Constitutional Law Commons^™

Front Matter

DePaul Business & Commercial Law Journal

No abstract provided.

Rules & Laws For Civil Actions: 2025 Ed., Stella Burch Elias, Derek T. Muller, Jason Rantanen, Caroline Sheerin, Maya Steinitz

Books

Rules and Laws for Civil Actions is an open-access resource for law students containing the U.S. Constitution, Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and selected federal and state statutes. The book was created by a team of faculty members at the University of Iowa College of Law to supplement the study of Civil Procedure, Evidence, Constitutional Law, and other law school courses. In addition to containing the official text, each legal source found in Rules and Laws for Civil Actions is accompanied by an introductory section written by an Iowa Law professor …

State Constitutional Prohibitions Of Slavery And Involuntary Servitude, Michael L. Smith

Washington Law Review

In recent years, the Thirteenth Amendment has drawn sustained criticism for its “Punishment Clause,” which exempts those duly convicted of criminal offenses from the Amendment’s prohibition of slavery and involuntary servitude. Citing the Punishment Clause, courts have struck down challenges by those sentenced to forced labor, arguing that such involuntary servitude is explicitly permitted for those convicted of crimes. Recent criticism draws on concerns over mass incarceration and expansive forced labor practices—urging that the Thirteenth Amendment be revised to remove the Punishment Clause.

Prompted by increased attention to and criticism of the Punishment Clause, some states have taken matters into …

The Penal Judgment Exception To Full Faith And Credit: How To Bind The Bounty Laws, Walker Mckusick

Washington Law Review

In the current moment of interstate friction over abortion, the penal judgment exception poses a barrier against interstate enforcement of bounty laws. A doctor who prescribes a medicated abortion to a Texas patient may be exposed to civil liability—even in faraway Washington State. A Washington court asked to enforce a Texas judgment against the doctor is subject to the Full Faith and Credit Clause. Article IV, Section 1 of the United States Constitution mandates that each state give full faith and credit to judgments rendered in sister states. Under Texas Senate Bill 8 (S.B. 8), any member of the public …

Free Speech Originalism: Unconstraining In Theory And Opportunistic In Practice, Caroline Mala Corbin

Articles

Courts should not apply originalism in freedom of expression cases. Originalists claim that originalism prevents judges from imposing their own views. It does not-not in theory and not in practice. Instead, as the treatment of hate speech bans suggests, it is not principles but outcomes that determine whether and which version of originalism is used. Moreover, a true originalist First Amendment would likely lead to impoverished free speech protections.

Part I provides background on original public meaning originalism, the iteration of originalism currently favored by scholars. It also explains how the theory falls short of its original promise of limiting …

Actions Speak Louder Than Words: The Supreme Court Of Georgia Textualizes “Action” In The Georgia Constitution, Abigail C. Letts

Mercer Law Review

It comes as no surprise to those tuned into Georgia jurisprudence—textualism has taken root in the Supreme Court of Georgia. Since a series of holdings in the late twenty-tens including Olevik v. State, Georgia courts have produced a steady stream of decisions committed to pointing legal interpretation back to the intent of the framers. At first glance, the court’s proclamation in State v. SASS Group, LLC that “action” as it is used in Article I, Section II, Paragraph V(b) of the Georgia Constitution refers to an entire lawsuit appears simply to be another instance of the court’s staunch commitment …

Economic Security And The Separation Of Powers, Kathleen Claussen, Timothy Meyer

Articles

The U.S. Constitution grants Congress the power "[t]o regulate Commerce with foreign Nations," but today the exercise of the foreign commerce power resides primarily with the executive branch. That transfer of control is partly the result of significant delegations of responsibility for managing foreign commerce from Congress to the executive. It is also, however, the result of the securitization of foreign commerce. The executive branch asserts that foreign commerce issues fall under its constitutional powers over foreign affairs, and, thus, that it enjoys authority over foreign commerce that exceeds the scope of congressional delegations.

