Constitutional Law Commons^™

Emergency Powers For Good, Elena Chachko, Katerina Linos

William & Mary Law Review

Emergency powers are widely, and justly, criticized as threats to the rule of law. In the United States, forty-three declared emergencies give the executive vast authority to exercise power unencumbered by standard legal and procedural requirements. A long tradition of executive use of emergency powers to erode civil liberties amplifies fears of executive overreach.

Yet this, we argue, is only part of the picture. We examine how emergency powers can be used for good. We argue that under certain limited conditions, political actors can legitimately invoke emergency powers to transform public policy. In addition to widely accepted requirements of crisis …

Women On Death Row In The United States, Sandra Babcock, Nathalie Greenfield, Kathryn Adamson

Cardozo Law Review

This Article presents a comprehensive study of forty-eight persons sentenced to death between 1990 and 2022 who were legally recognized as women at the time of their trials. Our research is the first of its kind to conduct a holistic and intersectional analysis of the factors driving women’s death sentences. It reveals commonalities across women’s cases, delving into their experiences of motherhood, gender-based violence (“GBV”), and prior involvement with the criminal legal system. We also explore the nature of the women’s crimes of conviction, including the role of male codefendants and the state’s use of aggravating factors. Finally, we reveal …

Make America Fake Again?: Banning Deepfakes Of Federal Candidates In Political Advertisements Under The First Amendment, Sophie Loewenstein

Fordham Law Review

In recent years, artificial intelligence (AI) technology has developed rapidly. Accompanying this advancement in sophistication and accessibility are various societal benefits and risks. For example, political campaigns and political action committees have begun to use AI in advertisements to generate deepfakes of opposing candidates to influence voters. Deepfakes of political candidates interfere with voters’ ability to discern falsity from reality and make informed decisions at the ballot box. As a result, these deepfakes pose a threat to the integrity of elections and the existence of democracy. Despite the dangers of deepfakes, regulating false political speech raises significant First Amendment questions. …

Privacy Law’S Role In An Information Economy, Sari Mazzurco

Cardozo Law Review

What do we lose when we lose our privacy? A slew of recently enacted state laws suggest that the loss of privacy is merely a loss of individual choice in the market exchange of services for personal information. This Article argues that a loss of privacy risks something greater: the collapse of complex and fluid social identity. Without privacy, individuals cannot nurture their own senses of self because they are no longer free to try on different social roles across diverse relationships. Pervasive, private data collection threatens multifaceted selfhood by eliminating the boundaries that make social roles distinct and hindering …

How To Impeach A Verdict: A Response To Melanie C. Regis, Cynara Hermes Mcquillan

Scholarly Works

No abstract provided.

Constitutional Disorder, Robert L. Tsai

Faculty Scholarship

This is a review essay inspired by two books: Yuval Levin's American Covenant (2024) and Erwin Chemerinsky's No Democracy Lasts Forever (2024). I make the following points. First, all treatments of the U.S. Constitution can be mapped on a continuum from the worshipful to the diagnostic. Second, Levin's account, which inclines toward the devotional, extols certain features deemed both originalist and virtuous: social unity over untidiness, consensus over dissent, fear and loathing of mass politics. Third, such accounts may not be sufficiently nimble to grapple with contemporary problems such as new forms of oligarchy or movement capture of traditional parties. …

Section Three Of The Fourteenth Amendment: Insurrection, Mark A. Graber

William & Mary Bill of Rights Journal

The public, scholarly, and legal debate over whether former president Donald Trump is eligible to hold office under Section Three of the Fourteenth Amendment has focused far more on technical legal questions than on whether Trump engaged in an insurrection. Scholarly and public commentary rarely examines the constitutional/ common law of insurrection, preferring instead to examine whether Trump is exempt from Section Three because Section Three either exempts presidents or the presidency from disqualification or because Section Three is not self-executing. Trump v. Anderson (2024) focused on state incapacity to disqualify “oathbreaking insurrectionists” rather than on whether Trump was an …

Is The Constitution Of 1787 A White Supremacist Document? Against Essentialism In Constitutional Interpretation, David S. Schwartz

William & Mary Bill of Rights Journal

A curious convergence is emerging in legal academia around the conclusion that the 1787 Constitution is a white supremacist document. Although most originalists would deny that contention, their methodology strongly favors, if it does not compel, an agreement with progressive, “neo-Garrisonian” scholars that the Constitution of 1787 is indeed a white supremacist document. Both the neo-Garrisonian and originalist elements of this implicit convergence stem from their “essentialism” in Constitutional interpretation: the idea that the Constitution or its terms or provisions carry a uniquely and objectively correct meaning, invariant over time, and independent of our evolving normative commitments.

