Constitutional Law Commons^™

The Price Of Democracy: Evaluating The Excessing Fines Clause In Light Of Florida Felon Disenfranchisement, Raven Peters

William & Mary Bill of Rights Journal

This Note aims to show how the current test of proportionality is insufficient in combatting excessive fines, especially considering the racist and discriminatory practices of felon disenfranchisement. In Part I, this Note evaluates the background of the Eighth Amendment’s Excessive Fines Clause and its recent incorporation against the states. Part II will provide insight into the history of felon disenfranchisement in Florida and the fight for voter restoration through the passage of Florida Amendment 4. This section will then tell of the subsequent implementation of Florida Statutes section 98.0751 requiring ex-felons to pay all fines and fees associated with their …

Roe V. Wade Under Attack: Choosing Procedural Doctrines Over Fundamental Constitutional Rights, Simona Grossi

ConLawNOW

This Article details the Texas litigation on abortion rights in and out of the U.S. Supreme Court in 2021 and its implications for the future of constitutional rights. The litigation focused primarily on procedural issues like standing and sovereign immunity that prevented the plaintiffs’ claims of violation of fundamental constitutional rights to proceed to their merits. Such procedural doctrines have become a powerful tool in the hands of the Supreme Court used to control social and economic development. Thus procedure, originally conceived as the handmaid of justice, has become one of its main antagonists. This Article argues against such abuses …

How A Shuttered Bathroom At A Pgh Grocery Store Explains Structural Racism, Bruce Ledewitz

Newspaper Columns

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

Heirs Of An Administration: Unlawful Executive Actions, Jerome Perez

Catholic University Law Review

The Supreme Court of the United States in DHS v. Regents on June 18, 2020, decided to stall the Trump administration from rescinding the Deferred Action for Childhood Arrivals (DACA) policy that the Obama administration created contrary to the Administrative Procedures Act (APA)––even though in 2016 the Supreme Court affirmed a preliminary injunction on the Deferred Action for Parents of Americans (DAPA) policy, which mirrors DACA. This blunder offhandedly sacrifices the Supreme Court’s reputation as nonpartisan by enlisting itself as the future arbiter of administrative issues with self-evident resolutions and deciding contrary to those resolutions to endorse a political agenda. …

Administrative Apparition: Resurrecting The Modern Administrative State’S Legitimacy Crisis With Agency Law Analysis, Tabitha Kempf

Catholic University Law Review

There is an enduring discord among academic and political pundits over the state of modern American government, with much focus on the ever-expanding host of federal agencies and their increasing regulatory, investigative, enforcement, and adjudicatory authority. The growing conglomerate of federal agencies, often unfavorably regarded as the “administrative state,” has invited decades of debate over the validity and proper scope of this current mode of government. Advocates for and against the administrative state are numerous, with most making traditional constitutional arguments to justify or delegitimize the current establishment. Others make philosophical, moral, or practical arguments in support or opposition. Though …

Neither Trumps Nor Interests: Rights, Pluralism, And The Recovery Of Constitutional Judgment, Paul Linden-Retek

Cleveland State Law Review

This Article develops a novel framework for the adjudication of rights in an age of partisan and societal polarization. In so doing, it defends judicial review in a divided polity on new grounds. The Article makes two broad interventions.

First, the Article cautions against recent calls to shift rights adjudication in the United States from Dworkinian categoricalism toward proportionality analysis. Such calls correctly identify how categoricalism, by embracing the absolute nature of rights as “trumps,” pits citizens harshly against one another. The problem, however, is that proportionality’s proponents fail to see how it imposes a rights absolutism of its own. …

Implications Of Non-Exclusive Choice Of Forum Clauses In Determining The Competent Dispute Resolution Forum In Indonesia, Alvansa Vickya, Tiurma M.P. Allagan

