Constitutional Law Commons^™

Severability And Standing Puzzles In The Law Of Removal Power, Jack Ferguson

Notre Dame Law Review

One of the “oldest and most venerable debates in U.S. constitutional law” concerns the President’s ability to fire executive branch officers. That debate shows little sign of subsiding. In recent years, the Supreme Court has decided a number of removal power cases that reflect an increasingly formalist turn. These cases have endorsed a version of the unitary executive theory and blessed the President’s ability to remove nominally independent officials. When it comes to questions of severability and remedy, however, the formalist majorities have fractured. Collins v. Yellen, decided in 2021, provides the most illuminating example. Justices Thomas and Gorsuch concurred …

Death By Detox: Substance Withdrawal, A Possible Death Row For Individuals In Custody, Dorothea R. Carleton

Journal of Law and Health

Suffering through substance withdrawal is a major problem for the majority of individuals in custody, yet there are no guidelines or standards to ensure their safety. Instead, individuals in custody are having their Constitutional rights violated and many die at the hands of the justice system. When their families seek accountability for the lack of adequate care provided by correctional facilities and employees, families are faced with a lack of consistency from one circuit to the next for knowing as to the correct standard to have a successful claim. Strain v. Regalado was a chance for the Supreme Court to …

Batson V. Kentucky Guidelines And The Use Of Peremptory Challenges In Arkansas Courts: A Case Study, Abigail Lindsey

Political Science Undergraduate Honors Theses

The peremptory challenge is a method by which attorneys can strike a potential juror from the jury pool without a valid reason. With Batson v. Kentucky (1986), the Supreme Court ruled that peremptory challenges cannot be issued on the basis of race, however, there are many problems with the way this precedent has been followed in various states. The goal of this research is to analyze how Arkansas courts implement the Batson precedent. This research also studies whether the way in which Arkansas courts utilize the peremptory challenge creates ideologically imbalanced juries.

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Preserving Constitutional Integrity In The Age Of Cyberwarfare: A Paper Tiger, Or Death By A Thousand Cuts?, Darren Singh

UC Law Constitutional Quarterly

The Constitution is meant to serve as a necessary constraint on unilateral Executive military actions. Today, nation-states and non-state actors can launch devastating cyberattacks on the infrastructure, economy, military, and democratic systems of the United States. These attacks do not fall within the realm of “hostile actions” necessary to constitute war. Cyberattacks from adversaries are best deterred with offensive cyberattacks of our own. The President is the best actor to superintend and direct this active defense. Neither the Constitution nor the War Powers Resolution, however, offer a framework for how the United States may respond to these threats while also …

Superfluous Judicial Activism: The Takings Gloss, Michael Allan Wolf

UF Law Faculty Publications

In the summer of 2021, the Supreme Court released opinions in three Takings Clause cases. The Justices did not focus primarily on the dozen words that compose that Clause. Instead, the Court considered the expansive judicial gloss on those words, the extratextual aspects established by takings opinions over the last 100 years, since the “too far” test introduced by Justice Holmes in Pennsylvania Coal. The “Takings Gloss” is the product of holdings expanding the meaning and reach of the Takings Clause, a tangled web of opinions that have troubled lawyers, judges, and commentators for several decades. With the latest contributions, …

Promotion Of Citizenship Through Migration: Taking Into Cognizance The Peculiarities Of Migrant, Uche Nnawulezi, Hilary Nwaechefu

Indonesia Law Review

This study arose out of the growing interest in citizenship issues that have remained an intractable problem in the global migration community. The main objective this study is to examine the realities of global migration which has necessitated expansion on citizenship policies of admission, acquisition of rights, responsibilities, and interest of migrants or residents contained in statutory provisions or frameworks of migrant's country of residence. This is against the backdrop driven by the desire to create stability in the international migration system. It becomes imperative to examined the benefits and protections accorded to migrant in his place of residence which …

Christians And/As Liberals?, Steven D. Smith

Notre Dame Law Review

Christianity and liberalism were made to fit each other, like hand and glove. According to some interpretations, anyway. Liberal constitutionalism, with its commitments to freedom and equal human dignity, is the political system that reflects and embodies Christian commitments; and the constitutional legal order that accompanies liberalism, centrally including legally enforced rights of religious freedom, is the mode of government that best permits Christians to live in accordance with their faith in a fallen and deviant world. Thus, a couple of decades ago, Robert Kraynak reported that “[a]lmost all churches and theologians now believe that the form of government most …

Foreword: Fifty Years Later, An Editor Looks Back, Alan Charles Dell'ario

UC Law Constitutional Quarterly

No abstract provided.

The Imagination Unbound: On The New Anti-Rights Trajectory Of The U.S. Supreme Court, Joshua J. Schroeder

UC Law Constitutional Quarterly

In the summer of 2022, the U.S. Supreme Court overruled an individual right for the first time in Dobbs v. Jackson Women’s Health Org. The Dobbs Court also suggested that several rights-affirming decisions including Loving v. Virginia, Griswold v. Connecticut, and Obergefell v. Hodges should be systematically reviewed to similarly determine their lasting effect, if any. The idea that decades-old precedent should be systematically reviewed by the Court to decide whether it should be overruled under the new Janus v. AFSCME balancing test is uncharted territory.

Using an ad hoc balancing test to systematize the overruling of longstanding decisions is …

A Critical And Historical Analysis Of Ohio’S Post-Millennium Regression To Major-Party Monopoly, Mark R. Brown

UC Law Constitutional Quarterly

No abstract provided.

