Constitutional Law Commons^™

Reconsidering Section 1983'S Nonabrogation Of Sovereign Immunity, Katherine Mims Crocker

Faculty Scholarship

Motivated by civil unrest and the police conduct that prompted it, Americans have embarked on a major reexamination of how constitutional enforcement works. One important component is 42 U.S.C. § 1983, which allows civil suits against any “person” who violates federal rights. The U.S. Supreme Court has long held that “person” excludes states because Section 1983 flunks a condition of crystal clarity.

This Article reconsiders that conclusion—in legalese, Section 1983’s nonabrogation of sovereign immunity—along multiple dimensions. Beginning with a negative critique, this Article argues that because the Court invented the crystal-clarity standard so long after Section 1983’s enactment, the caselaw …

Confrontation’S Multi-Analyst Problem, Paul F. Rothstein, Ronald J. Coleman

Texas A&M Law Review

The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes that require multiple analysts, should the prosecution be required to produce …

The Jury Trial Reinvented, Christopher Robertson, Michael Elias Shammas

Texas A&M Law Review

The Framers of the Sixth and Seventh Amendments to the United States Constitution recognized that jury trials were essential for maintaining democratic legitimacy and avoiding epistemic crises. As an institution, the jury trial is purpose-built to engage citizens in the process of deliberative, participatory democracy with ground rules. The jury trial provides a carefully constructed setting aimed at sorting truth from falsehood.

Despite its value, the jury trial has been under assault for decades. Concededly, jury trials can sometimes be inefficient, unreliable, unpredictable, and impractical. The COVID–19 pandemic rendered most physical jury trials unworkable but spurred some courts to begin …

A Reasonable Possibility Of Refoulement: The Inadequacies Of Procedures To Protect Vulnerable Noncitizens From Return To Persecution, Torture, Or Death, Lexie Marilyn Ford

Texas A&M Law Review

Due primarily to increases in individuals fleeing violence and turmoil in Central America, over 40% of noncitizens arriving in the United States are put on a fast-track removal process and subsequently claim fear of returning to their home countries. A decade ago, the number was only 5%. This influx of asylum-seekers at the border has led to tension between those who wish to protect them and those who view such migrants as “invaders.” In 2019 and 2020, the Trump Administration proffered sweeping regulatory changes with the aim to substantively and procedurally restrict noncitizens’ access to protection from persecution and torture …

Regulating Armed Private Militia Gatherings: A Constitutional State-Level Proposal To Promote Public Safety In A Post-Heller World, Sean Tenaglia

William & Mary Law Review

“Yesterday, in my view, was one of the darkest days in the history of our nation.” President Joseph R. Biden spoke these words following the January 6, 2021 riots at the U.S. Capitol Building that left five people, including a police officer, dead. The mob that stormed the Capitol sought to prevent Congress from certifying then-President-elect Biden’s Electoral College victory. In the weeks following the riot, investigators began arresting rioters associated with extremist right-wing militia groups, such as the Oath Keepers and Three Percenters. While January 6, 2021, can accurately be labeled a dark day in American history, the events …

Board Gender Diversity: A Path To Achieving Substantive Equality In The United States, Kimberly A. Houser, Jamillah Bowen Williams

William & Mary Law Review

While the European Union (EU) was founded on the concept of equality as a fundamental value in 1993, the United States was created at a time when women were considered legally inferior to men. This has had the lasting effect of preventing women in the United States from making inroads into positions of power. While legislated board gender diversity (BGD) mandates have been instituted in some EU countries, the United States has been loath to take that route, relying instead on the goodwill of corporate boards, with little progress. On September 30, 2018, however, California enacted a law that has …

Ag-Gag Illustrated, Jodi Lazare, Petroglyph Comics

Articles, Book Chapters, & Popular Press

In February 2021, Professor Jodi Lazare was contacted by Petroglyph Comics, a social justice comic studio, that wanted to turn her research on Canadian ag-gag legislation into a comic, accessible to all. The resulting comic is based on two articles by Prof. Lazare, the first published in the Alberta Law Journal and the second currently under review at a second Canadian law journal. Both articles combine her interests in animal law and constitutional law to suggest that recently adopted legislation limiting access to and information about industrially farmed animals in Canada constitutes an unjustified limit to the constitutional right …

