Constitutional Law Commons^™

The Connick/Garcetti Split: Is Public Employee Association A Matter Of Public Concern?, Austin J. Wishart

University of Cincinnati Law Review

No abstract provided.

Speech Markets & Web3: Refreshing The First Amendment For Non-Fungible Tokens (Nfts), Tanner Dowdy

University of Cincinnati Law Review

No abstract provided.

Privacy Please — Direct Observation Drug Testing & Invasion Of Privacy, Elizabeth Black

University of Cincinnati Law Review

No abstract provided.

Racecraft And Identity In The Emergence Of Islam As A Race, Cyra Akila Choudhury

University of Cincinnati Law Review

Can a religion, over time and through its social and legal resignification, come to be a race? Drawing on Critical Race Theory (“CRT”), Critical Discourse Theory, the work of Karen E. and Barbara J. Fields and Cedric Robinson, this article argues that Islam has emerged as a race and Muslims as a racial group. To support the claim, Part I examines the theoretical basis for the argument. Applying the concept of “racecraft,” the article theorizes that racism produces both the racial group and race. As many have already argued, race is not based in biology; it is not a fact …

Weekly Pop-Up Class: Understanding The Lgbtq+ Civil Rights Movement And Why It Matters, Kate Shaw, Benjamin N. Cardozo School Of Law

2022 Event Invitations

Cardozo Professor Kate Shaw is the Co-Director of the Floersheimer Center for Constitutional Democracy. Before joining Cardozo, she worked in the White House Counsel’s Office as a Special Assistant to the President and Associate Counsel to the President. She clerked for Justice John Paul Stevens of the U.S. Supreme Court and Judge Richard A. Posner of the U.S. Court of Appeals for the Seventh Circuit.

There’S A Secular Need For The High Holy Days. This Is Why, Bruce Ledewitz

Newspaper Columns

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

The Fourth Amendment And The Problem Of Social Cost, Thomas P. Crocker

Northwestern University Law Review

The Supreme Court has made social cost a core concept relevant to the calculation of Fourth Amendment remedies but has never explained the concept’s meaning. The Court limits the availability of both the exclusionary rule and civil damages because of their “substantial social costs.” According to the Court, these costs primarily consist of letting the lawbreaker go free by excluding evidence or deterring effective police practices that would lead to more criminal apprehension and prosecution. But recent calls for systemic police reform by social movements have a different view of social cost. So too do calls for reforming qualified immunity. …

Blocking Nature's Vulnerable Calls For Help: The Tenth Circuit Dials Into The Telecommunications Act's Federal Environmental Preemption Clause In Santa Fe Alliance V. City Of Santa Fe, Samantha Speiss

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Taking Care With Text: "The Laws" Of The Take Care Clause Do Not Include The Constitution, And There Is No Autonomous Presidential Power Of Constitutional Interpretation, George Mader

Law Faculty Scholarship

“Departmentalism” posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the Executive Branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause includes the Constitution in “the supreme Law of the Land.” Therefore, the President is to execute the Constitution as a law. Or so the common argument goes. The presidential oath to “execute …

Weekly Pop-Up Class: Understanding The Lgbtq+ Civil Rights Movement And Why It Matters, Rachel B. Tiven, Benjamin N. Cardozo School Of Law

2022 Event Invitations

Rachel Tiven will discuss "A History of U.S. Immigration Exclusion." Tiven is a civil rights leader turned historian. As the head of national non-profits Lambda Legal, Immigration Equality, and Immigrant Justice Corps, Tiven fought for equality for immigrants and LGBTQ/HIV+ people. Tiven has been recognized for her work by the Advocate magazine, New York County Lawyers Association and United We Dream.

Cle Working Paper No. 3/2022--What Is The Test For Interlocutory Injunctions Affecting Homeless Encampments? A Critique Of Vancouver Fraser Port Authority V Brett And Associated Case Law, Stepan Wood

Centre for Law and the Environment

Vancouver Fraser Port Authority v Brett (VFPA v Brett), decided in 2020, marked a new low in judicial responses to the intersecting crises of housing, homelessness, poverty, toxic drugs, mental health, racism and colonialism. By dropping to the ground the already low bar for granting interlocutory injunctions to evict homeless encampments from publicly owned land i n BC, this decision invites a critical assessment of BC courts’ approach to homeless encampment injunctions. In this paper I present the first comprehensive survey of 21st century BC homeless encampment interlocutory injunction applications, which shows that they have an extremely high …

