Constitutional Law Commons^™

Moore V. United States: The Constitutionality Of The Taxation Of Unrealized Gains, Loren Naldoza

Lewis & Clark Law Review

Rarely in modern tax jurisprudence does the common adage “nothing is certain except death and taxes” receive a challenge in the highest court in the land. This year, the Supreme Court is considering the most existential question concerning the federal income tax in over a century: what is “income”? The definition of “income” has gone through several developments and adjustments since the enactment of the Sixteenth Amendment. Two taxpayers have reached the Supreme Court to challenge one such aspect of the definition of “income”— whether realization is a constitutional requirement as required by the Sixteenth Amendment. When an accession to …

Punishment After The Punishment: How Deportation Of Juvenile Offenders Violates The Eighth Amendment And International Law, Elisabeth Sethi

Lewis & Clark Law Review

This Comment examines how the United States deviates from most of the Western world by allowing deportation of noncitizen juvenile offenders to be essentially mandatory for a wide number of crimes. Deportation is “mandatory” in the sense that it is often an automatic result with very few options for judges to consider relevant mitigating factors, such as how long the noncitizen has lived in the United States, ties to U.S. citizen family members, or behavior since committing the crime. Deportation of juvenile offenders is applied harshly to both authorized and unauthorized noncitizens, many of whom have lived in the United …

Satire And Actual Malice: Expanding The Reasonable Reader Analysis For The Modem Era, Cory Crystal

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Trademark Fair Use Is No Joke, Christine Haight Farley

Cardozo Arts & Entertainment Law Journal

The article critiques the Supreme Court's decision in Jack Daniel's Properties v. VIP Products, arguing that the Court missed an opportunity to clarify the relationship between trademark law and the First Amendment. While the Court acknowledged the importance of protecting parodies, it failed to develop a comprehensive framework for balancing trademark rights with free speech. Instead, it introduced a narrow rule that limits the application of the Rogers test, potentially undermining speech protections in trademark disputes. The article contends that the Court's reliance on the likelihood of confusion test is insufficient to address the broader First Amendment implications of …

Incentivizing Innovation In The Realm Of Social Goods: Patent Law's Unintended Inhibiting Effect On Environmental Technological Advancement, Ethan Graham

Cardozo Arts & Entertainment Law Journal

The note argues that while Direct Air Capture (DAC) technology holds significant potential to address climate change by removing carbon dioxide from the atmosphere, its development and deployment are hindered by the gatekeeping mechanism of patents. These patents, though intended to incentivize innovation, often stifle progress by restricting access to critical technologies. The analysis highlights the urgency of climate action, the limitations of current legal frameworks, and the need for policy reforms to accelerate DAC innovation and mitigate global warming.

Sieving Silence: The Communal Question And The Archive Of Indian Constitutional History, Kanika Gauba

National Law School Journal

This paper shows how the archive of Indian constitutional history limits access to constitutional disagreement. It attempts an alternative framing of the issue of political safeguards for religious minorities (‘the communal question’) as a triangle of disagreement among the Sikhs, the Anglo‑Indians, and Sardar Vallabhbhai Jhaverbhai Patel. However, the task is complicated by the silence in the official archives on all three actors. If, as critical historians argue, silence is the very condition of the archive and the writing of history, this paper argues that the historian must ‘sieve’ the inevitably silent archives of Indian constitutional history for perturbations, follow …

Gender In The Making Of The Constitution: Proposals For A Feminist Inquiry Into Indian Constitutional History, Achyut Chetan

National Law School Journal

A feminist inquiry into the framing of the Indian Constitution must retrieve and see the interventions of the women members of the Constituent Assembly for what they historically represent, namely, a feminist authorial voice that was developed over a period of time by the pre-Independence women’s movement in India. For a proper understanding of this voice, we must understand the gendered character of the Constituent Assembly, its architecture, its procedures, the dynamics of the gendered relations among its members, and above all, the performative aspects of the debates. This inquiry must also investigate the language employed by the members and …

