Constitutional Law Commons^™

Revitalizing The Ban On Conversion Therapy: An Affirmation Of The Constitutionality Of Conversion Therapy Bans, Logan Kline

University of Cincinnati Law Review

No abstract provided.

Political Equality And First Amendment Challenges To Labor Law, Luke Taylor

University of Cincinnati Law Review

This Article conceptualizes a novel basis for defending laws that strengthen labor unions from First Amendment challenge: the argument that these laws are adequately tailored to advancing a compelling state interest in reducing economic inequality’s transmission into political inequality. The Article makes two principal contributions. First, it updates criticisms of the Supreme Court’s campaign finance decisions’ rejection of any compelling interest sounding in political equality. The Article does so by bringing recent constitutional scholarship to bear on that criticism and by explaining how recent improvements in social scientists’ ability to track different economic brackets’ political influence call for the Court …

Challenging Solitary Confinement Through State Constitutions, Alison Gordon

University of Cincinnati Law Review

Eighth Amendment jurisprudence has resulted in limited scrutiny of solitary confinement despite the known harms associated with the practice. The two-part test established by the federal courts to evaluate Eighth Amendment claims and limitations on challenging prison conditions under the Prison Litigation Reform Act can make it difficult to establish that solitary confinement is cruel and unusual punishment.

State constitutional challenges to solitary confinement are underexplored. Nearly all state constitutions contain an equivalent provision to the Eighth Amendment’s prohibition on cruel and unusual punishment. State courts need not be bound by federal jurisprudence in interpreting the scope of the state …

Dead Men Tell No Tales: Arkansas’S Grave Failure To Honor Its Constituents’ Postmortem Quasi-Property Right, Mckenna Moore

Arkansas Law Review

It is doubtful that Hulon Rupert Austin woke up on the day of March 7, 1986 and expected it to be his last. March 7 was a typical day—a workday—that started with a simple drive to a job site with his co-worker. A day that began so unremarkably ended with his co-worker looking up from where he was working to see “Austin lying on the ground.”

The High Price Of Poverty In Arkansas’S Courts: Rethinking The Utility Of Municipal Fines And Fees, Madison Miller

Arkansas Law Review

The opposite of poverty is not wealth. It is justice. Beginning in the 1980s, a "trail of tax cuts" led to budget shortfalls and revenue gaps throughout the United States. These budgetary problems resulted in many cities and towns shifting their burden of funding courts and the justice system at large "to the 'users' of the courts, including those least equipped to pay." Although "jailing an indigent person for a fine-only, low-level offense is unconstitutional," it is still an ongoing practice in many states, including Arkansas. In 1995, Arkansas passed new legislation to govern its circuit courts' collection and enforcement …

The National Popular Vote On Trial, Keaton Barnes

Arkansas Law Review

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them …

Korematsu’S Ancestors, Mark A. Graber

Arkansas Law Review

Mark Killenbeck’s Korematsu v. United States has important affinities with Dred Scott v. Sandford. Both decisions by promoting and justifying white supremacy far beyond what was absolutely mandated by the constitutional text merit their uncontroversial inclusion in the anticanon of American constitutional law.3 Dred Scott held that former slaves and their descendants could not be citizens of the United States and that Congress could not ban slavery in American territories acquired after the Constitution was ratified.5 Korematsu held that the military could exclude all Japanese Americans from portions of the West Coast during World War II.6 Both decisions nevertheless provided …

Creating Cautionary Tales: Institutional, Judicial, And Societal Indifference To The Lives Of Incarcerated Individuals, Nicole B. Godfrey

Arkansas Law Review

It has long been said that a society’s worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country’s facilities serve as models rather than cautionary tales. Justice Sonia Sotomayor, joined by Justice Ruth Bader Ginsburg, issued the above-quoted clarion call to protect the lives of incarcerated people on May 14, 2020. At that point, the COVID-19 pandemic had brought American society to a standstill for a little more than two months, …

The Flag Can Travel But The Constitution Must Ask Permission: How The First Circuit And The District For Puerto Rico Commit To Equal Protection Without Abandoning The Insular Cases Doctrine, Alejandro J. Anselmi González

University of Miami Inter-American Law Review

For American citizens, one of the most important safeguards guaranteed by the Constitution of the United States is the equal protection of the law. The United States prides itself on the doctrine and jurisprudence of equal protection because of the social progression achieved since the end of the Civil War. The Reconstruction Amendments to the Constitution eliminated the institution of slavery and were supposed to guarantee equal civil and legal status to all citizens. The Constitution, however, has not been consistently interpreted in this way since the end of the Spanish-American War in 1898. The nation emerged from this conflict …

Hslda Concerned With More Than Just Homeschool, Griffin S. Kelly

Capstones

My capstone is just one piece of a greater investigation into homeschooling in America. For my piece, my colleague Keith Medelis reported on the Home School Legal Defense Association, a premiere homeschooling advocacy group that provides legal advice to its members and lobbies against any regulations they find restrictive to the homeschooling process.

