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UC Law Constitutional Quarterly

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Racial Equality, Religious Liberty, And The Complications Of Pluralism, Rachel F. Moran

UC Law Constitutional Quarterly

No abstract provided.

Policing Pregnancy "Crimes", Valena Beety, Jennifer Oliva

Articles by Maurer Faculty

The Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization held that there is no right to abortion healthcare under the United States Constitution. This Essay details how states prosecuted pregnant people for pregnancy behaviors and speculative fetal harms prior to the Dobbs decision. In this connection, it also identifies two, related post-Dobbs concerns: (1) that states will ramp up their policing of pregnancy behaviors and (2) that prosecutors will attempt to substantiate these charges by relying on invalid scientific evidence. This Essay examines the faulty forensic science that states have used to support fetal harm allegations and reminds …

Individual Home-Work Assignments For State Taxes, Hayes R. Holderness

Washington Law Review

The surge in work-from-home arrangements brought on by the COVID-19 pandemic threatens serious disruptions to state tax systems. Billions of dollars are at stake at this pivotal moment as states grapple with where to assign income earned through these remote work arrangements for tax purposes: the worker’s home or the employer’s location? Some states—intent on modernizing their income tax laws—have assigned such income to the employer’s location, but have faced persistent challenges on both constitutional and policy grounds in response.

This Article provides a vigorous defense against such challenges. The Supreme Court has long interpreted the Constitution to be deferential …

Evaluating Congress's Constitutional Basis To Abolish Felony Disenfranchisement, James E. Lauerman

Washington Law Review

In the past three years, members of Congress unsuccessfully introduced a series of federal voting rights legislation, most recently the Freedom to Vote Act. One goal of the legislation is to abolish felony disenfranchisement. Felony disenfranchisement is the practice of revoking a citizen’s right to vote due to a prior felony conviction. The Freedom to Vote Act aims to restore voting rights for every citizen who has completed their prison sentence. A ban on felony disenfranchisement would be historic, as the practice stretches back to ancient Greece and Rome. Moreover, the United States Supreme Court consistently upholds the practice by …

Solving Slapp Slop, Nicole J. Ligon

University of Richmond Law Review

In a substantial minority of states, wealthy and powerful individuals can, without much consequence, bring defamation lawsuits against the press and concerned citizens to silence and intimidate them. These lawsuits, known as “strategic lawsuits against public participation” (“SLAPP”s), are brought not to compensate a wrongfully injured person, but rather to discourage the defendants from exercising their First Amendment rights. In other words, when well resourced individuals feel disrespected by public criticism, they sometimes sue the media or concerned citizens, forcing these speakers to defend themselves in exorbitantly expensive defamation actions. In states without anti-SLAPP statutes—statutes aimed at protecting speakers from …

Carceral Socialization As Voter Suppression, Danieli Evans

Articles

In an era of mass incarceration, many people are socialized through interactions with the carceral state. These interactions are poweful learning experiences, and by design, they are contrary to democratic citizenship. Citizenship is about belonging to a community of equals, being entitled to mutual respect and concern. Criminal punishment deliberately harms, subordinates, and stigmatizes. Encounters with the carceral system are powerful experiences of anti-democratic socialization, and they impact peoples' sense of citizenship and trust in government. Accordingly, a large body of social science research shows that eligible voters who have carceral contact are significantly less likely to vote or to …

Strengthening The Institution Of Marriage As The Union Of One Man And One Woman, Seow Hon Tan

Research Collection Yong Pung How School Of Law

This article examines the recent repeal of section 377A of the Penal Code and the concurrent constitutional amendment to strengthen the institution of marriage as the union of one man and one woman. Specifically, it explains the jurisprudential significance of the new constitutional provision, Article 156, which has a bearing on our understanding of the laws and policies to be enacted and implemented in future.

Racial Equality, Religious Liberty, And The Complications Of Pluralism, Rachel F. Moran

Faculty Scholarship

Constitutional law scholar Laurence Tribe once described due process and equal protection as “a legal double helix.” By this, he meant that protections for substantive liberties coupled with principles of equal treatment created “a single, unfolding tale of equal liberty and increasingly universal dignity.” In his view, equality and liberty were mutually constitutive and “center[ed] on a quest for genuine self-government of groups small and large.” Although this optimistic account of the nation’s constitutional DNA is reassuring, Professor Sahar Aziz’s new book on “The Racial Muslim: When Racism Quashes Religious Freedom” reminds us that the double helix can unravel, so …

A Prophylactic Approach To Compact Constitutionality, Katherine Mims Crocker

Faculty Scholarship

From COVID-19 to climate change, immigration to health insurance, firearms control to electoral reform: state politicians have sought to address all these hot-button issues by joining forces with other states. The U.S. Constitution, however, forbids states to “enter into any Agreement or Compact” with each other “without the Consent of Congress,” a requirement that proponents of much interstate action, especially around controversial topics, would hope to circumvent.

The Supreme Court lets them do just that. By interpreting “any Agreement or Compact” so narrowly that it is difficult to see what besides otherwise unlawful coordination qualifies, the Court has essentially read …

The Indecisions Of 1789: Inconstant Originalism And Strategic Ambiguity, Jed Handelsman Shugerman

Faculty Scholarship

The unitary executive theory relies on the First Congress and an ostensible "Decision of 1789" as an originalist basis for unconditional presidential removal power. In light of new evidence, the First Congress was undecided on any constitutional theory and retreated to ambiguity in order to compromise and move on to other urgent business.

