Constitutional Law Commons^™

The Public Trust Doctrine And Lake Abert: Saving Oregon’S Only Salt Lake, Joseph Arzt

Lewis & Clark Law Review

The public trust doctrine creates a relationship between states and their citizens under which the states are entrusted with protecting natural resources for public use. Though Oregon recognizes the public trust doctrine, recent decisions from Oregon’s Supreme Court have displaced and fractured this doctrine, leaving the current legal landscape surrounding the public trust doctrine in disarray. This Note focuses on Lake Abert, Oregon’s only saline lake, which in recent years, due to mismanagement and neglect, has undergone dramatic ecological shifts. By looking at arguments rooted in Oregon’s Constitution, as well as judicial approaches taken in neighboring states, this Note examines …

Survival Of The Social Interest: Redefining The Bruen Standard To Protect Women From Violence Through United States V. Rahimi, Katelyn M. Sundstrom

Lewis & Clark Law Review

This Note explores the intersection of gun rights and gender-based violence within the U.S. legal system. It delves into the pervasive issue of domestic violence and explores the 2022 Supreme Court decision in New York State Rifle & Pistol Association v. Bruen, which rejected the use of “interest balancing” in evaluating gun regulations in favor of a purely historical and traditional approach. This shift placed significant legal scrutiny on existing firearm restrictions, including 18 U.S.C. § 922(g)(8), which prohibits individuals subject to domestic violence restraining orders from possessing firearms.

The analysis centers on the 2023 case United States v. Rahimi, …

Money Talks: The Disproportionate Influence Of Corporations On U.S. Governance Today, David C. Hayter

Lewis & Clark Law Review

Corruption: “Dishonest or illegal behavior especially by powerful people (such as government officials . . . )”; and “inducement to wrong by improper or unlawful means (such as bribery).”

What does the word “corruption” first bring to mind? For some, maybe a foreign country—where political regimes blatantly use the government as a tool to further personal agendas or gains without due consideration of the citizenry. For others, a fictional movie or TV show depicting politicians and police officers providing protections to mafia members in exchange for cash. No matter what comes to mind, many today think of corruption as manifested …

A Crust Of Bread: Religious Resistance And The Fourteenth Amendment, Kurt T. Lash, Stephanie Hall Barclay

Law Faculty Publications

In Employment Division v. Smith, the U.S. Supreme Court denied heightened constitutional protection to religiously motivated exercise burdened by neutral and generally applicable laws. The history presented in this Article suggests that the Smith approach conflicts with the original understanding of the Fourteenth Amendment. Out of the crucible of religious abolitionist resistance to the Fugitive Slave Act emerged a substantive theory of constitutional religious freedom: American citizens should have the right to obey the Biblical command to care for the needy and provide the hungry a "crust of bread," even if doing so was contrary to neutral and generally …

The Beleaguered Sovereign: Judicial Restraints On Public Enforcement, Luke P. Norris, Helen Hershkoff

Law Faculty Publications

Looking back at the federal courts over the last generation, commentators will likely focus on their role in undermining the functioning of the regulatory state. Well-acknowledged in this story are Supreme Court decisions that have constrained administrative agencies under the newly minted “major questions” doctrine, as well as the Court’s blockbuster decision overruling the longstanding Chevron doctrine. The Court also has made it increasingly difficult for individuals—often workers and consumers, people of color, women, and those who live from paycheck to paycheck—to seek federal judicial redress for regulatory violations as private enforcers. And the Court has questioned whether certain private …

The Tenth Anniversary Of Marriage Equality: How Traditional Marriage Law Led To Constitutional Protection For Same-Sex Marriage, Joanna L. Grossman

Faculty Journal Articles and Book Chapters

This essay explores how the history of interstate marriage recognition law was central to the Supreme Court’s recognition of constitutional protection for the right of same-sex couples to marry. Prior to the 1990s, there were essentially no laws on same-sex marriage in the United States. That changed in the 1990s, when the Hawaii Supreme Court issued a ruling in Baehr v. Lewin that made authorization of same-sex marriage seem inevitable in that state. The threat fueled the adoption first of the federal Defense of Marriage Act (DOMA) in 1996 and then mini-DOMAs in most states. Those laws were broad and …

Reevaluating Felon-In-Possession Laws After Bruen And The War On Drugs, Laura Ginsberg Abelson

Faculty Journal Articles and Book Chapters

The legal landscape surrounding firearm possession is evolving rapidly. In 2022, the Supreme Court accelerated its expansion of the individual right to bear arms under the Second Amendment in New York Rifle & Pistol Ass’n v. Bruen. Since Bruen, courts around the country have struck down nearly all types of firearm regulations, with a notable exception: felon-in-possession laws. This Article examines the implications of a legal landscape where those who have prior felony convictions, and especially prior drug convictions, are punished harshly for the same behavior—possession of a firearm—that is constitutionally protected for nearly everyone else. I argue …

Rethinking Juror Impartiality, Anna Offit

Faculty Journal Articles and Book Chapters

Jury impartiality in the contemporary court often justifies the perpetuation

of exclusionary selection practices that make juries more—not less—biased.

This Article calls for a rethinking of this important but flawed concept. Constitutional

interpretations and conceptions of “impartiality” frame it as a transient

orientation toward particular evidence or parties. Yet, during voir dire, the prevailing

conception of jury impartiality is that it is an immutable character trait

that must be discovered—if not created—by professional legal actors. What voir

dire creates is not an impartial jury, but precisely the opposite: a venire shaped

by the strategic biases of lawyers.

This Article offers …

Incarceration Reimagined: A Diversionary Option For Serious Felony Offenders, Jane Mitchell

Kentucky Law Journal

No abstract provided.