Menstrual Dignity And The Bar Exam, Margaret E. Johnson, Marcy L. Karin, Elizabeth Cooper

All Faculty Scholarship

This Article examines the issue of menstruation and the administration of the bar exam. Although such problems are not new, over the summer and fall of 2020, test takers and commentators took to social media to critique state board of law examiners’ (“BOLE”) policies regarding menstruation. These problems persist. Menstruators worry that if they unexpectedly bleed during the exam, they may not have access to appropriately sized and constructed menstrual products or may be prohibited from accessing the bathroom. Personal products that are permitted often must be carried in a clear, plastic bag. Some express privacy concerns that the see-through …

Judicial Populism, Anya Bernstein, Glen Staszewski

Faculty Scholarship

Discussions of populism generally focus on politics. This Article identifies a related phenomenon in law. Judicial populism uses political populism’s tropes, mirrors its traits, and enables its practices. Like political populism, judicial populism insists that there are clear, correct answers to complex, debatable problems. It disparages the mediation and negotiation that characterize democratic institutions and rejects the messiness inherent in a pluralistic democracy. Instead, it simplifies the issues legal institutions address and claims special access to a true, single meaning of the law.

In this image, there is no room for legitimate disagreement. Writers in this vein often accuse those …

There Is Only One Texas Constitution, Joshua Morrow

St. Mary's Law Journal

The pre-ratification text of the Texas Constitution appeared throughout the state in conflicting English-and foreign-language copies. Some commentators argue that it is impossible to know which copy the people ratified, or even that Texas does not have a constitution. These arguments create theoretical problems, because courts interpreting the constitution assume that it consists of fixed and determinable text. And the principle of popular sover­eignty precludes denying that the constitution exists. The conflicting copies also create practical problems. Are the legislature’s acts void for failing to include a Spanish-language enacting clause? May the state imprison citizens for debt, since the German …

Parity As Comparative Capacity: A New Empirics Of The Parity Debate, Meredith R. Aska Mcbride

University of Cincinnati Law Review

In 1977, Burt Neuborne published an article in the Harvard Law Review proclaiming that parity was a “myth”—that state courts could not be trusted to enforce federal constitutional rights. For the next 15 years, the question of parity (the equivalence of state and federal courts in adjudicating federal causes of action) was at the forefront of federal courts scholarship. But in the early 1990s, the parity debate ground to a halt after important commentators proclaimed it an empirical question that, paradoxically, could not be answered by any existing empirical methods. This article argues that proposition was unfounded at the time …

When The Conditions Are The Confinement: Eighth Amendment Habeas Claims During Covid-19, Michael L. Zuckerman

University of Cincinnati Law Review

The COVID-19 pandemic cast into harsher relief much that was already true about mass incarceration in the United States. It also cast into harsher relief much that was already true about the legal barriers confronting people seeking to make its conditions more humane. This Article offers a brief overview of the legal landscape as the COVID-19 crisis arose and then surveys eight prominent federal cases involving Eighth Amendment claims related to COVID-19 outbreaks at carceral facilities, most of which included significant litigation over whether they could secure release through habeas corpus. The Article then distills six key tensions from these …

Reviving The Poll Tax: Voter Id And Debt Laws, Cynthia Boyer

ConLawNOW

In the United States, disenfranchisement is deeply rooted in history as a form of punishment—a dual penalty. In the late nineteenth century, the poll tax first emerged to restrict voting and limit the expansion of suffrage to Black men. Primarily aimed at minorities, these laws on disenfranchisement became a significant barrier to U.S. ballot boxes. Even though the poll tax was finally outlawed in federal elections in 1964, nowadays it takes another subtle form through the prism of voter identification laws. Thirty-five states currently have voter ID laws, with varying criteria and accepted forms of documentation, thus requesting or requiring …

