Constitutional Law Commons^™

Let My People Go, Part One: Black Rebellion And The Second Amendment Political Necessity Defense, Kindaka Sanders

William & Mary Bill of Rights Journal

This Article argues that when an individual or group acts to protect a government-assailed constitutional right by criminal means, the doctrine of political necessity may serve as a constitutionally protected defense. The doctrine of political necessity builds on the common law doctrine of necessity. The necessity doctrine, also referred to as the “choice of evils” defense, exonerates an individual who creates a social harm to allay a greater harm to herself or others. Both state and federal courts have been especially reluctant to allow the use of the necessity defense in cases with political implications, in which the defendant acts …

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.

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

2022–2023 Flyers

Click here to view the event invitation.

The Long Road To Justice: Why State Courts Should Lower The Evidentiary Burden For Proving Racialized Traffic Stops And Adopt The Exclusionary Rule As A Remedy For Equal Protection Violations, Abby M. Fink

Washington Journal of Social & Environmental Justice

Racist and brutal policing continues to pervade the criminal legal system. Black and brown people who interact with the police consistently face unequal targeting and treatment. Routine traffic stops are especially dangerous and harmful and can lead to death. Under Whren, a police officer’s racist motivations or implicit bias towards a driver do not influence the constitutionality of a traffic stop. An officer only needs to show there was probable cause to believe a traffic stop occurred. Although the unconstitutionality of pre-textual traffic stops has been widely explored since Whren, both federal and state courts have struggled to find legal …

Symposium: The Future Of Reproductive Rights: Situating Dobbs, Paula Monopoli

ConLawNOW

This Article applies the concept of constitutional memory to the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization to dispute the dominant view that the case was unique in erasing a constitutional right. It offers three examples—voting, Prohibition, and protective labor legislation—to illustrate how situating Dobbs within an expansive view of feminist legal history teaches us that it is not the only—just the most recent—example of the Court’s eroding or erasing previously recognized legal protections or rights that had a positive impact on women’s lives. It concludes that Congress, the Supreme Court, and the People themselves have been …

Symposium: The Future Of Reproductive Rights: Foreign Law In Dobbs: The Need For A Principled Framework, Sital Kalantry

ConLawNOW

This article critiques the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization for its unprincipled and superficial use of foreign law sources to overturn Roe v. Wade. It explains the surprising use of foreign law by conservative justices who had previously opposed all use of non-US law in decision-making. And it shows how international and foreign law can be used on by either side to both expand and retrench rights. The article thus argues for a more principled framework for when and how to use international law sources including a more contextual analysis of that law.

Protecting Natural Stewardship: Public Trusts, Wildlife Trusts, And The Effect Of Trophic Cascades, Nicholas Massey

Duke Journal of Constitutional Law & Public Policy Sidebar

The reintroduction of the Gray Wolf to the Greater Yellowstone Ecosystem conferred extensive ecological benefits to the region. The wolves' return resulted in a phenomenon known as a "trophic cascade," in which the presence of apex predators atop a food pyramid effectuates a "waterfall" of ecosystem-wide benefits. For example, the Gray Wolf has curtailed bloated elk populations, which has in turn reduced the damage of elk herds overgrazing on willow, aspen, and cottonwood plants—critical sources of food for the region's beavers. Importantly, the wolves' benefits are not confined to flora and fauna. Scientists have even discovered geological and riparian benefits …

The Spirit Of Gun Laws, Noah Levine

Duke Journal of Constitutional Law & Public Policy Sidebar

The firearms debate in the United States often pits public health against freedom. This false dichotomy implies that gun laws, even wise ones, inherently erode individual liberty. Indeed, this appeal to liberty finds fertile ground in the United States, where many Americans intuitively reject any incursion on their freedom. Yet this one-sided conception of liberty is, at best, incomplete: while the government can certainly encroach on our freedom, so too can our fellow citizens.

A historically grounded conception of liberty in the United States includes the sense of security that fosters self-expression without fear of arbitrary constraint. That is, when …

Allen V. Milligan: Anticlassification And The Voting Rights Act, Graham Stinnett

Duke Journal of Constitutional Law & Public Policy Sidebar

The "crown jewel" of the Civil Rights Movement, the Voting Rights Act of 1965 has been called "one of the most effective statutes ever enacted." However, in 2013 the Supreme Court famously gutted the Voting Rights Act in Shelby County v. Holder. Nearly a decade later, in Allen v. Milligan, the Court is now signaling that Section 2, the last remaining core provision of the Voting Rights Act, could be on the chopping block. With Milligan, the Court may be preparing to inject race-neutrality into Section 2, which could destroy the vestiges of the onetime "super-statute."

This …

Discretionary Disfunction And Shivers V. United States: Consequences Of Assuming The Intent Of Congress, Emily B. Garza

Texas A&M Law Review

The discretionary function exception is a powerful departure from the Federal Tort Claims Act’s general waiver of sovereign immunity. This exception applies where government employees commit a tort while acting within the discretion of their position. While there has been a lengthy and varying jurisprudential history surrounding the application of the discretionary function exception, neither the Supreme Court nor Congress has addressed whether violations of constitutional rights fall within the scope of a discretionary act.

This lack of clarity proved harmful for individuals like Mackie Shivers in Shivers v. United States because the discretionary function exception swallowed his claim for …

An Imperfect Solution: The Due Process Case For Providing Court-Appointed Interpreters For Pro Se Plaintiffs, Abdullah Z. Khalil

Texas A&M Law Review

A federal law, the Court Interpreters Act, provides litigants with complimentary access to a qualified or professionally certified interpreter in actions instituted by the United States. The majority of pro se civil litigation in federal courts is initiated by the United States, and thus, those pro se litigants who speak little-to-no English need not pay for access to an exceptional interpreter. Indeed, federal courts offer interpreters proficient in a multitude of languages, and the courts work hard to ensure adequate interpretation in proceedings brought by the United States.

However, those limited-English-proficient pro se plaintiffs initiating their own lawsuits face a …

Match Up: Increasing Disclosure Of Facial Recognition Technology With Criminal Discovery Rules, Paget Barranco

Duke Journal of Constitutional Law & Public Policy Sidebar

Facial recognition technology (FRT) is an automated computer tool that compares the image of one face in a target image to one or more images of other faces. Law enforcement at both the federal and state levels increasingly use FRT to identify unknown perpetrators of crimes. FRT has great potential to generate investigative leads and assist in solving crimes, but there are issues with the technology and a lack of transparency about how it is used. Further, law enforcement and prosecutors may not disclose information about the FRT search results that they relied on to identify a suspect, affecting defense …