Seila Law's strict separation-of-powers argument depends on indefeasibility (i.e., Congress may not set limits or conditions on the president's power of civil removal). In fact, few members of the First Congress defended or even discussed indefeasibility. Only nine of fifty-four participating representatives explicitly endorsed the presidentialist …

Symposium: The Future Of Reproductive Rights: An Embryo Is Not A Person: Rejecting Prenatal Personhood For A More Complex View Of Prenatal Life, Cynthia Soohoo

ConLawNOW

This essay considers current claims for prenatal personhood after the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. It first explains how the Dobbs decision unnecessarily adopts a binary view of prenatal life, suggesting that the only option for courts and legislatures is to recognize prenatal personhood or deny protection for prenatal life. This ignores popular understandings that certain laws can and should protect prenatal life, especially where criminal or tortious actions are concerned, but not grant full legal personhood. The Dobbs decision also refused to draw meaningful lines about the value of prenatal life in …

Lies,Damn Lies, And Kamikaze Lies: Protecting Falsehoods In The Name Of Truth, Doris Deltosto Brogan

Faculty Publications

Despite calls to reverse New York Times v. Sullivan and abandon the reckless disregard standard for public figure defamation cases--calls offered by two Supreme Court Justices, a number of legal scholars and some members of the popular press-- this article demonstrates that Sullivan’s protections have never been more relevant or more necessary, particularly in light of an epidemic of malicious, often strategic falsity, as well as overt assaults on the institutional press by powerful actors. We need Sullivan now more than ever. Further, for Sullivan to do its work effectively, it must be reinforced by two other legal protections: robust …

What Both Sides Of The Abortion Fight Can Learn From Antonin Scalia, Bruce Ledewitz

Newspaper Columns

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

Symposium: The Future Of Reproductive Rights: Big, Bad Roe, B. Jessie Hill

ConLawNOW

After the Supreme Court’s reversal of Roe v. Wade, the question of a constitutional right to abortion goes to state courts where there is a potential for resurgence of a Roe-like standard. This Essay thus evaluates whether Roe’s doctrinal framework is worth resurrecting, and concludes that it is good law to retain. It criticizes the work of liberal legal scholar John Hart Ely, who famously attacked Roe’s reasoning in a much-cited essay entitled The Wages of Crying Wolf: A Comment on Roe v. Wade. Justice Alito’s majority opinion in Dobbs v. Jackson Women’s Health Organization cited …

Why I Am No Longer A Jew, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Surveillance, State Secrets, And The Future Of Constitutional Rights, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The Supreme Court’s 2022 decision in Federal Bureau of Investigation v. Fazaga heralds a worrying trend. Over the past 15 years, as more information about how the government wields its foreign intelligence collection authorities on U.S. soil has become available, it has become clear that the government has repeatedly acted outside its constitutional and statutory limits, and at times, in flagrant disregard for judicial orders. As a result, dozens of cases challenging surveillance have been making their way through the courts. Unlike in prior eras, in certain cases it has become easier for litigants to establish an injury-in-fact in light …

Rounding Up The Three-Fifths Clause: Eradicating Prison Gerrymandering In The South, Abigail N. Falk

Pepperdine Law Review

This Comment examines the phenomenon of prison gerrymandering, a practice that involves counting prisoners as residents of the counties where their state correctional facilities are located—rather than in their home communities—for redistricting and representational purposes. This practice of counting inflates the voting power of rural, white districts with large prison complexes and diminishes the voting power of minority communities. Prison gerrymandering has become especially pervasive across southern states while many of the South’s northern counterparts have eradicated this practice through legislative reform. This Comment proposes a solution to stop prison gerrymandering in the South, arguing a strategy to produce a …

Freedom Of Expression And The Charter: 1982-2022, Jamie Cameron

Commissioned Reports, Studies and Public Policy Documents

In 2022, on the 40^th anniversary of the Canadian Charter of Rights and Freedoms, I wrote a 5-part blog series that reviewed the Supreme Court of Canada’s s.2(b) jurisprudence. These blogs were published by the Centre for Free Expression (CFE) at Toronto Metropolitan University (TMU), and can be found on the CFE website (See author page: https://cfe.torontomu.ca/blog?issues=All&authors=117). The five blogs, which are consolidated here, begin with a comment on the Court’s 2021 landmark decisions in City of Toronto v. Ontario and Ward v. Quebec. The second blog shifts, providing a quantitative and qualitative survey of the …

A Conversation With Indian Supreme Court Justice S. Ravinda Bhat, Cardozo Intellectual Property And Information Law Program, Floersheimer Center For Constitutional Democracy

2023 Event Invitations

Join us for a conversation with Indian Supreme Court Justice Shripathi Ravindra Bhat and Professor Saurabh Vishnubhakat, Director of Cardozo’s Intellectual Property & Information Law Program. Hear about Justice Bhat's experience at the highest levels of judicial service and his insight into the law’s perennial capacity for social impact.

Click here to view the flyer.