Constitutional Law Commons^™

Judging Offensiveness: A Rubric For Privacy Torts, Patricia S. Abril, Alissa Del Riego

Articles

How do we judge whether a violation of someone's privacy is offensive? Currently, U.S. tort law requires privacy violations be "highly offensive to a reasonable person" to afford redress. However, our research reveals that there is no effective analysis-or rhyme or reason-to determine what conduct, disclosure, or implication is offensive. Our review of hundreds of privacy tort cases concludes that the ambiguity of the offensiveness prong has created opportunity for both significant legal errors and thriving biases, which often lead to discriminatory and neglectful treatment of women, racial minorities, and other marginalized groups. This is particularly alarming because the offensiveness …

Is It Time To Bury Barry? Why An Old Change At The Legislature Requires A New Look At Washington's Nondelegation Doctrine, Daniel A. Himebaugh

Washington Law Review Online

Fifty years ago, the Supreme Court of Washington adopted a relaxed version of the nondelegation doctrine in a case called Barry and Barry v. Department of Motor Vehicles. The Barry rule, which only loosely restricts the delegation of policy-making power from the Legislature to other bodies, is now widely applied in Washington State. However, the Barry Court’s reasons for adjusting the nondelegation doctrine were based on an outdated understanding of the Legislature, especially its regular session schedule. While the Legislature’s regular sessions have changed since 1972—becoming longer and more frequent due to constitutional amendment—the Court has not considered how …

An Analytical Study On Legal Validity Of Online Dispute Resolution (Odr) System In India And Indonesia, Dr Rahul Nikam, Bangkim Singh Nongthombam

Indonesia Law Review

Advancement in technology brought many inevitable changes with more efficiency, making human life easier. Benefit of technology shall be incorporated for effective and efficient justice delivery in dispute resolution mechanism. New development in this area is online arbitration dispute resolutions (ODR) which have been without doubt adopted and practices by justice delivery system across the globe. But the question remains the same as whether justice delivery system is equipped to cope up in the same pace with the changes taking place in the society and technology. Are the existing laws being enough to conduct online system as an effective mechanism …

The Feud Of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet And Nemo Dat Quad Non Habet (Nemo Dat Rule) Legal Principles Against The Legal Principle Of Good Faith (Bona Fides) In Indonesian Courts, Yonatan Yonatan, Rosa Agustina

Indonesia Law Review

Abstract

A dispute over ownership of land rights between the real Original Owner and a Good Faith Purchaser can be assumed as a dispute over legal principles in the field of civil law, namely: the legal principle of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet, and the legal principle of Nemo Dat Quad Non Habet (Nemo Dat Rule) against the legal principle of good faith (bona fides). The legal principle of Nemo Plus Iuris Ad Alium Transferre Potest Quam Ipse Habet and the legal principle of Nemo Dat Quad Non Habet (Nemo Dat Rule) are legal principles …

Climate Change Adaptation As A Problem Of Inequality And Possible Legal Reforms, David A. Dana

Northwestern University Law Review

Climate change will necessitate adaptation in all parts of the United States, but some individuals and localities will be better able to adapt than others. Wealth inequalities among individuals and localities already are translating—and will continue to translate—into inequalities between the rich and poor in their capacity to adapt. Current federal disaster aid programs and policies exacerbate these inequalities by favoring the wealthy, and future government resource management decisions and investments also may broaden the gap between rich and poor in terms of the economic and other costs they will bear from climate change. Some have suggested broadening Takings Clause …

Property Law And Inequality: Lessons From Racially Restrictive Covenants, Carol M. Rose

Northwestern University Law Review

A long-standing justification for the institution of property is that it encourages effort and planning, enabling not only individual wealth creation but, indirectly, wealth creation for an entire society. Equal opportunity is a precondition for this happy outcome, but some have argued that past inequalities of opportunity have distorted wealth distribution in contemporary America. This article explores the possible role of property law in such a distortion, using the historical example of racially restrictive covenants in the first half of the twentieth century. I will argue that the increasing professionalization and standardization of real estate practices in that era included …

Preview; State V. Mefford: Scope Of Consent Searches In A Digitalized World, Spencer Pedemonte

Montana Law Review Online

No abstract provided.

Haaland V. Brackeen, Et Al.: Brief Of Indian Law Professors As Amici Curiae In Support Of Federal And Tribal Defendants, Matthew L.M. Fletcher

Appellate Briefs

Amici are professors and scholars of federal Indian law whose scholarship and clinical practice focus on the subject matter areas of Indian law, tribal powers, and federal- and state-court jurisdiction. Amici possess expertise in this area and an interest in ensuring that cases concerning these issues are decided consistently with the text of the United States Constitution, foundational principles in this area of law, and the express intent of Congress. Amici respectfully submit this brief to provide the Court history and context behind the Constitution’s use of Indian status classifications and the inherently political determinations that the legislative and executive …

Presidential Interpretation And War Powers, Tobias T. Gibson, Matthew R. Trout

SLU Law Journal Online

Judicial deference toward presidential decision making in national security has led to largely unencumbered presidential action in national security concerns. In this article, Matthew R. Trout and Tobias T. Gibson argue that presidential interpretation is a power of the president—a power that has enhanced an outsized presidential role in national security.

