Law Review

As Americans grow disenchanted with democracy, many scholars suggest that election reforms may offer a path forward. The fastest growing of these reforms is ranked choice voting (RCV). In RCV elections, voters rank candidates in order of preference: first, second, third, and so on. The candidates with the least support are eliminated, and ballots that ranked those candidates count for their next choice instead. This method has over a century of use in public elections and provides proven benefits well-suited to many of the problems facing our country.

Yet some social choice theorists now argue that reformers have backed the …

“Digital Integrity”: Defending The Judicial Integrity In The Digital Age, Guy Alon, Doron Menashe, Guy Itzhak Sender

Touro Law Review

Recent revelations have shown that the protection of the Fourth Amendment in the digital age is inadequate. Despite well-known exclusionary rules regarding evidence obtained by illegal search and seizure, current trends in the digital age and the law of evidence resulted in courts that tend to include such evidence, and by doing so, create significant risk of both substantive and procedural errors and hence increase the potential for wrongful convictions. To address the matter and try to empower and modernize the protection given by the Fourth Amendment, this article suggests performing a revolution in the law of evidence in the …

Defeating Antisemitism In The World’S First Democratic Republic: The American Revolution And Jewish Legal And Political Equality, Paul Finkelman, Lance J. Sussman

Touro Law Review

At a moment when antisemitism is on the rise in the United States, we believe it is useful to consider how the American Revolution led to the first nation in the world where antisemitism was fundamentally contrary to the national constitution and Jews were entitled to full rights as citizens of the national government. As we explain in this article, during and after the Revolution, Jews were free to participate in all professions and general civic life, naturalize (if immigrants), vote, serve on juries, become lawyers and judges, become military officers, and attend universities. Jews had almost none of these …

Variable Standards: How Many Uninjured Class Members Are Acceptable?, Tom Flesher

Touro Law Review

Purchasers of canned tuna filed a class action against tuna producers after a price-fixing scheme raised prices above competitive levels. To be certified, a class must include only members who have suffered an injury, in this case by paying a higher price than they would have in the absence of price-fixing, but it was difficult to identify which plaintiffs were uninjured and should be excluded. Dueling statistical models failed to resolve this uncertainty, with one model suggesting up to one in every three class members was not injured at all. The Ninth Circuit nonetheless allowed this class to be certified, …

On Guido Calabresi, Roger K. Newman

Touro Law Review

Few individuals have had as long and as influential a career in law as Guido Calabresi. Cofounder of the field of law and economics, teacher, dean, and judge, he has inspired (and infuriated) multitudes. On the United States Court of Appeals for the Second Circuit, where he has served for thirty years (while continuing to teach until recently), his creativity and doctrinal innovations continue apace. He has urged the academy, legislature, and bench alike to engage in continuing conversation to improve the law and its effect upon those to whom it acts. One of these areas is certification—the practice of …

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, …

Controlling The Mischief Of New York’S Foreclosure Abuse Prevention Act Through Constitutional Pre-Emption, Shelby D. Green

Touro Law Review

No abstract provided.

Loopholes Of Liberty: The Supreme Court’S Evisceration Of The Fourth Amendment, David J. Looney

Touro Law Review

The Fourth Amendment’s protections against unwarranted government intrusion are currently undermined by the Supreme Court’s third party and open fields doctrines, which permit warrantless access to shared data and private land beyond a home’s curtilage, clashing with the Amendment’s aim to safeguard privacy and property in an era of advanced surveillance. These doctrines enable arbitrary governmental overreach, necessitating urgent review to restore constitutional protections. Rooted in Enlightenment principles, the Fourth Amendment historically protected “papers” and “effects” from physical trespass, as seen in Boyd v. United States. Katz v. United States introduced a “reasonable expectation of privacy” test, but its subjective …

Evaluating Competitive Equality: The Department Of Education’S Regulations And Impact On Title Ix In Women’S Sports, Lola-Marie Pyros

Touro Law Review

Title IX was enacted to guarantee women equal opportunities in athletics by preserving competitive fairness. That objective has been challenged by evolving policies on transgender participation in women’s sports. Proponents of inclusion frame the issue as a matter of civil rights, while opponents emphasize physiological differences between the sexes that remain even after medical transition. Shifting interpretations by the Department of Education, influenced by changes in presidential administrations, have created legal uncertainty, culminating in Tennessee v. Cardona, which rejected an expansive definition of “sex” to include gender identity. This Note argues that maintaining the integrity of women’s athletics requires recognition …

Menguak Status Dan Legalitas Rupiah Digital Sebagai Legal Tender (Perspektif Teori Keadilan Bermartabat), Sylvia Setjoatmadja, Jeferson Kameo

Jurnal Hukum & Pembangunan

Digital technology and modern telecommunications have been and will continue to be key factors in the emergence of various innovative products. One such innovative product is digital currency, specifically Central Bank Digital Currency (CBDC). In Indonesia, advancements in digital technology and telecommunications have encouraged the government to issue a CBDC, which will be named Digital Rupiah. The initiative to issue Digital Rupiah also responds to global trends and the public's need for secure, efficient, and sustainable payment instruments.

However, the plan to issue Digital Rupiah is not without challenges, particularly regarding the clarity of its legal status as a lawful …