Threading The Needle In Extreme Partisan Gerrymandering Cases, Michael Gentithes

Akron Law Faculty Publications

Recent Supreme Court jurisprudence paints a grim picture for future reform to address extreme partisan gerrymandering. The decisions in Rucho v. Common Cause and Moore v. Harper appear to foreclose progress at both the federal and state level. Reformers must neither create unmanageable legal standards for adjudication in federal litigation, nor ask state courts to transgress ordinary bounds of judicial review when interpreting state laws that might address gerrymandering. But there remains a path forward that focuses on clear and detailed state constitutional mandates to curb gerrymandering practices. Beneath their rhetoric, these decisions support clear legal rules over broader democratic …

Book Challenges Popping Up All Over: What Do School Principals Need To Know?, Samantha Laine Hull, Sue Kimmel

STEMPS Faculty Publications

This chapter provides practical advice and reasons for school leaders to support students' intellectual freedom through their support of school libraries and school librarians. The chapter begins with a short but critical literature review that includes case law on the topic of censorship in schools. The concerns of teachers and librarians from a recent study are summarized and help build the foundation for practical and ready to use advice for any school leaders to uphold the intellectual freedom of all students.

The Next Generation, Jeremiah Chin

Articles

What would the law look like if we let children remake it? Laws govern, classify, and circumscribe children who inherit the law and its consequences. Discourses of power invoke children as rhetorical strategies to gain political favor or obviate a position—yet children are uncritically excluded from participating in the systems that control them. Children are subjected to the laws and objects of legislation, but denied the rights, autonomy, or authority to participate in the making of law and policy. Even the conceptualization of the constitutional rights of children is treated as an assumption, ill-defined and under theorized by traditional legal …

Christian Domination, Ruth Colker

American University Law Review

It is hard to deny that the United States is a Christian nation despite the First Amendment’s promise that the legislature will not establish a religion. The United States is not a Christian nation merely because of the religious beliefs that many people privately hold. It is a Christian nation, in part, because the courts and legislatures have facilitated that development. Moreover, as this Article will argue, Christian favoritism within the political and legal system has developed in sharp contrast to the treatment of Black people, women, the LGBTQ+ community, and disabled people.

This Article explores the development of Christian …

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, …

Is Life Imprisonment Without Parole Still Degrading Treatment Under The Echr?, Aykhan Dadashov

Human Rights Brief

After the European Court of Human Rights (“ECtHR”) decided Hutchinson v. The United Kingdom in 2017, debates about ECtHR’s position on life sentences without the possibility of parole arose. Some scholars deem the decision a departure from the ECtHR’s principles in Vinter and Others v. The United Kingdom, which held that non-reducible life sentences are a violation of Article 3 of the European Convention on Human Rights. Although the ECtHR came to different conclusions in Hutchinson and Vinter, the ECtHR still considers life imprisonment without parole inhuman or degrading treatment or punishment. Irreducible life imprisonment is still incompatible …

Cruel And Unusual Punishment: A Human Rights-Based Argument For Extending The Eighth Amendment To Capital Punishment Methods, Brittany Walker

Human Rights Brief

Though Americans generally support capital punishment, there are many issues with how states currently choose to execute individuals, including concern that the different execution methods used by states to carry out capital punishment violates the Eighth Amendment of the U.S. Constitution, lack of regulation of states and lack of accountability. Further, certain execution methods may violate the International Covenant on Civil and Political Rights (ICCPR). This article suggests recommendations for state legislatures, the United States Congress, and the Supreme Court for ensuring the humane treatment of individuals during an execution.

The Constitutionality Of Barring Undocumented Immigrants From Second Amendment Protections, Abby Vorhees

American University Law Review

Under current federal law, undocumented immigrants remain unable to access one of the most fundamental rights contained within our Constitution: the Second Amendment right to keep and bear arms. Several undocumented immigrants have challenged the constitutionality of the federal prohibition (18 U.S.C. § 922(g)(5)(A)), resulting in a three-way circuit split on whether undocumented immigrants are protected by the Second Amendment. The Supreme Court, however, has remained silent on the issue, leaving undocumented immigrants unprotected.

