Constitutional Law Commons^™

Wal-Mart Stores, Inc. V. Texas Alcoholic Beverage Commission: The Supreme Court Misses Its "Shot" At Clarifying State Alcohol Regulations And The Commerce Clause, Josephine Battles

William & Mary Bill of Rights Journal

The Supreme Court erred by denying certiorari in Wal-Mart Stores, Inc. v. Texas Alcoholic Beverage Commission. The Texas statute that bans all publicly traded corporations from obtaining a license to sell liquor, but carves an exception for some Texas-run public corporations through an express clause, is in direct violation of the dormant Commerce Clause. The Texas Legislature disguised the public corporation ban as a “facially neutral” alcohol regulation, however, the ban is discriminatory towards out-of-state competitors in both its purpose and effect. Moreover, the Fifth Circuit’s decision in Wal-Mart Stores is firmly inconsistent with Supreme Court precedent. Additionally, the …

The Coddling Of The American Worker's Mind: The Anti-Free Speech Nature Of Popular Labor Law Reforms, Daniel V. Johns

William & Mary Bill of Rights Journal

As the nation enters an era in which a new presidential administration will likely push such labor law reforms, it is worth considering whether transparently anti-free speech reform measures make sense for the future of labor policy and law. This Article argues that they do not. Because employee free choice is furthered, not diminished, by hearing both sides of an issue, American workers should have the opportunity to hear and evaluate employer speech in the course of union campaigns. Only then can employees make an informed decision about their workplace future. In the end, freedom of speech furthers employee freedom …

Not So Objective Indicia: Why Public Polling And Ballot Referenda Could Create A More Concrete Standard For Eighth Amendment Objective Indicia Analysis, Jonathan Marchuk

William & Mary Bill of Rights Journal

The Eighth Amendment states that “[e]xcessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Through the Fourteenth Amendment, these restrictions on punishment are applicable to the states. Over the years, the interpretation of what constitutes cruel and unusual punishment has changed. Cruel and unusual punishments include those punishments that are greatly disproportionate to the committed offense, but what is considered a disproportionate punishment is not a static judgment. Instead, part of the proportionality analysis of the punishment to the crime looks to “the evolving standards of decency that mark the progress of a …

All The Sovereign's Agents: The Constitutional Credentials Of Administration, Kate Jackson

William & Mary Bill of Rights Journal

[...] This Article suggests that agency institutions should be measured against the notion that popular sovereignty demands not consensus and consent, but instead institutions that permit citizens to understand themselves as coequal participants in the collective decision-making process.

Part I situates administrative agencies in an understanding of liberal democratic constitutionalism that eschews outmoded notions of popular sovereignty and natural law. It will then explain how adequately conceived notions of the separation of powers and the rule of law cannot serve as indefeasible objections to administration. Part II makes a positive case for agency authority by drawing from the insights gained …

Hope Dies Last: The Progressive Potential And Regressive Reality Of The Antibalkanization Approach To Racial Equality, David Simson

Articles & Chapters

This Article relies on Critical Race Theory concepts and social science research to make an important and timely contribution to a debate in law and public policy that is both longstanding and of immense current importance: What is the relationship between social cohesion on the one hand, and racial equality progress on the other. Events over the last year have put this question into sharp relief. On the one hand, portions of the general public and at least some policymakers have signaled support for the demands of racial justice activists to reduce and eliminate systemic racism after too many tragedies …

The Public Accommodations Dilemma - Whose Right Prevails, Meg Penrose

Faculty Scholarship

This essay gives a brief history of religious liberty-based objections to public accommodations law promoting societal integration and provides a potential solution. It argues there are parallels between LGBTQ discrimination and race discrimination, including the continued resistance to full integration and equality. The essay suggests a potential solution to the public accommodations dilemma between anti-discrimination and religious liberty in redefining the scope of religious liberty. Courts should protect religious services and activities—not secular services and activities. The status (religious or secular) of the person providing services should be irrelevant. The focus of public accommodations laws, and legal challenges to these …

The Unbearable Emptiness Of Formalism: Autonomy, Equality, And The Future Of Affirmative Action, Rachel F. Moran