This Article makes three contributions. First, …

Standing And Probabilistic Injury, Curtis A. Bradley, Ernest A. Young

Michigan Law Review

Standing to sue often turns on questions of probability. For example, public law plaintiffs must show that they are likely to be affected by allegedly unlawful government surveillance or environmental policies, and consumers may wish to sue private defendants over false credit reporting or data breaches that may or may not cause them financial or reputational harm in the future. This Article offers a framework for resolving a wide range of these “probabilistic standing” issues. Our core claim is that courts and commentators ask too much of standing doctrine in probabilistic cases. First, scholars sometimes seek a unified theory of …

Populists In Power And Constitutional Counternarratives, Giuseppe Martinico

Cardozo Law Review

In this essay I shall comment on A Pluralist Theory of Constitutional Justice by Professor Michel Rosenfeld, by developing three points that have to do with the legacy of Carl Schmitt’s constitutional theory. The first is about the progressive weaponization of constitutional law that characterizes what I call the populist constitutional counternarrative. In particular, I will explore how populists in power use constitutional law. The second point has to do with the notion of constituent power in a context of comprehensive pluralism. The third point is about the relationship between constitutionalism and political theology. The intuition behind this is that …

The Birth Of The Civil Death Penalty And The Expansion Of Forced Adoptions: Reassessing The Concept Of Termination Of Parental Rights In Light Of Its History, Purposes, And Current Efficacy, Chris Gottlieb

Cardozo Law Review

The legal construct of termination of parental rights—the act of permanently severing the legal relationship between parent and child—is deeply embedded in contemporary American child welfare law. Indeed, since the passage of the Adoption and Safe Families Act of 1997 (ASFA), it can fairly be said that our entire foster care system is structured around the threat of terminating parental rights. From the day a child is taken into state-supervised care, the clock begins ticking toward the possible permanent destruction of the parent-child relationship. In response to the financial incentives in ASFA that reward states for terminating parents’ rights, states …

Perspectives On The Constitution Of The War On Drugs: A Collection Of Posts From The Balkinization Blog, Douglas A. Berman, Rachel Barkow, Louis Michael Seidman, Kimani Paul-Emile, Jennifer D. Oliva, Shaun Ossei-Owusu, Katherine Shaw, Paul Butler, David E. Pozen

Faculty Scholarship

This collection of essays provides extended commentary from multiple law professors on David Pozen’s 2024 book, The Constitution of the War on Drugs. Pozen’s book provides a rich and astute perspective on a wide array of dynamic legal, political, and social stories at the intersection of constitutional jurisprudence and drug policy. The work is the first book in Oxford University Press’s Inalienable Rights series to be fully open access. Yale Law Professor Jack Balkin, recognizing the book engaged many historical and cutting-edge issues in the fields of constitutional law, criminal law and health law, invited professors in these fields …

Rays Of Hope For The Administrative State, Peter L. Strauss

Faculty Scholarship

The assault on Chevron has not yet been resolved, but it is next to impossible to believe that the sensible Justices of the Court will go any further than to reaffirm that deciding questions of the scope of agency authority is exclusively for judicial resolution (though perhaps with Skidmore-like attention to the views of the agency, so much more familiar with its statutes as a whole). This was the position clearly taken by the Court in 1940, in United States v. American Trucking Ass’ns., and to go beyond it into decision, rather than review, of agency judgments would …

The Subfederal In Immigration Polarization, Huyen Pham, Pham Hoang Van

Faculty Scholarship

The framing of subfederal immigration regulation as a red- blue divide is conventional wisdom. As more states, cities, and counties have engaged in the regulation of immigrants within their jurisdictions, it is not particularly surprising to see deep-red states like Texas enacting laws that restrict the rights of immigrants in their jurisdictions (e.g., requiring police within the state to honor detainers issued by United States Immigration and Customs Enforcement (ICE)) or deep-blue states like California enacting laws that protect immigrants’ rights (e.g., issuing driver’s licenses without requiring proof of lawful immigration status).