The Supreme Court’s 2022 Second Amendment decision, N.Y. State Pistol & Rifle Ass’n v. Bruen, upended the traditional method of constitutional review, means-end scrutiny, in favor …

Searching For Truth That Speaks To Power: Free Speech And Equality On Campus, Stephen M. Feldman

American University Law Review

University campuses are being rent apart in disputes pitting free expression against equality [read: diversity, equity, and inclusion]. Yet scholarly discussions and university declarations widely agree: While universities should encourage an inclusive educational environment, free-speech principles prohibit universities from restricting or punishing hate speech, group libel, and other forms of offensive expression. This Article argues that this prioritizing of free speech over equality on campus is mistaken. Equality should often be favored over free expression in campus settings. Although Supreme Court precedents are ambiguous, one can reasonably argue that the doctrine allows universities to restrict and punish offensive expression, including …

Litigating Original Meaning From Heller To Rahimi: The Role Of Lawyering In The Confused Path Of Second Amendment Jurisprudence, Lawrence Rosenthal

American University Law Review

The Second Amendment is on a jurisprudential march. An individual right to “keep and bear arms” for purposes unrelated to militia or military service was not recognized until the Supreme Court’s 2008 decision, applying what it took to be the original meaning of the “right to keep and bear arms” found in the Second Amendment, in District of Columbia v. Heller. Subsequently, the Court, in New York State Rifle & Pistol Ass’n v. Bruen, invalidated a statute requiring a permit to carry concealable firearms on a showing of particularized need. Most recently, in United States v. Rahimi, …

The Downstream Consequences Of Transunion Llc V. Ramirez: Why 5 U.S.C. § 2954 Plaintiffs Have Article Iii Standing Consistent With Lower Courts’ Interpretation Of Transunion, Erin Mccoy

American University Law Review

The Supreme Court, in TransUnion LLC v. Ramirez, created additional standing hurdles by requiring plaintiffs to identify a common law historic-analogue when alleging a statutory harm. In doing so, the Court arguably limited informational standing—a unique Article III standing theory whereby plaintiffs may establish an injury for failure to receive information—because informational injuries did not exist at common law.

This Comment asks whether informational standing survives in a post-TransUnion universe, using 5 U.S.C. § 2954 and lower courts’ interpretation of TransUnion for guidance. The statute, § 2954, comes to light in a string of litigation involving the potential illegality …

Liberty On Hold: The Constitutional Test And Source For Overdetention Claims, Sarya Baladi

Fordham Law Review

The persistence of overdetention—meaning continued detention after officers knew or should have known that the arrested person was entitled to release—poses major concerns about both the fundamental right against arbitrary detention and other unenumerated constitutional rights. The U.S. Supreme Court’s 1979 decision in Baker v. McCollan established a vague constitutional protection against overdetention, but it left lower courts to answer many open questions about its parameters.

Although courts agree that the Constitution prohibits law enforcement from arbitrarily detaining indefinitely an arrested person who protests their legitimate release, the application of this protection has been inconsistent across federal courts of appeals. …

Turning A Blind Eye To “Prisoner-On-Prisoner” Brawls: Why Failure-To-Protect Claims Should Proceed Under Bivens, Sophia M. Brusco

Fordham Law Review

Correctional officers have an obligation, under the Eighth Amendment and 18 U.S.C. § 4042, to protect incarcerated persons from an attack at the hands of fellow incarcerated individuals. Despite this duty, when a federal officer fails to protect an incarcerated person from attack, the viability of the victim’s claim against the offending officer is uncertain. Even though the doctrine, created in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, allows courts to infer a cause of action for damages directly from the Constitution, the U.S. Supreme Court adopted a test in Ziglar v. Abbasi that has …