Constitutional Law Commons^™

Abort The Court? How Abortion Jurisprudence Has Highlighted Questions Surrounding The Legitimacy Of The Supreme Court, Junia E. Paulus

Honors Projects

The Supreme Court is often viewed with awe and the justices treated with reverence. It is the highest court in the United States, tasked with interpreting the law. But is the Supreme Court the neutral arbiter of justice it purports to be? Most recently, the 2022 ruling on Dobbs v. Jackson Women’s Health Organization overturned the fifty-year precedent of Roe v. Wade, causing the Court to face increasing scrutiny and questions of its legitimacy. I conduct a philosophical analysis of the arguments made by the justices in the opinions on Roe v. Wade, Planned Parenthood v. Casey, and …

More Than Lip Service Is Required: Excessive Fines Clause Limitations Upon Fining The Homeless, Tim Donaldson

St. Mary's Law Journal

No abstract provided.

Public Accommodations Originalism’S Inability To Solve The Problems Of Online Content Moderation, Vincent A. Marrazzo

St. Mary's Law Journal

In response to online platforms’ increasing ability to moderate content in what often seems to be an arbitrary way, Justice Clarence Thomas recently suggested that platforms should be regulated as public accommodations such that the government could prevent platforms from banning users or removing posts from their sites. Shortly thereafter, Florida passed the Transparency in Technology Act, which purported to regulate online platforms as public accommodations and restricted their ability to ban users, tailor content through algorithmic decision-making, and engage in their own speech. Texas followed suit by passing a similar law, and Arizona debated a bill purporting to regulate …

John Roberts And Owen Roberts: Echoes Of The Switch In Time In The Chief Justice’S Jurisprudence, Luke G. Cleland

St. Mary's Law Journal

No abstract provided.

A House Built On Sand: The Qualified Immunity Case For Keeping The Smith Doctrine, Joshua L. Johnston

St. Mary's Law Journal

No abstract provided.

On The Fence About Immigration And Overpopulation: "Environmentalists" Challenge Dhs Policies On Nepa Basis In Whitewater Draw Natural Resource Conservation District V. Mayorkas, Maya J. Williams

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Dobbs: A Powerful Opinion With Discrete Weaknesses, Gader Wren

Idaho Law Review

No abstract provided.

The Durham Report Shows Why We Don’T Want The Fbi Involved In Politics, Bruce Ledewitz

Newspaper Columns

Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.

Jane Crow Constitutionalism, Evan D. Bernick

College of Law Faculty Publications

On June 24, 2022 The United States Supreme Court issued its decision on Dobbs v. Jackson Women’s Health Organization; overturning Roe v. Wade, and destroying fifty years of precedent to protect the constitutional right to abortion in the United States. This overturning sets a dangerous, new precedent that reinforces the State’s control of reproduction, and criminalizes a woman’s right to choose, with very few exceptions. In states like Mississippi, Black women are already experiencing the highest rates of maternal mortality, incarceration, and poverty.

This article posits that Dobbs operates to maintain a racialized and gendered underclass, and names this phenomenon …

Per Curiam Signals In The Supreme Court's Shadow Docket, Zina Makar

Washington Law Review

Lower courts and litigants depend a great deal on the Supreme Court to articulate and communicate signals regarding how to interpret existing doctrine. Signals are at their strongest and most reliable when they originate from the Court’s merits docket. More recently, the Court has been increasingly relying on its orders docket—colloquially referred to as its “shadow docket”—to communicate with lower courts by summarily reversing and correcting errors in interpretation without briefing or oral argument.

Over the past decade the Roberts Court has granted certiorari to summarily reverse a growing number of qualified immunity cases, issuing over a dozen unsigned per …

The Advisory Jurisdiction Of The Constitutional Tribunal Under Article 100 Of The Constitution, Don Jia Hao Ho

Singapore Law Journal (Lexicon)

Singapore has a Constitutional Tribunal as provided for under Article 100 of the Constitution. The Tribunal is vested with advisory jurisdiction which ordinary courts do not have. This article explores the constitutional basis for the Tribunal’s existence, jurisdictional issues surrounding the Tribunal, as well as the legal effect of the Tribunal’s opinion. Moreover, this article evaluates the continued relevance of the Tribunal. In doing so, a comparative approach is adopted where appropriate.