“Forced Worship Stinks In God’S Nostrils”: The Inquisition, Sepharad, And The American Experiment, Isaac Amon

Touro Law Review

In December 1791, the Bill of Rights, comprising the first 10 amendments to the U.S. Constitution, enshrined fundamental protections for individual freedoms, with the First Amendment guaranteeing liberty of conscience. This milestone, however, was the culmination of centuries of struggle. The arrival of Iberian Jews, including conversos, in North America played a pivotal role in shaping the course of American history. The Founders referenced the Inquisition in their letters and debates, particularly in discussions on legal protections for criminal suspects and the broader issue of religious liberty. Founding assurances of religious freedom to Jews and Christians stand in stark contrast …

Trading Places: The Intersection Of Lgbtq Rights And Zionist Rights Under Federal Civil Rights, Marc A. Greendorfer

Touro Law Review

While antidiscrimination laws have a long history at both the federal and state levels, the scope of coverage for these laws has evolved based on nuanced interpretations of terms that previously had established, static meanings. Many antidiscrimination laws prohibit discrimination on the basis of generic categorizations such as sex, religion or ethnicity but such terms are undergoing a rapid change in the way society understands and uses them. For example, sex, which historically has referred to biological gender at birth, now encompasses gender as well as sexual orientation. This article focuses on a recent Supreme Court decision relating to the …

Dekolonisasi Hukum Perdata Indonesia: Kritik Terhadap Warisan Kolonial Dan Implikasinya Terhadap Pembangunan Hukum Berkeadilan, R. Mustar Lofi

Jurnal Hukum & Pembangunan

Hukum perdata Indonesia hingga kini masih berada di bawah bayang-bayang warisan kolonial, terutama melalui keberlakuan Burgerlijk Wetboek (BW) 1848 yang diwarisi dari Belanda. Meskipun berbagai peraturan baru telah diundangkan, fondasi utama hukum perdata belum sepenuhnya lepas dari struktur, nilai, dan cara pandang kolonial. Artikel ini mengkaji secara kritis bagaimana dominasi hukum kolonial masih berpengaruh dalam pembentukan dan penegakan hukum perdata di Indonesia, serta mengapa dekolonisasi menjadi penting dalam pembangunan sistem hukum yang berkeadilan. Dengan menggunakan pendekatan yuridis-normatif dan analisis interdisipliner dari perspektif sosiologis hukum dan filsafat hukum, tulisan ini menelusuri bagaimana warisan hukum kolonial menciptakan ketimpangan, terutama dalam hal akses …

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, …

Resisting Federal Preemption, Desiree Leclercq

Scholarly Works

One of the most pressing issues in constitutional law is how states may—and should—resist federal preempting laws and policies with which they disagree. It’s a problem faced by red and blue states alike in an age of extreme political polarization. Despite having legitimate reasons to resist the federal government on matters that affect local citizens and interests, states seem to have few options. Conventional wisdom is that they engage in either direct resistance through litigation that challenges the constitutionality of preempting laws, or evasion by quietly enacting arguably non-compliant laws hoping to avoid enforcement. Both strategies adopt a belligerent stance …

Perfecting Our Submission? Mann And Trump, Ruffin And Roberts, Joseph S. Miller

Scholarly Works

Presidential power is vast, both under law and in practice. Who holds presidents accountable, and by what means? Courts wrestle with these intertwined questions of power and accountability. The majority opinion in the 2024 presidential immunity case, Trump v. United States, is eerily resonant, rhetorically, with a notorious judgment enhancing one person’s power over others by shielding that power utterly from criminal-law accountability. That judgment, from 1829, is Judge Thomas Ruffin’s infamous slavery-law opinion for the North Carolina Supreme Court in State v. Mann. I juxtapose the two opinions, which share jarringly similar claims about the nature of power, rule, …

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.

Indigenous Governance And The Charter: What Can Indigenous Constitutionalism Offer?, Karen Drake

All Papers

The question of whether the Charter should apply to Indigenous governance is often presented in terms of a contest between Indigenous self-determination and protections for vulnerable individuals. The two judgments applying the Charter in the Supreme Court of Canada’s decision in Dickson v. Vuntut Gwitchin First Nation exemplify this dichotomy. This approach, however, reflects a false dilemma; it overlooks Indigenous constitutionalism’s ability to resolve the kinds of issues that the Charter aims to resolve, but without sacrificing Indigenous self-determination. To illustrate this point, this article applies one form of Indigenous constitutionalism— Anishinaabe constitutionalism grounded within an Anishinaabe lifeworld—to the fact …

Equitable Incorporation: How History And Tradition Can Progressively Redefine The Fourteenth Amendment, Robert D'Alessandro

Cardozo Journal of Equal Rights & Social Justice

The Fourteenth Amendment, designed to ensure equality before the law, has been misinterpreted by the Supreme Court through its incorporation doctrine, leading to rulings that harm marginalized communities. The article advocates for "Equitable Incorporation," a doctrine requiring courts to consider the impact of their decisions on historically discriminated groups, ensuring the Amendment's purpose of equity and justice is upheld. This approach would necessitate the incorporation of unincorporated rights and reinterpret existing ones to reflect the Amendment's equitable intent.

The Violence Of Bright Lines, Terrell Woolfolk, Kathryn E. Miller

Articles

The U.S. Supreme Court interprets the Eighth Amendment to prohibit members of certain groups from serving extreme punishments, such as the death penalty and life without parole. For example, the Court has long banned death sentences for people with intellectual disability and for those who were under eighteen years old at the time of their crime. More recently, in Graham v. Florida and Miller v. Alabama, the Court extended this reasoning to sentences of life without parole for those under eighteen—prohibiting the sentence altogether for nonhomicide crimes and barring its mandatory imposition for homicides.

Many scholars and advocates have applauded …