Haaland V. Brackeen, Et Al.: Brief Of Amici Curiae Administrative Law And Constitutional Law Professors In Support Of Deb Haaland, Secretary Of The Interior, Et Al., And Cherokee Nation, Et Al., Leah Litman, Daniel T. Deacon

Appellate Briefs

Amici curiae are professors of administrative law, constitutional law, and related public law subjects at institutions around the United States. They have extensive experience studying and teaching the text, history, and structure of the Constitution, as well Supreme Court decisions relating to Congress’s legislative powers and the supremacy of federal law. Their legal expertise thus bears directly on the constitutional issues in this case. Amici share an interest in the proper application of constitutional limits on Congress’s authority to enact supreme federal law and state courts’ obligations to decide properly presented federal questions.<\p>

The Indian Child Welfare Act (ICWA or …

High School Coaches Call A Foul: Important Considerations For High School Coaches Considering A Defamation Claim, Mallory Shumaker

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Protecting Fair Use From Algorithms, Internet Platforms, And The Copyright Office: A Critique Of The § 512 Study, Mary Kate Sherwood

St. John's Law Review

(Excerpt)

In 1994, the Supreme Court of the United States held that a musical group’s parody of a well-known song could be fair use, which is a noninfringing use of copyrighted content. In 2006, the Second Circuit found that an artist’s use of copyrighted photographs in his own artwork constituted fair use. In 2016, the Ninth Circuit found that a video of a child dancing to a short clip of a copyrighted Prince song could be fair use. But in 2022, a creator who attempts to share her fair use of copyrighted material online may not have recourse to the …

Funding Faith: The Paycheck Protection Program's Establishment Clause Violation, Brenna Jean O'Connor

St. John's Law Review

(Excerpt)

In the early months of 2020, COVID-19 had a swift and profound impact on public health, the economy, state and local governments, and businesses across the United States. In response, on March 27, 2020, the United States Congress passed the Coronavirus Aid, Relief, and Economic Security Act (“CARES Act”) to protect the American people from the worsening public health crisis and mitigate the resulting economic downturn. Additionally, within the CARES Act, Congress established the Paycheck Protection Program (“PPP”), which expanded the Small Business Administration’s (“SBA”) authority to guarantee forgivable loans to eligible small businesses. Among other prerequisites, the PPP …

Original(Ism) Sin, G. Alex Sinha

St. John's Law Review

(Excerpt)

During President Trump’s term in office, the Senate confirmed nearly 250 of his federal judicial nominees, including 3 to the Supreme Court of the United States. That number amounts to nearly a third of the federal judiciary’s roughly 800 active members. By and large, the judges nominated by President Trump purport to apply some form of originalist constitutional interpretation or construction, though the subject of originalism featured perhaps most prominently at the confirmation hearings for Amy Coney Barrett, whom President Trump nominated in October of 2020 to replace Justice Ruth Bader Ginsburg. Whatever one thinks of the vast literature …

Bring On The Chicken And Hot Oil: Reviving The Nondelegation Doctrine For Congressional Delegations To The President, Loren Jacobson

St. John's Law Review

(Excerpt)

The so-called “nondelegation doctrine” posits that Congress may not transfer its legislative power to another branch of government, and yet Congress delegates its authority routinely not only to the President, but to a whole host of other entities it has created and that are located in the executive branch, including executive branch agencies, independent agencies, commissions, and sometimes even private parties. Recognizing that “in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives,” the Supreme Court of the United States …

Few Lessons For Pa. From Kansas Abortion Vote. Gop Still Should Beware, Bruce Ledewitz

Newspaper Columns

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

National Pork Producers Council V. Ross: Brief Of Professors Barry Friedman And Daniel T. Deacon As Amici Curiae In Support Of Respondents, Daniel T. Deacon

Appellate Briefs

Barry Friedman is the Jacob D. Fuchsberg Professor of Law and Affiliated Professor of Politics at New York University Law School and is one of the country’s leading authorities on constitutional law and the federal courts. Daniel T. Deacon is a Lecturer at the University of Michigan Law School and has published extensively on topics that include constitutional and administrative law. Professors Friedman and Deacon are the authors of A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause, 97 Va. L. Rev. 1877 (2011), a leading article examining the origins of the Commerce Clause and defending the validity …

The Supervisory Jurisdiction Of The Palestinian Constitutional Court Over Legislative Abstention: Acomparative Analytical Study, عمر ح. التركماني

UAEU Law Journal

تناولت هذه الدراسة موضوع رقابة القضاء الدستوري الفلسطيني على الامتناع التشريعي لمعالجة حالة الفراغ التشريعي الناجم عنه، حيث إنطلقت من تساؤل رئيس يتمثل في مدى الحدود التي تملكها المحكمة الدستورية الفلسطينية بالرقابة على الامتناع التشريعي في ضوء عدم وجود نص صريح يخولها هذا الاختصاص، ومن أجل الإحاطة بكل الجوانب المتعلقة بهذا الموضوع، قمنا بتقسيم الدراسة إلى ثلاثة مباحث، تناولنا في المبحث الأول منه ماهية الامتناع التشريعي ودوافع مواجهته، أما المبحث الثاني فقد خصصناه للحديث عن حدود سلطة المحكمة الدستورية في الرقابة على الامتناع التشريعي، وفي المبحث الثالث استعرضنا النتائج المترتبة على الأحكام التي صدرت عن المحكمة الدستورية الفلسطينية في …

Make Pennsylvania Free Again, Margaret Riley

The Compass

The author created this paper for a class assignment testing students’ knowledge of constitutional law. The assignment was to write a legal brief addressing the constitutionality of a statewide mask mandate during the COVID-19 pandemic. COVID-19 is an airborne disease that can be transmitted from person to person up to six feet apart. The hypothetical facts provided for this brief were that a suit was filed in Pennsylvania state court by a group of individuals in opposition to the state’s mask mandate that was enacted to address the COVID-19 pandemic. The goal of this brief is to demonstrate knowledge of …

What Does The Alex Jones Case Mean For The First Amendment And Disinformation? Leading Scholars, Lawyers Provide Analysis, George Freeman, Lyrissa Barnett Lidsky, Lynn Oberlander, Timothy Zick

Popular Media

No abstract provided.