Solving The Procedural Puzzles Of The Texas Heartbeat Act And Its Imitators: New York Times V. Sullivan As Historical Analogue, Charles W. "Rocky" Rhodes, Howard M. Wasserman

Faculty Publications

The Texas Heartbeat Act (S.B. 8) prohibits abortions following detection of a fetal heartbeat while delegating exclusive enforcement through private civil actions brought by “any person,” regardless of injury, for statutory damages of a minimum of $10,000 per prohibited abortion. Texas sought to impose costly litigation and potentially crippling liability on reproductive health providers and rights advocates, with the hope of stopping abortion in the state. Prior to Dobbs v. Jackson Women’s Health Organization overruling Roe v. Wade and eliminating constitutional protection for abortion, the law represented a unique threat to reproductive freedom. But states are spreading S.B. 8’s exclusive …

Off-Reservation Treaty Hunting Rights, The Restatement, And The Stevens Treaties, Ann E. Tweedy

Washington Law Review

The underdevelopment of the law of off-reservation treaty hunting and gathering poses challenges for treatises like the groundbreaking Restatement of the Law of American Indians (“Restatement”). With particular attention to sections 83 and 6 of the Restatement, this Article explores those challenges and offers some solutions for dealing with them in subsequent editions of the Restatement. Specifically, this Article explores the potential usefulness of historical law in interpreting treaties, the need to tie treaty interpretation to the language of the treaty when an explicit right is at issue, the proper application of the reserved rights doctrine and the Indian canons, …

Keeping Our Republic, Ashlee A. Paxton-Turner

South Carolina Law Review

No abstract provided.

Certain Prosecutors: Geographical Arbitrariness, Unusualness, & The Abolition Of Virginia’S Death Penalty, Bernadette M. Donovan

Washington and Lee Journal of Civil Rights and Social Justice

Virginia’s abolition of the death penalty in 2021 was a historic development. As both a southern state and one of the country’s most active death penalty jurisdictions, Virginia’s transition away from capital punishment represented an important shift in the national landscape. This article considers whether that shift has any constitutional significance, focusing on the effect of Virginia’s abolition on the geographical arbitrariness of the country’s death penalty.

As a starting point, the death penalty in America is primarily regulated by the Eighth Amendment, which bars “cruel and unusual punishments.” The United States Supreme Court has held that the death penalty …

Atkins V. Virginia At Twenty: Still Adaptive Deficits, Still In The Developmental Period, Sheri Lynn Johnson, John H. Blume, Brendan Van Winkle

Washington and Lee Journal of Civil Rights and Social Justice

Twenty years ago, in Atkins v. Virginia, the Supreme Court of the United States held that the Eighth Amendment prohibited states from executing persons with intellectual disability. While the Court’s decision is laudable and has saved many of the most vulnerable persons from the executioner, its effect has been undermined by recalcitrant states attempting to exploit language in the opinion permitting states to create procedures to implement the (then) new categorical prohibition. In this article, we examine how some states have adopted procedures which are fundamentally inconsistent with the clinical consensus understanding of the disability and how one state, …

Constitutional Law—School Choice: The Landscape After Espinoza V. Montana Department Of Revenue And Contemporary Political Polarization, Peter Hughes

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—Fourth Amendment—Warrantless Key-Test Searches In Residential Door Locks, Jacob Hill

University of Arkansas at Little Rock Law Review

No abstract provided.

Bringing Congress And Indians Back Into Federal Indian Law: The Restatement Of The Law Of American Indians, Kirsten Matoy Carlson

Washington Law Review

Congress and Native Nations have renegotiated the federal-tribal relationship in the past fifty years. The courts, however, have failed to keep up with Congress and recognize this modern federal-tribal relationship. As a result, scholars, judges, and practitioners often characterize federal Indian law as incoherent and inconsistent. This Article argues that the Restatement of the Law of American Indians retells federal Indian law to close the gap between statutory and decisional law. It realigns federal Indian law with the modern federal-tribal relationship negotiated between Congress and tribal governments. Consistent with almost a half-century of congressional law and policy, the Restatement clarifies …

Tribal Sovereignty And Economic Efficiency Versus The Courts, Robert J. Miller

Washington Law Review

American Indian reservations are the poorest parts of the United States, and a higher percentage of Indian families across the country live below the poverty line than any other ethnic or racial sector. Indian nations and Indian peoples also suffer from the highest unemployment rates in the country and have the highest substandard housing rates. The vast majority of the over three hundred Indian reservations and the Alaska Native villages do not have functioning economies. This lack of economic activity starves tribal governments of the tax revenues that governments need to function. In response, Indian nations create and operate business …