Misapplication Of Inverse Condemnation Liability: A Legal Analysis Of The Application Of Inverse Condemnation Liability On Electrical Utilities, Nadra Mamou

UC Law Constitutional Quarterly

No abstract provided.

The Constitutionality Of Brain Searches, Wayne Unger

UC Law Constitutional Quarterly

If technology could read your mind and capture your thoughts as storable and processable data, would that frighten you? Recent advancements in brain-computer interfaces will likely make mind-reading a reality, and if it does, it presents the last stand or final frontier in the battle for privacy protections. It is well established that an individual must be able to retreat into their home and be free from government intrusion. But if an individual cannot retreat into their own mind free from government intrusion, then true solitude will become extinct. In a future state where braincomputer interfaces can actively decode an …

Pro-Choice Plans, Brendan S. Maher

Faculty Scholarship

After Dobbs v. Jackson Women’s Health Organization, the United States Constitution may no longer protect abortion, but a surprising federal statute does. That statute is called the Employee Retirement Income Security Act of 1974 (“ERISA”), and it has long been one of the most powerful preemptive statutes in the entire United States Code. ERISA regulates “employee benefit plans,” which are the vehicle by which approximately 155 million people receive their health insurance. Plans are thus a major private payer for health benefits—and therefore abortions. While many post-Dobbs anti-abortion laws directly bar abortion by making either the receipt or provision of …

Progressive State Constitutionalism, Jorge M. Farinacci-Fernós

Buffalo Law Review

Unlike the U.S. Constitution, many state constitutions are truly modern documents that address important social, economic, and political issues from a progressive perspective. This is due to the combination of several key features, including: socially oriented historical circumstances; democratic creation processes; significant substantive content guided by ideas of social justice; and adequate judicial enforcement that takes into account these crucial normative elements. As a result, these progressive state constitutions can become powerful allies in the search for a transformative constitutionalism in the United States that facilitates the goals of social justice and collective prosperity.

The constitutional processes in California (1880), …

Contradiction Over The Application Of Corporate Liability In Corruption Court Decisions In Indonesia, Budi Suhariyanto, Cecep Mustafa

Indonesia Law Review

This paper presents and critically analyses the application of corporate criminal liability in the decisions of corruption crimes in Indonesia from 1999 to 2019. Of the seven corporate cases that have been prosecuted and convicted in this period. We identify 4 (four) corporate criminal liability models as follows. First, the corporation is accused, prosecuted, and convicted after the management has been convicted through a final and binding decision. Secondly, the corporation is excluded from the indictment but included in the sentencing. Third, the prosecution of corporate crimes negates the criminal liability of its management. Fourth, a portion of corporate criminal …

Examining The Principle Of Ignorantia Facti Excusat, Ignorantia Iuris Non Excusat In The Corruption Case Nizzadro Fabio, Simplexius Asa

Indonesia Law Review

This study was designed as a normative research based on documentary research while the data is analyzed based on the court decisions and is presented in a qualitative descriptive manner, aiming to find out the essential meaning of the teachings of ignorantia facti excusat, ignorantia iuris non excusat, and to knowing the implementation of the principles of ignorantia facti excusat, ignorantia iuris non excusat. This is in the regulations and judicial practice in Indonesia through the views of the judges in decision Number 20/Pid.Sus-TPK/2022/PN. Kpg. The study found three main conclusions, namely first, the principle of ignorantia facti …

Face Off: Overcoming The Fifth Amendment Conflict Between Cybersecurity And Self-Incrimination, Zachary E. Jacobson

Journal of Law and Health

The Founders included the privilege against self-incrimination in the Constitution to protect individual privacy and ensure a fair judicial process. Courts have failed U.S. citizens by neglecting to protect them from compelled unlocking of biometrically encrypted devices. This inaction has created a loophole that contradicts the framework of the privilege against self-incrimination. To correct this mistake courts should reconsider the trend they have set for the Constitution and the Fifth Amendment and consider adopting a forward-thinking cybersecurity lens to conclude that biometric authentication is testimonial. Courts should consider that biometric encryption is akin to a compelled password entry for the …

Public Service Loan Forgiveness? How Improvements To A Student Debt Cancellation Program Can Help To Deliver Gideon's Promise, Jane Fox, Winston Berkman-Breen

Journal of Law and Policy

Student debt is a generational crisis facing forty-five million Americans today. Among those with the highest rates of student loan debt are attorneys and among attorneys, those working in public interest have been hit particularly hard as they carry these same high debt rates yet earn low salaries. While student debt has run roughshod over Americans seeking higher education for almost forty years, another crisis has ravaged Americans who are swept up in the criminal legal system. Mass incarceration and mass policing have sent millions to prisons and jails and separated millions of parents and children through family courts. Often …

State Of Delay: Are Outdated Capital Post-Conviction Defense Tactics Undermining Effectiveness And The Attorney-Client Relationship?, Lyle C. May

Journal of Law and Policy

In 2018, death row prisoner Scott Allen was ordered to undergo a psychiatric evaluation to determine whether he was competent enough to fire his appointed attorneys. The competency hearing was not ordered by Scott’s counsel; rather, a superior court judge did so at the behest of an undisclosed third party. The problem was that Scott Allen had no history or symptoms of an intellectual disability or mental illness, nor was either a mitigatory claim in his appeal. The attorney-client conflict was triggered by Scott’s pro se effort to remove counsel after they ignored his lawful instructions to include potentially exculpatory …