Indonesia Law Review

This research aims to analyze the implications of a non-exclusive choice of forum clause in determining the competent dispute resolution forum in Indonesia based on theories related to Private International Law, International Contract Law, and International Civil Procedure Law. Based on the results of this research, the implications of the non-exclusive choice of forum clause in determining the competent dispute resolution forum in Indonesia have not been fully regulated by Indonesian laws and regulations. This can be seen from the use of the doctrines of forum non conveniens, lis pendens, and res judicata, the three of which are still not …

Neither Trumps Nor Interests: Rights, Pluralism, And The Recovery Of Constitutional Judgment Of Constitutional Judgment, Paul Linden-Retek

Journal Articles

A longer, unedited version of this article is available via the 'Additional Files' link at the bottom of the page.

This Article develops a novel framework for the adjudication of rights in an age of partisan and societal polarization. In so doing, it defends judicial review in a divided polity on new grounds. The Article makes two broad interventions.

First, the Article cautions against recent calls to shift rights adjudication in the United States from Dworkinian categoricalism toward proportionality analysis. Such calls correctly identify how categoricalism, by embracing the absolute nature of rights as “trumps,” pits citizens harshly against one …

“Rap Music On Trial”: Examining The Consequences Of Rap Lyrics Being Admissible At Trial, Malik Stewart

SLU Law Journal Online

Rap lyrics are being deemed admissible in court to convict criminal defendants. In this article, Malik Stewart considers the consequences of admitting rap lyrics to evidence to prove a defendant’s guilt, possible First Amendment violations, the efforts to prevent prosecutors from using rap lyrics as evidence, and the ways in which rap music is being targeted by prosecutors. The article also considers the emergence of Drill music and what to expect moving forward.

Symposium: Sexual Orientation, Gender Identity, & The Constitution: Queer Black Trans Politics And Constitutional Originalsim, Marc Spindelman

ConLawNOW

Queer Black trans politics offer an important frame for understanding the current constitutional moment. This is a moment in which the Supreme Court’s newly enthroned constitutional originalist project is taking off in ways that have race, sex, sexuality, and trans equality rights in its sights. Thinking with queer Black trans politics—and, in particular, their demands for intersectionality and for centering Black trans lives—this Essay presents a distinctive topology of LGBTQ rights and their intersections with constitutional race and sex guarantees. It considers how a queer Black trans-focused intersectional thinking plays out, including in the context of reproductive rights, and traces …

The Next Small Step, Samiya Henry

Undergraduate Research and Scholarship Symposium

As of right now, NASA and other space programs are estimating that by 2026, there will be people living in Space. Whether it be the Moon or Mars, one cannot have a functional society without a proper source of laws, especially since no one country has ownership over space. "One Small Step" will produce this source of laws, called the “Space Bill of Rights,” that will outline important matters like the trade of resources, medical care, government officials, and will ensure the preservation of our physical and figurative footsteps in space. This Space Bill of Rights is made up of …

Law School News: Welcome, Professor Bernard Freamon 04-20-2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The Incomprehensibility Of Nevada's Capable-Of-Repetition-Yet-Evading-Review Doctrine, Tom Stewart

Nevada Law Journal Forum

Nevada appellate courts recognize and apply an exception to the mootness doctrine that exists in federal court but does not currently have any basis in any state court rule or statute and, thus, should not be applied by Nevada’s appellate courts. Indeed, because no statute or court rule authorizes the Nevada appellate courts to hear cases that have been rendered moot but may be capable of repetition, yet evade review, Nevada’s appellate courts have no authority to do so. Thus, the appellate courts’ decisions entered on that basis are void. However, the solution to this problem is simple: the Nevada …

Protecting A Woman’S Right To Abortion During A Public Health Crisis, San Juanita Gonzalez

The Scholar: St. Mary's Law Review on Race and Social Justice

As COVID-19 infected our nation, states were quick to issue executive orders restricting various aspects of daily life under the pretense of public safety. It was clear at the outset that certain civil liberties were going to be tested. Among them, the constitutional right to an abortion.

