Reclaiming Personal Privacy Rights Through The Freedom Of Intimate Association,
2024
California Western School of Law
Reclaiming Personal Privacy Rights Through The Freedom Of Intimate Association, Nancy C. Marcus
Faculty Scholarship
The United States has entered a new constitutional era where substantive due process, under attack by the Supreme Court itself, can no longer be viewed as a solid foundation for the securing of personal privacy rights. In a post-Dobbs v. Jackson Women’s Health Organization world, the right to personal privacy, long understood to be protected under the Fifth and Fourteenth Amendments’ Due Process Clauses, is in need of a new doctrinal home. The evisceration of modern substantive due process in the context of abortion rights implicates and endangers LGBTQ+ rights and other personal privacy rights as well. As such, …
Why Is There No Social Citizenship In Puerto Rico? The Demise Of Section 20,
2024
Indiana University Maurer School of Law
Why Is There No Social Citizenship In Puerto Rico? The Demise Of Section 20, Haley Powell
Indiana Journal of Law and Social Equality
Part I will define T.H. Marshall’s theory of citizenship rights and explain how that framework pertains to the denial of social welfare rights in Puerto Rico’s constitution. It will also delineate the larger context of social welfare in the United States using the contract versus charity paradigm posited by two historians, New School Professor Nancy Fraser and New York University Professor Linda Gordon. Part II will explore the legislative history of the Puerto Rican Constitution at the Puerto Rican Constitutional Convention and the U.S. Congress debates following the convention. Part III will examine the ramifications of the removal of Section …
Pandemics Of Limitation Of Rights,
2024
Touro University Jacob D. Fuchsberg Law Center
Pandemics Of Limitation Of Rights, Rinat Kitai-Sangero
Touro Law Review
This Article discusses the limitation of rights due to pandemics. It analyzes from a constitutional standpoint the holding of the German Federal Constitutional Court (Das BUNDESVERFASSUNGSGERICHT) from April 2022 as a symptom of moral panic disguised through an analytical process. Though it focuses on this case, it sheds light on the moral panic that characterized many countries’ approaches during the COVID-19 pandemic. On April 27, 2022, the German Federal Constitutional Court held that a provision to provide proof of vaccination against COVID-19, recovery from COVID-19, or a medical exemption to COVID-19 vaccination as a condition of employment in the health …
The Mad Hatter’S Quip: Looking For Logic In The Independent State Legislature Theory,
2024
Touro University Jacob D. Fuchsberg Law Center
The Mad Hatter’S Quip: Looking For Logic In The Independent State Legislature Theory, Nicholas Maggio, Foreword By Brendan Buschi
Touro Law Review
The Supreme Court is set to hear a case that threatens the bedrock of America’s democracy, and it is not clear how it will shake out. The cumbersomely named “Independent State Legislature Theory” is at the heart of the case Moore v. Harper, which is before the Supreme Court this term. The theory holds that state legislatures should be free from the ordinary bounds of state judicial review when engaged in matters that concern federal elections. Despite being defeated a myriad of times at the Supreme Court, the latest challenge stems from a legal battle over North Carolina’s redistricting maps. …
Mental Health In Prison: The Unintended But Catastrophic Effects Of Deinstitutionalization,
2024
Touro Law Center
Mental Health In Prison: The Unintended But Catastrophic Effects Of Deinstitutionalization, Felicia Mulholland
Touro Law Review
Prisons and jails are not adequately equipped to manage the ever-growing population of mentally ill inmates. Despite deinstitutionalization efforts, prisons have steadily become the new psychiatric hospitals and unfortunately, because of the lack of treatment and the ability to properly supervise this population of inmates, these individuals are dying by their own hands at an alarming rate. This Note argues that the lack of proper care for mentally ill inmates is a violation of their constitutional right, despite their incarcerated status. The Department of Corrections and Community Supervision (DOCCS) should incorporate more concrete and universal rules and regulations for the …
Lost In The Thicket,
2024
Touro University Jacob D. Fuchsberg Law Center
Lost In The Thicket, Brad Snyder
Touro Law Review
As part of a symposium on his biography of Felix Frankfurter, Democratic Justice, Brad Snyder revisits Baker v. Carr and explores the contrasts between Justice William Brennan’s judicially supremacist majority opinion and Frankfurter’s departmentalist dissent and unheeded warnings about empowering the judiciary. As Frankfurter wrote in his Baker dissent, he placed more faith in the U.S. Congress, as opposed to the judiciary, to protect democracy.
Editor-In-Chief’S Forward,
2024
UC Law SF
Editor-In-Chief’S Forward, Zoë Grimaldi
UC Law Constitutional Quarterly
No abstract provided.