Faculty Scholarship

Debates over affirmative action in higher education generally focus on equality interests under the Fourteenth Amendment but ignore liberty interests under the First Amendment. That tendency persists, even though the academic freedom to enroll a diverse student body has allowed colleges and universities to defend race-conscious admissions programs against legal challenges for decades. Today, the rise of formalism in judicial interpretation poses new perils for these programs. Justice Powell’s seminal decision in Regents of the University of California v. Bakke was a pragmatic compromise that used diversity to temper the polarized debate over equality that sharply divided the Court. In …

Your Liberty Is Not A Right To Jeopardize My Health: How A State Covid-19 Vaccine Mandate Promotes Health Justice, Rebecca L. Doloski

Marquette Benefits and Social Welfare Law Review

The COVID-19 pandemic has once again brought the vaccine debate into the national spotlight. Except this time, whether to be vaccinated or not has become widely politicized and the rapid spread of misinformation has led to a deadly game of those who refuse to be vaccinated not only allowing themselves to be susceptible to a deadly virus, but also putting others at risk. In addition to the misinformation and politicization of this issue, the question of constitutionality of such measures is back in the spotlight as potential state vaccine mandates appear to be on the horizon. This paper seeks to …

Nonparty Jurisdiction, Aaron D. Simowitz, Linda J. Silberman

Vanderbilt Journal of Transnational Law

The Supreme Court's recent decisions on personal jurisdiction, including its 2021 decision in Ford Motor Co. v. Montana Eighth Judicial District Court, have all focused on the adjudication of plenary claims. In seven years, the Court has decided six major cases on personal jurisdiction in that context. However, these precedents also appear to guide lower courts in areas outside the traditional focus of personal jurisdiction doctrine but where personal jurisdiction is nonetheless necessary. For example, a court must have personal jurisdiction over a nonparty witness in order to compel the witness to testify or to produce documents. A court must …

Random Justice, Girardeau A. Spann

Georgetown Law Faculty Publications and Other Works

As recent Senate confirmation practices suggest, the Supreme Court is best understood as the head of a political branch of government, whose Justices are chosen in a process that makes their ideological views dispositive. Throughout the nation’s history, the Supreme Court has exercised its governing political ideology in ways that sacrifice the interests of nonwhites in order to advance the interests of Whites. In the present moment of heightened cultural sensitivity to structural discrimination and implicit bias, it would make sense to use affirmative action to help remedy the racially disparate distribution of societal resources that has been produced by …

The Living Rules Of Evidence, G. Alexander Nunn

Faculty Scholarship

The jurisprudential evolution of evidence law is dead. At least, that’s what we’re expected to believe. Ushered in on the wings of a growing positivist movement, the enactment of the Federal Rules of Evidence purported to quell judicial authority over evidence law. Instead, committees, conferences, and members of Congress would regulate any change to our evidentiary regime, thereby capturing the evolution of evidence law in a single, transparent code.

The codification of evidence law, though, has proven problematic. The arrival of the Federal Rules of Evidence has given rise to a historically anomalous era of relative stagnation in the doctrinal …

Perubahan Undang-Undang Oleh Putusan Mahkamah Konstitusi Dalam Kacamata Pasal 1 Ayat (2) Kuhp, Marco Hardianto

Indonesia Criminal Law Review

One of the basic principles in criminal law is the principle of transitory, namely the principle that regulates the enforcement of the law in the event of an amendment in legislation after a criminal act is committed. Regarding to the phrase 'amandment in legislation', there are three running doctrine: formele leer (Simons, 1910), beperkte materiele leer (Van Geuns, 1919), and onbeperkte materiele leer (Hoge Raad, 1921). These three doctrines developed prior to the recognition of judicial review by the Constitutional Court. Logical implication: Amendment in legislation as referred to in the principle of transitory does not include amendment as the …

Mencari Solusi Atas Masalah Pemidanaan Suatu Kebijakan Dengan Tindak Pidana Korupsi Di Indonesia, Muhammad Tanziel Aziezi