This Article argues …

Balancing Tradition And Inclusion: Framework Principles For An Afghan Accord, M. Hamed Isar

William & Mary Bill of Rights Journal

This Article examines the turbulent constitutional history of Afghanistan and proposes a pragmatic constitutional framework balancing Islamic principles with rights, protections, and constraints on power. After analyzing the Taliban’s current extraconstitutional rule and ideological objections to an inclusive order, it makes the case for principled compromise. The first step to constitutional reform for Afghanistan is to recognize that Afghans, the Taliban, and the international community pay a high price for disregarding law and accountability in governance. To that end, this Article canvasses the many factors that could motivate the Taliban to accept the rule of law, despite the constraints it …

The First Amendment In Education: May Faculty At Public Schools Be Disciplined For Political Hate Speech?, Ken M. Levy

William & Mary Bill of Rights Journal

At a House hearing on December 5, 2023, the presidents of three universities— Harvard, MIT, and the University of Pennsylvania—refused to state that certain kinds of hate speech, specifically calls for genocide of Jews, are prohibited on their campuses. The backlash against two of them, Harvard’s Claudine Gay and Penn’s Liz Magill, was swift and devastating; both were successfully pressured to resign. Still, while Professors Gay’s and Magill’s responses were widely criticized as tone-deaf, they were legally correct. At many private, and all public, colleges and universities, even the worst hate speech is generally protected unless it is accompanied by …

Excluded But Equal, Gali Racabi

William & Mary Bill of Rights Journal

Work law is excessively exclusionary. Canonical examples include agriculture workers, independent contractors, and domestic workers. But work law excludes far more workers and employers than those familiar categories. Whole sectors, occupations, business sizes, wage arrangements, geographical areas, and more are excluded from the basic tenets of economic citizenship, including federal, state, and local minimum wage; overtime; and safety and labor protection laws.

Equal protection claims govern the authority of legislatures to determine who is in and who is out of work laws. Excluded workers and included employers now routinely use state and federal constitutional equal protection arguments against exclusionary work …

Life, Liberty, And Freedom From Non-Consensual Pelvic Exams?, Michaela Cotton

William & Mary Bill of Rights Journal

[T]here is a need for the federal government to intervene and finally ban the practice of performing non-consensual pelvic exams, and it can do so under the Due Process Clause of the Fourteenth Amendment, which guarantees the right to refuse involuntary medical treatment. Part I will provide a brief overview of pelvic exams and informed consent; Part II draws on policy considerations for banning this practice and tackles counter-arguments; Part III will discuss the relevant federal law and case precedent; Part IV demonstrates how federal law applies to non-consensual pelvic exams; and, finally, Part V will further explain the need …

Book Review: John Paul Stevens, The Making Of A Justice: Reflections On My First 94 Years, New York, Little, Brown And Co., 2019, Pp. 549, $35.00 (Hardback), Stephen Wermiel

Scholarly Articles in Law Reviews & Journals

The autobiography of Justice John Paul Stevens, published just a few months before he died, is an enticing travelogue for Supreme Court nerds. Other travelers may want to pick a different landscape.