Politicians The Founders Warned You About,
2024
UC Law SF
Politicians The Founders Warned You About, Neil Fulton
UC Law Constitutional Quarterly
Many articles have explored the Founders’ intentions regarding the constitutional text. Much less attention has focused on the Founders’ ideas regarding the traits needed of the leaders in a constitutional republic. The Constitution focuses on governing structures, many of which relate to the electoral process. The Constitution does not spell out the ideal traits of the leaders elected pursuant to those processes. Nonetheless, the Founders possessed clear views about the virtues and qualifications that ideal political leaders required. Indeed, the Founders issued warnings about certain archetypal political figures who, because of their flagrant disregard of the ideal virtues and qualifications, …
The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain,
2024
Indiana University Maurer School of Law
The Living Constitution: Why The Supreme Court Must Part Ways With Exclusionary Eminent Domain, Aaron Mackay
Indiana Law Journal
The Fifth Amendment’s “public use” requirement for takings is no longer a requirement at all. Instead, the meaning of “public use” has been expanded far beyond its original intent and public understanding. The broadening of the “public use” requirement reached its breaking point in Kelo. Since Kelo, state legislatures have responded by restricting eminent domain use to remove “blighted” areas. In effect, contemporary eminent domain reduces the availability of affordable housing, which has exacerbated the affordable housing crisis. This Note explores a constitutionally permissible re-working of the eminent domain doctrine to encourage the provision of affordable housing. Interpreting the “public …
Constraining Constitution-Making,
2024
University of Chicago
Constraining Constitution-Making, Adam Chilton, Cristián Eyzaguirre, David Landau, Mila Versteeg
Scholarly Publications
Whether constitution-making should be constrained has long been debated, but little is known about whether it is possible. We make several contributions to this question. We start by providing a typology of three types of constraints on constitution-making: Substantive, Procedural, and Institutional. We next develop a positive theory of when these constraints are likely to influence drafters' behavior. We then use a mixed-methods approach to explore these ideas in the context of Chile's constitutional reform process. In a survey experiment conducted in Chile before citizens voted on the draft constitution, we find that most respondents supported constraints in the abstract, …
The Unconstitutional Conditions Vacuum In Criminal Procedure,
2024
Emory University School of Law
The Unconstitutional Conditions Vacuum In Criminal Procedure, Kay L. Levine, Jonathan R. Nash, Robert A. Schapiro
Faculty Articles
For more than a century, the Supreme Court has applied the unconstitutional conditions doctrine in many contexts, scrutinizing government efforts to condition the tradeoff of rights for benefits with regard to speech, funding, and takings, among others. The Court has declined, however, to invoke the doctrine in the area of criminal procedure, where people accused of crime are often asked to—and often do—surrender their constitutional rights under the Fourth, Fifth, and Sixth Amendments in return for some benefit. Despite its insistence that the unconstitutional conditions doctrine applies broadly across the Bill of Rights, the Court’s jurisprudence demonstrates that the doctrine …
Rethinking Eisner V. Macomber, And The Future Of Structural Tax Reform,
2024
Emory University School of Law
Rethinking Eisner V. Macomber, And The Future Of Structural Tax Reform, Alex Zhang
Faculty Articles
In June 2023, the Supreme Court granted the petition for a writ of certiorari in Moore v. United States, ostensibly a challenge to an obscure provision of the 2017 tax legislation. Moore’s real target is the constitutionality of federal wealth and accrual taxation, which policymakers have proposed to combat record inequality and raise revenue for social-welfare reform. At the center of the doctrinal dispute in Moore is a century-old case, Eisner v. Macomber, on which the Moore petitioners and other commentators have relied to argue that Congress has no power to tax wealth or unrealized gains—e.g., appreciation …
Channeling A Federal Commitment To Education Through State Constitutions And Courts,
2024
Touro University Jacob D. Fuchsberg Law Center
Channeling A Federal Commitment To Education Through State Constitutions And Courts, Nicole Sunderlin, Evan Caminker
Journal of Race, Gender, and Ethnicity
This article examines the evolution of efforts to secure a federal right to education, highlighting the unsuccessful attempts at the federal level and the shift to state constitutional litigation, which has yielded mixed and limited outcomes. Part I outlines these failed efforts and their consequences. Part II introduces Professor Black’s proposal for a federal right to education, anchored in the State Citizenship Clause. Part III presents a new federalism model that suggests federal constitutional commitments should guide the interpretation of state constitutional provisions, particularly regarding education. The article concludes by advocating for state courts to adopt a more robust interpretation …
Leandro V. State: The Challenges Of Litigating School Funding Equity In Hyper-Partisan Times,
2024
Touro University Jacob D. Fuchsberg Law Center
Leandro V. State: The Challenges Of Litigating School Funding Equity In Hyper-Partisan Times, Mark Dorosin