Indonesia Criminal Law Review

Constitutional Court Decision Number 25/PUU-XIV/2016 states that the word “dapat” in Article 2 Paragraph (1) and Article 3 of Law Number 31 Year 1999 jo. Law Number 20 of 2001 on Anti-Corruption Law has no binding legal force. This decision departs from the argument that the word "dapat" creates fear and anxiety from state officials about the practice of criminalizing policies with corruption because the word "dapat" causes state losses that do not have to occur in real terms. With this decision, a person can only be said to have violated Article 2 Paragraph (1) and Article 3 of the …

The Irrepressible Myth Of Jacobson V. Massachusetts, Josh Blackman

Buffalo Law Review

During the COVID-19 outbreak, Jacobson v. Massachusetts became the fountainhead for pandemic jurisprudence. Courts relied on this 1905 precedent to resolve disputes about religious freedom, abortion, gun rights, voting rights, the right to travel, and many other contexts. But Justice John Marshall Harlan’s decision was very narrow. It upheld the state’s power to impose a nominal fine on an unvaccinated person. No more, no less. Yet, judges now follow a variant of Jacobson that is far removed from the Lochner-era decision. And the Supreme Court is largely to blame for these errors. Over the course of a century, four prominent …

Clouded Precedent: Tandon V. Newsom And Its Implications For The Shadow Docket, Alexander Gouzoules

Buffalo Law Review

The Supreme Court’s “shadow docket”—the decisions issued outside its procedures for deciding cases on the merits—has drawn increasing attention and criticism from scholars, commentators, and elected representatives. Shadow docket decisions have been criticized on the grounds that they are made without the benefit of full briefing and argument, and because their abbreviated, per curiam opinions can be difficult for lower courts to interpret.

A spate of shadow docket decisions in the context of free-exercise challenges to COVID-19 public health orders culminated in Tandon v. Newsom, a potentially groundbreaking decision that may upend longstanding doctrines governing claims brought under the Free …

Cruel And Unusual Punishment: The Eighth Amendment And Ice Detainees In The Covid-19 Crisis, Nechelle Nicholas

Pace Law Review

No abstract provided.

Proper Cause For Concern: New York State Rifle & Pistol Association V. Bruen, Ali Rosenblatt

Duke Journal of Constitutional Law & Public Policy Sidebar

Gun rights and gun control advocates alike are watching the Supreme Court, to see what happens in New York State Rifle & Pistol Association, Inc. v. Bruen. In this pivotal Second Amendment case, the Court finds its first opportunity to substantially extend its 2008 decision in District of Columbia v. Heller, and to define the scope of the Second Amendment right to bear arms outside the home. The Court can decide this case narrowly by limiting its decision to the statutes at issue, New York’s “proper cause” regime (the “New York law”). Alternatively, the Court can rule broadly and use …

Commentary: The Pragmatic Consequentialism Of Justice Breyer, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Justice Stephen Breyer’s announcement of his intention to retire at the end of the Supreme Court’s current term provides occasion to contrast his approach to judging with the very different approach of the court majority he leaves behind. The contrast is frequently explained in partisan terms: Justice Breyer is a “liberal” who was appointed by a Democratic president (Bill Clinton), whereas the majority is “conservative,” having been appointed by three different Republican presidents (George H.W. Bush, George W. Bush, and Donald Trump).

The use of partisan labels to describe the different approaches to judging employed by the court’s two …

Recent Developments, Silas Heffley

Arkansas Law Review

In a case involving a Missouri televangelist, a purported COVID-19 cure, and state officials from Arkansas and California, the Eighth Circuit Court of Appeals affirmed the lower court’s dismissal for lack of personal jurisdiction.

The Problem Of Qualified Immunity In K-12 Schools, Sarah Smith

Arkansas Law Review

When thirteen-year-old Savana Redding arrived at school one autumn day in 2003, she was not expecting to be pulled out of her math class and strip searched. But, that is exactly what happened after the assistant principal suspected her of possessing and distributing “prescription-strength ibuprofen” and “over-the-counter. . .naproxen” after receiving information from another student. After Savana consented to a search of her backpack and other belongings—a search which turned up no evidence of drug possession—the assistant principal asked the school nurse and administrative assistant to search Savana’s clothes. To do this, the school officials asked Savana “to remove her …