United States V. Texas: Brief Of Legal Scholars Leah Litman, Erwin Chemerinsky, Michael C. Dorf, Barry Friedman, And Fred O. Smith As Amici Curiae In Support Of Petitioner, Leah Litman

Appellate Briefs

Amici curiae are constitutional law scholars who teach and write in the fields of constitutional law and federal courts. They share an interest in promoting the appropriate role of the federal courts in maintaining the supremacy of federal law, and in preserving our federal constitutional system and the rule of law.<\p>

In this case, this Court is asked to consider whether the United States may seek relief in federal court to protect constitutional rights in the face of state subterfuge designed to undercut those rights. Texas’s efforts to evade judicial review of Senate Bill 8 (“S.B. 8”) are central to …

The Second Amendment Has Become A Threat To The First, Diana Palmer, Timothy Zick

Popular Media

No abstract provided.

Winston Churchill On The American Constitution, Gerard N. Magliocca

St. John's Law Review

(Excerpt)

Though best known for leading Britain during World War II, Winston Churchill was a keen observer of constitutional law. Most of his insights concerned the unwritten conventions of the British Constitution, but Churchill also commented extensively on the American Constitution. Intellectual curiosity and a desire to forge a closer alliance between Great Britain and the United States were at the root of Churchill’s interest in the institutions of what he called “The Great Republic.” As with all things Churchill, his observations on our Constitution were sometimes inspiring, sometimes illuminating, and sometimes noxious.

This Article provides the first comprehensive analysis …

Book Talk: The Cult Of The Constitution, Mary Anne Franks

ConLawNOW

In this essay based on remarks delivered as the 2020 Constitution Day lecture at the Center for Constitutional Law, Professor Franks previews her book, The Cult of the Constitution. It addresses Franks’ key thesis about fundamentalist approaches to legal texts and Constitution, which read texts in selective and self-interested ways that verify a particular world view and ignore interpretations or passages that complicate it. Her work highlights debates over guns and the Second Amendment and Black Lives Matter protests and the First Amendment as examples of this problematic constitutional fundamentalism. Instead, the book and essay point to the Fourteenth …

Motion For Leave To File And Brief For Amici Curiae Legal Scholars And Academics In Support Of Petitioner, David Rudenstine

Amicus Briefs

Amici Curiae are legal scholars and academics who have dedicated their careers to the study, teaching and practice of United States constitutional law, including the death penalty and methods of execution. Many amici have written scholarly articles on these topics.

Many amici listed below earlier wrote to this Court in 2018 by submitting a brief in Bucklew v. Precythe, 139 S. Ct. 1112 (2019), to apprise the Court of information regarding the availability of alternative methods of execution to be considered in clarifying the applicable Eighth Amendment standard for method-of-execution challenges. Amici agreed with the Court’s clear statement in …

Who Defends: Judge Sutton's Vision And The Challenge Of A Plural Executive, Katherine A. Shaw

Online Publications

It’s no secret that this is a perilous moment for American democracy. We’re nine months out from a deadly attack on the U.S. Capitol, launched with the explicit goal of disrupting the peaceful transfer of power following the 2020 presidential election. Congress appears gridlocked on basic questions of debt and spending, and the possibility of a default before the end of the year remains a live one, with the covid pandemic still ongoing. The U.S. Supreme Court is facing an unprecedented legitimacy deficit in the eyes of the public. Election experts warn that future American elections, including the 2024 election, …

Divine Intervention, Part Ii: Narratives Of Norm Entrepreneurship In Canadian Religious Freedom Litigation, Kathryn Chan, Howard Kislowicz

Dalhousie Law Journal

Constitutional litigation has become a central arena for debate about human rights. Groups from all points on the political spectrum have turned to legal advocacy, “intervening” in judicial proceedings in an effort to advance their preferred interpretations of particular rights.

Judges and scholars remain divided on whether and how interveners are valuable. This paper evaluates a main rationale for intervention: interveners improve adjudication by enriching courts’ understandings of the issues before them. We use qualitative analysis to examine the extent to which interveners in Canada have succeeded in contributing to judicial pronouncements on the scope and meaning of religious freedom. …