This comment explores Texas’ response to the COVID-19 pandemic and the limitations it imposed on abortion access. It will attempt to address the legitimacy of the “public health concerns” listed in executive orders issued throughout numerous states and will discuss the pertinent legal framework and judicial scrutiny to apply.

According to the Fifth …

The Shurtleff Conundrum: Resolving The Conflict In Government-Speech And Public Forum Analysis, James Walraven

Duke Journal of Constitutional Law & Public Policy Sidebar

Shurtleff v. Boston is the Supreme Court's latest opportunity to clarify the murky line between the "government-speech" and "public forum" doctrines. The Court will decide whether the City of Boston violated the Free Speech Clause by refusing to fly a flag with Christian imagery in front of City Hall. The City had previously allowed the flying of numerous national and cultural flags by various organizations, but refused to fly a conservative social organization's "Christian flag" because of the City's fear of appearing to endorse a particular religion.

Under the public forum doctrine, private citizens' free speech is protected to varying …

Are Constitutional Rights Enough? An Empirical Assessment Of Racial Bias In Police Stops, Rohit Asirvatham, Michael D. Frakes

Northwestern University Law Review

This Article empirically tests the conventional wisdom that a permissive constitutional standard bearing on pretextual traffic stops—such as the one announced by the Supreme Court in Whren v. United States—contributes to racial disparities in traffic stops. To gain empirical traction on this question, we look to state constitutional law. In particular, we consider a natural experiment afforded by changes in the State of Washington’s rules regarding traffic stops. Following Whren, the Washington Supreme Court first took a more restrictive stance than the U.S. Supreme Court, prohibiting pretextual stops by police officers, but later reversed course and instituted a …

Noncitizens' Rights In The Face Of Prolonged Detention: Johnson V. Arteaga-Martinez, Samantha L. Fawcett

Duke Journal of Constitutional Law & Public Policy Sidebar

Under the Immigration and Nationality Act (the "INA"), codified in part at 8 U.S.C. § 1231, the federal government generally has ninety days to successfully deport a detained noncitizen who has reentered illegally after being removed once before. While exceptions to this time limit exist, the United States Supreme Court determined in 2001 that detention under Section 1231 cannot be indefinite.[1]

Now, more than two decades later, the Court must elaborate further. In Johnson v. Arteaga-Martinez, the Court must decide how long a detainment can last beyond the ninety-day statutory limit while a detainee seeks relief from deportation through …

Xiaomi Corporation V. U.S. Department Of Defense: Defending The International Emergency Economic Powers Act, Bailey Williams

Duke Journal of Constitutional Law & Public Policy Sidebar

The International Emergency Economic Powers Act (IEEPA) provides the Executive with emergency authority to act in the realm of foreign affairs and national security. As global power struggles increasingly play out in financial markets as opposed to battle fields, the United States is leveraging global capital markets, banking, and financial systems to effectuate national security goals – and is relying on IEEPA to do so. However, critics argue IEEPA lacks appropriate procedural safeguards given the courts' general deference to the Executive acting pursuant to national security and the corresponding lack of Congressional oversight.

After assessing various criticisms of IEEPA, this …

Toomey’S Vote Against Ketanji Brown Jackson Set A Dangerous Precedent. Here's Why, Bruce Ledewitz

Newspaper Columns

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

Affirmative Action Tested: The Constitutionality Of “Landscape”, Eric James Seltzer

St. John's Law Review

(Excerpt)

In August 2019, the College Board announced it was launching a program providing higher education institutions with “context about students’ high schools and neighborhoods when making admissions decisions.” In August 2019, the College Board announced it was launching “Landscape,” a program providing higher education institutions with “context about students’ high schools and neighborhoods when making admissions decision.” Landscape collects and organizes data into three categories—basic high school data, such as school locale, test score comparison, and high school and neighborhood indicators—that offers insight into high schools and neighborhoods. Among these indicators are quintessential measures of socioeconomic status, including college …