Tinjauan Yuridis Pemberian Wilayah Izin Usaha Pertambangan Khusus Kepada Badan Usaha Milik Organisasi Kemasyaraktan Keagamaan Tanpa Mekanisme Lelang, Fajar Hidayansyah Ilham, Marchellina Shagyna Anggraeni

Jurnal Hukum & Pembangunan

Natural resources is one of the essential aspects of life and human existence. Indonesia is known as a country with abundant natural resources. Therefore, their management must be conducted transparently to prevent corruption and ensure that natural resources are managed in the most efficient and beneficial way fore the community. If natural resources controlled by the state are not managed based on principles reflecting justice, there is a potential that the benefits will only be enjoyed by a small group of people. The mechanism of granting Special Mining Business Permits (WIUPK) through auction is one way to embody the principles …

Analisis Perbandingan Struktural Dan Karakteristik Badan Usaha Milik Negara Indonesia Dengan Malaysia, Raihan Fathurrahman

Jurnal Hukum & Pembangunan

The comparative analysis of the structural and characteristic aspects of State-Owned Enterprises (BUMN) in Indonesia and Malaysia highlights differences in their approaches to managing these state-owned companies. In Indonesia, BUMN are regulated by Law No. 19 of 2003, which divides BUMN into Persero and Perum. However, bureaucratic structures with strict hierarchies and political intervention often hinder market efficiency and responsiveness. Meanwhile, Government-Linked Companies (GLCs) in Malaysia, under the supervision of Khazanah Nasional Berhad, demonstrate a more streamlined and flexible structure. They operate with higher autonomy and tight supervision, enabling quicker responses to market changes. In terms of governance, Indonesia applies …

Pengungkapan Model Mediasi Kepada Pihak Bersengketa Oleh Mediator Sebagai Pelaksanaan Prinsip Informed Consent (Kajian Mediasi Sektor Perbankan), Tri Harnowo, Fahmi Shahab

Jurnal Hukum & Pembangunan

The mediation techniques commonly used by mediators are facilitative, evaluative, or hybrid models. The choice of mediation model generally depends on the complexity of the dispute, the nature of the relationship, and the expectations for further cooperation. This research examines the application and disclosure of mediation models in the banking sector. The methodology used is normative, analyzing regulations related to the application and disclosure of mediation models in the banking sector. Data collection was obtained from primary legal materials in the form of legislation, secondary legal materials such as professional codes of ethics, books, articles, and scientific journals, and tertiary …

Ratio Legis Penambahan Modal Negara Kepada Lembaga Pembiayaan Ekspor Indonesia, Syarif Hidayat

Jurnal Hukum & Pembangunan

Since its establishment under Law Number 2 of 2009 concerning The Indonesian Export Financing Institution (LPEI), the Indonesian Export Financing Institution has gained additional capital participation nine times between 2010 and 2021 by the passage of government regulations. The rules for extra capital in the legislation on its establishment only take the form of regulations in the event that the capital of the Indonesian Export Financing Institution is decreased by a particular amount, but the additional capital that has been carried out thus far is not meant to replace the capital deficiency. As a result, this research was undertaken to …

Tanggung Jawab Negara Terhadap Eksistensi Masyarakat Pemukim Di Atas Air (Studi Kasus: Suku Bajo Desa Samabahari, Kabupaten Wakatobi), Aditya Nurahmani An

Jurnal Hukum & Pembangunan

The settler communities on the water are like the Bajo tribe, they have had a tradition of living on the water and in coastal areas for generations even before Indonesia became independent. The settler communities on the water have faced various problems such as legal certainty for settlements, threats of eviction, difficulty in accessing clean water and acts of discrimination. In this research, there are 2 (two) things to be studied, firstly what is the position of the settler community on the water in terms of the principle of common property resources in marine management and secondly what is …

In Loco Reipublicae And The Parental Duty To Expose Children To Ideas Outside The Home, Catherine Smith

Scholarly Articles

In Loco Reipublicaie boldly centers children’s rights and adeptly fills an existing jurisprudential gap by infusing parental rights with important duties to respect and facilitate children’s exercise of their own citizenship rights. It is a children’s-rights-forward shot across a heavily prioritized parents’ rights bow. It’s about time.

Brief Of Criminal Law Scholars As Amici Curiae In Support Of Petitioner, Ira P. Robbins

Amicus Briefs & Court Filings

Amici are law professors who teach and research criminal law and procedure. They have no personal interests in this case. Their sole interest is in the protection and preservation of the constitutional rights of criminal defendants.