Journal of Race, Gender, and Ethnicity
The Leandro case serves as a critical case study highlighting the limitations of litigation in addressing educational inequities, particularly in states committed to undermining public education. Despite the judiciary's constitutional role as an independent check on legislative actions, the politicization of state supreme courts has transformed them into partisan entities. This shift erodes public trust in the legal process and disproportionately harms marginalized groups, many of whom have historically relied on the courts to safeguard their constitutional rights, including equitable access to public education. The Leandro case underscores the challenges of achieving meaningful educational reform through litigation in a highly …
Protecting Students’ Right To Listen By Statute,
2024
Touro University Jacob D. Fuchsberg Law Center
Protecting Students’ Right To Listen By Statute, Noah C. Chauvin
Journal of Race, Gender, and Ethnicity
This article argues that First Amendment challenges to book bans in public school libraries, based on the right to receive information, are unlikely to succeed. Even if such bans clearly violate students' rights, constitutional litigation is slow and unpredictable, and courts may not consistently support these challenges. Therefore, instead of relying solely on litigation, opponents of book bans should pursue legislative change. The paper proposes a model statute that advocates and legislators can use to ban book bans. It also acknowledges the complexities of terminology and scope, defining "book bans" as decisions to restrict or remove materials from school libraries, …
Idea Manifestation Determination Review As Restorative Practice,
2024
Touro University Jacob D. Fuchsberg Law Center
Idea Manifestation Determination Review As Restorative Practice, Matt Saleh, Barbara J. Hickman, Angela M. T. Prince, Lawanda H. Cook, Jackie Bickford, Kristie Chu, Erika Kitsantas
Journal of Race, Gender, and Ethnicity
This article examines the Individuals with Disabilities Education Act (IDEA), which guarantees students with disabilities access to a Free Appropriate Public Education (FAPE) in the Least Restrictive Environment (LRE). The IDEA aims to provide equal educational opportunities for students with disabilities, addressing inequitable exclusions from public schools. Despite its protections, including procedural safeguards like the Manifestation Determination Review (MDR), which prevents unjust removal due to disciplinary actions, students with disabilities remain disproportionately affected by suspensions, expulsions, and arrests, with these disparities exacerbated by race, poverty, and other intersectional factors. The essay highlights compliance concerns with the MDR, particularly its inconsistent …
Urban Commons In Italy,
2024
University of Torino
Urban Commons In Italy, Michele Graziadei
FIU Law Review
The Italian experience with urban commons has been very rich indeed. In the last ten years or so the number of social and legal initiatives relating to urban commons in Italy has exploded. The present Italian situation shows that urban commons are here to stay. By now, they are part of the collective imagination, of political and socio-economic transformative projects, of administrative practices, and of the law. The demand for the commons in the city originates from the social movements that intend to resist the penetration of the market and of private property in every ambit of life but is …
Defining The Relationship Between Municipal Bankruptcy And Modern Federalism Jurisprudence,
2024
Florida International University College of Law
Defining The Relationship Between Municipal Bankruptcy And Modern Federalism Jurisprudence, John Allen Livingston
FIU Law Review
This article delves into the relationship between municipal bankruptcy law and modern federalism jurisprudence, particularly focusing on Chapter 9 reform proposals and its constitutional implications. Against the backdrop of the COVID-19 pandemic's economic challenges, the article explores the historical context of municipal bankruptcy, critiques of Chapter 9's limitations, and proposals for empowering bankruptcy courts. It analyzes key doctrines of federalism such as the Anti-Commandeering and Anti-Coercion Doctrines, as well as the Clear Statement Rule, to evaluate the constitutionality of expanding bankruptcy courts' powers. The article navigates through scholarly debates, proposing a nuanced perspective on the role of federalism, state sovereignty, …
Domestic Supply (A Feminist Proposal),
2024
UC Law SF
Domestic Supply (A Feminist Proposal), Jennifer Hendricks
UC Law Constitutional Quarterly
No abstract provided.
Unprecedented: Asian Americans, Harvard, The University Of North Carolina, And The Supreme Court’S Striking Down Of Affirmative Action,
2024
UC Law SF
Unprecedented: Asian Americans, Harvard, The University Of North Carolina, And The Supreme Court’S Striking Down Of Affirmative Action, Harvey Gee
UC Law Constitutional Quarterly
In response to the Supreme Court’s decision in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College Students for Fair Admissions, Inc., Petitioner v. University of North Carolina, et al. (“SFFA v. Harvard”),1 author Harvey Gee urges his fellow Asian Americans––the star plaintiffs in the case and depicted as the main beneficiaries of its holdings–– to fight back to preserve affirmative action. Part I explores how the Court’s approach to affirmative action changed from the emergence of the Civil Rights Movement through many of the pivotal affirmative action cases prior to the 2010s. Part II then seeks …