Rather than only reflecting national polarization on immigration …

Examining The Constitutionality Of Legislative Medical Care Bans For Transgender Youth, John Mejia

Utah Law Review

As should be abundantly clear by this Article, the stakes of bans on genderaffirming health care for transgender adolescents are existential. The recent flood of state-law bans is a low point in the ongoing fight to ensure that all people truly enjoy the liberties and protections guaranteed by our state and federal constitutions. Stories like Utah’s are more likely the rule, not the exception. Legislatures around the country are rushing to push through this legislation as quickly as possible, seemingly to catch their opponents off guard. The overwhelming majority of federal district courts to consider these laws find them repulsive …

The Long Shadow Of Food Lion, Knight First Amend. Inst. (May 31, 2024), Alan K. Chen

Sturm College of Law: Faculty Scholarship

This essay discusses the continuing shadow of Food Lion, Inc. v. Capital Cities/ABC, Inc., which looms over the efforts of journalists and, increasingly of other citizens, to engage in undercover investigations to discover and disseminate truthful information on matters of profound public concern. At a time when many impediments to freedom of the press have emerged, legal barriers to undercover investigations suppress a key newsgathering tool that was once an important part of the news media ecosystem. After describing the extensive litigation battle in the case, the essay argues that the decision continues to cast a chilling effect over journalists …

Egypt’S Legal Modernism: Challenging The National Discourse, Mohamed A. El-Deeb

Theses and Dissertations

Egypt’s legal modernity is the story of the modern Egyptian state itself. Reforming the country’s judiciary in the late nineteenth century was meant to achieve ambitious aims beyond the functionality of a justice system. The utmost goal was the country’s independence from the suzerainty of the Ottoman Empire. The judicial reforms modernized the Egyptian state and built a judiciary and legal community like no other place. Egypt achieved its independent judiciary before gaining its political independence. That was a remarkable achievement of the judicial reform. That rich part of Egypt’s modern history is negated and disregarded from public awareness. Not …

The Modern Energizer Bunny - Hopping Into The Nuclear Energy Revolution: The Tenth Circuit's Analysis In New Mexico Ex Rel. Balderas V. U.S. Nuclear Regulatory Commission, Jack A. Mansur

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Criminalizing Transgender Care, Lewis Grossman

Scholarly Articles in Law Reviews & Journals

Since 2021, twenty-four states, in extraordinarily quick succession, have enacted statutes banning physicians from prescribing puberty blockers and cross-sex hormones to minors for treatment of gender dysphoria. Although the Food and Drug Administration has not approved these drugs for this use, off-label prescribing is a common practice, and leading medical organizations all agree that this off-label use of puberty blockers and sex hormones is an essential component of transgender medical care. These state laws thus represent an extreme, and unprecedented, interference with the provision of standard-of-care medicine. This article, after exploring the ongoing litigation challenging these bans, argues that they …

Virtual Confessions: Examining The Clergy Privilege’S Extension To Artificially Intelligent Religious Robots, Samuel N. Dick

The University of Cincinnati Intellectual Property and Computer Law Journal

Artificial Intelligence (AI) is fundamentally changing the world. AI’s rapid development is driving its integration into every industry, including those traditionally untouched by technology—such as religion. Today, faith groups in America and globally, are integrating AI-driven robots in roles traditionally held by human priests, clergy, or pastors. AI robots have begun giving sermons, conducting funerals/weddings, providing spiritual counseling, and conducting the sacrament of confession. Some faith groups have gone further claiming the worship of AI as an independent religion, and have received § 501(c)(3) tax-exempt status as a church. Whether thoughts of sacrileges, inevitability, or a science-fiction novel emerge, AI’s …

Constitutional Interpretation And Zombie Provisions, Michael L. Smith

Georgia State University Law Review

This Article analyzes the presence of zombie provisions in the United States Constitution and state constitutions and the danger that these provisions may influence the interpretation of still-living constitutional provisions.