Constitutional Law Commons^™

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 …

Era Project Faq On The Court Of Appeals Decision In Illinois V. Ferreiro, Center For Gender And Sexuality Law

Center for Gender & Sexuality Law

Illinois v. Ferriero is a lawsuit filed by the Attorneys General of the last three states that ratified the Equal Rights Amendment (ERA) — Nevada, Illinois, and Virginia — asking the court to require that the ERA be officially published by the U.S. Archivist as the 28th Amendment to the Constitution. On March 5, 2021, the District Court dismissed the lawsuit on standing grounds, meaning that the three states had not shown that they suffered a legally recognized injury. The court reasoned that the Archivist’s actions have no legal effect and, as such, the states were not harmed by the …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

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 …

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 …

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 …

Shielded Book Launch, Center For Rights And Justice, Benjamin N. Cardozo School Of Law

2023 Event Invitations

Professor Alexander Reinert, Director of the Center for Rights and Justice, will moderate a discussion on Shielded: How the Police Became Untouchable. He will be joined by the author, Joanna Schwartz, Professor of Law at the University of California, Los Angeles. Schwartz is one of the country's leading scholars on policing.

In Shielded, Schwartz explores how the legal system protects the police from being held accountable, with insightful analyses about subjects ranging from qualified immunity to no-knock warrants. By weaving true stories of people seeking restitution for violated rights, cutting across race, gender, criminal history, tax bracket, and …

First Amendment Speech Protections In A Post-Dobbs World: Providing Instruction On Instructional Speech, Samantha Mitchell

Fordham Law Review

In its June 2022 opinion, Dobbs v. Jackson Women’s Health Organization, the U.S. Supreme Court overruled Roe v. Wade and Planned Parenthood of Southeastern Pennsylvania v. Casey, thus revoking the constitutional right to abortion. As states continue to pass laws outlawing abortion to varying degrees, not only has Dobbs led to uncertainty for medical professionals and those who might want to seek an abortion, but it has also prompted questions for internet users across the world. May an organization or an individual post instructions on the internet regarding how to obtain an abortion if a resident of a …

No Sense Of Decency, Kathryn E. Miller

Articles

For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce, but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …

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.

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 …

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 …

Sola Scriptura: Slavery, Federalism And The Textual Power To Provide For The General Welfare, Calvin H. Johnson

William & Mary Bill of Rights Journal

This Article argues specifically that under the text of the Constitution, Congress has the general power to provide for the welfare through tax and any other necessary and appropriate means. Clause 1 of the description of powers of Congress in Article I, Section 8, gives Congress the power to tax and spend to provide for the common defense and general welfare. Common defense and domestic welfare are parallel in the text and equally plenary, subject only to restrictions protecting individual rights. The final clause of Section 8 then allows Congress to reach the goal of general welfare by any necessary …

On The Nexus Between The Strength Of The Separation Of Powers And The Power Of The Judiciary, Rivka Weill

William & Mary Bill of Rights Journal

This Article makes four novel arguments: (1) There is an inverse relationship between the strength of a separation of powers structure and the strength of the judiciary. In a strong separation of powers structure, one should expect a weaker judiciary, and vice versa. This nexus exists empirically, and is supported on normative and strategic grounds. (2) This nexus is manifested through a web of common law doctrines that developed to support a given separation of powers structure and shape the judicial oversight of the political branches. This Article identifies a list of common law doctrines—including standing, justiciability, deference, and judicial …

State Separation Of Powers And The Federal Courts, Ann Woolhandler

William & Mary Bill of Rights Journal

The cases discussed herein mostly surfaced in the regulatory era of the latter half of the nineteenth century and the early twentieth century. This Article first discusses arguments as to state delegations of legislative power, and the Court’s rejection of legislative-style deference that state agencies often argued for. This Article next discusses the Court’s decisions as to state adjudicative bodies, and its refusal to treat state agency adjudicators as full-fledged courts. This Article then addresses the Court’s response to arguments for unreviewable executive discretion and to laws allowing delegations to private parties. It then addresses whether the discussion sheds light …

The False Promise Of Expanded Religious Liberty Rights After The Covid-19 Cases And Fulton V. City Of Philadelphia, Shlomo C. Pill

William & Mary Bill of Rights Journal

This Article explains and critiques the Supreme Court’s recent reframing of religious free exercise rights. This change was initiated by a series of “shadow docket” rulings issued in late 2020 and early 2021 in which the Court sustained religious challenges to COVID-19 capacity restrictions and mask mandates. That doctrinal shift was confirmed and reinforced by the Court’s subsequence decision in Fulton v. City of Philadelphia. In these cases, the Court significantly narrowed the Smith test, which, since 1990, had subjected neutral and generally applicable laws that burden religious practice to only rational basis review. Under the Court’s new free …

Answering The Political Question: Demonstrating An Intent-Based Framework For Partisan Gerrymandering, Kyle H. Keraga

William & Mary Bill of Rights Journal

Partisan gerrymandering is widely recognized as a threat to the foundations of our democracy. Political parties with control over their state legislatures routinely leverage the redistricting process to entrench themselves in power—suppressing political adversaries, chilling public participation, and polarizing the electorate. Nevertheless, despite a persistent recognition that partisan gerrymandering is incompatible with basic democratic principles, the Supreme Court struggled to develop a stable and consistent doctrinal approach to this issue, even as reliable standards emerged to adjudicate malapportionment and racial gerrymandering claims. Recently, in Rucho v. Common Cause, the Court abandoned the search entirely, holding that partisan gerrymandering is …

In Search Of A Legislative Leviathan: Judicial Enforcement Of Senate Nominations Rules, Sam Simon

William & Mary Bill of Rights Journal

The Senate is trapped in a collective action problem. Both political parties would be better off if the Senate could consistently confirm judicial nominees on a reasonable timeline. However, when the party that controls the presidency does not control the Senate, Senate leaders face strong incentives to block nominees using whatever excuse they can find. Any Senate majority considering playing nice with a president of the opposing party runs the risk that its kindness will not be repaid when the tables are turned. The only rational strategy is to apply what scholars have called the Iron Rule: do unto others …