Our goal was to see exactly what their mission is because beyond homeschooling, the HSLDA advocates for small government, religious (mainly Christian) freedoms and protecting its members from child protective services.

A review of 84 court cases revealed that the HSLDA has occasionally engaged in legal battles …

Stop Calling Kyle Rittenhouse A Hero. He Killed Two Unarmed People, Bruce Ledewitz

Newspaper Columns

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

Johnson V. Superintendent Fayette Sci: Severing Ties With Pronoun Substitutions In Bruton Cases, Aubrey Link

Villanova Law Review (1956 - )

No abstract provided.

United States V. Garner: From Speeding Ticket To Drug Bust- Highlighting The Necessity Of An Alternative Approach To Analyzing Traffic Stop Extensions, Rocco Beltrami

Villanova Law Review (1956 - )

No abstract provided.

Protecting The Throne: The Third Circuit's Decision To Preserve Sovereign Immunity In Gentile V. Sec, Ryan Brady, John Reid

Villanova Law Review (1956 - )

No abstract provided.

Equal, But Only Conceptually: Explaining The Phenomenon Of Religious Losses In Contemporary Canadian Constitutional Cases Involving Conflicting Rights, Mike Madden

Dalhousie Law Journal

If there is no hierarchy of rights in Canada, then why does freedom of religion so often seem to lose in cases of conflicts with other rights? This article discusses five recent Canadian cases (involving same-sex marriages, controversial medical practices, the wearing of a niqab, and a Christian university’s sexual conduct policy) in order to expose how the courts regularly characterize freedom of religion as being conceptually equal to other rights, before ruling against freedom of religion on the facts of the particular cases. This phenomenon within Canadian rights jurisprudence is then justified within the article by reference to a …

Rearguard Or Vanguard? A New Look At Canada’S Constitutional Act Of 1791, Philip Girard

Articles & Book Chapters

The Constitutional Act 1791, which provided representative governments to Upper and Lower Canada, has often been regarded as a reactionary document. Here, a comparison with the constitutions of the eastern colonies of British North America as well as the pre-revolutionary constitutions of the Thirteen Colonies reveals a variety of ways in which the 1791 Act was more liberal and more committed to the popular element of the constitution than its comparators. The significance of the statutory form of the 1791 Act is emphasised and contrasted with the much less secure position of the popular element under prerogative constitutions. Significant concessions …

The Good, The Bad, And The Historically Anti-Semitic: An Analytical Comparison Of Anti-Hate Laws In Germany And The United States, Jamie Rauch

Brooklyn Journal of International Law

Confronted every day with drastically increasing accounts of hate crimes and hate speech, nations’ legislators have routinely tried and subsequently failed to implement effective legislation capable of curbing the hatred epidemic currently sweeping the globe. This failure is due in large part to the lack of a universal stance on hate crime regulation and criminalization. Two countries in particular, the United States and Germany, embody two diametrically opposing approaches taken by nations in the present-day war on hate speech. This Note explores the dramatic dichotomy between the legislative framework surrounding the regulation of hate speech in these two countries. This …

A Call To Replace The Apa’S Notice-And-Comment Exemption For Guidance Documents, Crystal M. Cummings

Brooklyn Law Review

Section 553 of the APA requires public “notice-and-comment” before a federal agency issues substantive rules and exempts from these procedures guidance documents that merely offer nonbinding insight and assistance on existing law. The problem of federal agencies using the notice-and-comment exemption to issue legislative rules that are legally binding has garnered considerable attention. Congressional efforts to amend the APA in response have failed and, in turn, variations have been offered on a seemingly simple fix—mandate or encourage agencies to solicit public input before issuing guidance documents. This note characterizes these proposals as overlays on the § 553(b)(A) exemption. The note …

Without A Voice, Without A Forum: Finding Iirira Section 1252(G) Unconstitutional, Amanda Simms

Brooklyn Law Review

The Federal Tort Claims Act (FTCA) abrogates sovereign immunity in certain circumstances to allow private individuals, regardless of citizenship, to sue the United States for specific torts committed by government officials. Yet when two lawful permanent residents—located in different parts of the country—separately tried to sue the government for wrongful removal, one court dismissed the suit for lack of subject matter jurisdiction while the other court did not. These decisions, though reaching opposite conclusions, both relied on federal immigration statute 8 U.S.C. § 1252(g) in order to determine whether judicial review of immigrants’ removal orders is precluded. This note argues …

Autonomous Corporate Personhood, Carla L. Reyes

Washington Law Review

Several states have recently changed their business organization law to accommodate autonomous businesses—businesses operated entirely through computer code. A variety of international civil society groups are also actively developing new frameworks— and a model law—for enabling decentralized, autonomous businesses to achieve a corporate or corporate-like status that bestows legal personhood. Meanwhile, various jurisdictions, including the European Union, have considered whether and to what extent artificial intelligence (AI) more broadly should be endowed with personhood to respond to AI’s increasing presence in society. Despite the fairly obvious overlap between the two sets of inquiries, the legal and policy discussions between the …