The Five Internet Rights, Nicholas J. Nugent

Washington Law Review

Since the dawn of the commercial internet, content moderation has operated under an implicit social contract that website operators could accept or reject users and content as they saw fit, but users in turn could self-publish their views on their own websites if no one else would have them. However, as online service providers and activists have become ever more innovative and aggressive in their efforts to deplatform controversial speakers, content moderation has progressively moved down into the core infrastructure of the internet, targeting critical resources, such as networks, domain names, and IP addresses, on which all websites depend. These …

Interposition: A State-Based Constitutional Tool That Might Help Preserve American Democracy, Christian G. Fritz

Faculty Scholarship

Interposition was not a claim that state sovereignty could or should displace national authority, but a claim that American federalism needed to preserve some balance between state and national authority.

http://commonplace.online/article/interposition/

Transforming Natural Religion: An Essay On Religious Liberty And The Constitution, Steven J. Heyman

BYU Law Review

Recent Supreme Court decisions such as Burwell v. Hobby Lobby, Masterpiece Cakeshop v. Colorado Civil Rights Commission, and Fulton v. City of Philadelphia raise the fundamental question of what place religion and religious liberty should hold within a liberal constitutional order that is based on a commitment to the freedom, equality, and well-being of all persons. To explore this question, it is natural to begin with an inquiry into what founding–era Americans thought when they incorporated the First Amendment’s Free Exercise Clause into the constitutional order that they were creating. Contrary to the views taken by many judges and scholars, …

The Forgotten Jurisprudence Of Parole And State Constitutional Doctrines Of Vagueness, Kristen Bell

Cardozo Law Review

The majority of carceral sentences in the United States include the possibility of discretionary release on parole. Most such sentences, however, are unconstitutionally vague. Their unconstitutionality has gone unnoticed because contemporary scholarship and litigation about vague laws have focused on the U.S. Constitution in lieu of state constitutions. This Article unearths historic state court decisions holding that sentences that end through the discretionary judgment of a parole board are “void for uncertainty.” Although state void for uncertainty doctrines share some similarity with the federal vagueness doctrine, they are far more demanding as applied to criminal punishment. By urging revival of …

After Mccleskey, Robert L. Tsai

Faculty Scholarship

In the 1987 decision, McCleskey v. Kemp, the Supreme Court rejected a black death row inmate's argument that significant racial disparities in the administration of Georgia's capital punishment laws violated the Fourteenth Amendment's Equal Protection Clause. In brushing aside the most sophisticated empirical study of a state 's capital practices to date, that ruling seemingly slammed the door on structural inequality claims against the criminal justice system. Most accounts of the case end after noting the ruling's incompatibility with more robust theories of equality and meditating on the deep sense of demoralization felt by social justice advocates. One might …

Proportionality V. Categorization: The Issue Of Judicial Balancing Of Rights, Akram Mohamed

Theses and Dissertations

The fact that there is a constant conflict between individual rights and state or social interests has historically provoked the question of how to balance or harmonize such conflicting interests? On what basis shall the legislator or the judge decide in favor of this or that right in his legislation or judgement? Where shall we, for example, draw the line between the right to freedom of expression and the right to protect one’s honor and reputation? How could the legislator find the compromise between the state duty to protect fetus life and its obligation not to interfere with woman’s right …

Personhood, Property, And Public Education: The Case Of Plyler V. Doe, Rachel F. Moran

Faculty Scholarship

Property law is having a moment, one that is getting education scholars’ attention. Progressive scholars are retooling the concepts of ownership and entitlement to incorporate norms of equality and inclusion. Some argue that property law can even secure access to public education despite the U.S. Supreme Court’s longstanding refusal to recog- nize a right to basic schooling. Others worry that property doctrine is inherently exclusionary. In their view, property-based concepts like resi- dency have produced opportunity hoarding in schools that serve affluent, predominantly white neighborhoods. Many advocates therefore believe that equity will be achieved only by moving beyond property-based claims, …

Democratizing Tthe Eighth Amendment, Erin E. Braatz

Villanova Law Review (1956 - )

No abstract provided.

Stacking The Deck: How The Eighth Circuit's Decision In United States V. Crandall Threatens The First Step Act's Bipartisan Criminal Justice Reforms, Anthony Passela

Villanova Law Review (1956 - )

No abstract provided.