Constitutional Law Commons^™

Rhode Island And Sports Law, Adam Epstein

Roger Williams University Law Review

No abstract provided.

State V. Depina, 245 A.3d 1222 (R.I. 2021), Christopher Minicucci

Roger Williams University Law Review

No abstract provided.

Ten Years Later, Prea Does Not Live Up To Its Goal: Amending The Statute To Reduce Discriminatory Violence Against Transgender Prisoners, Carla Aveledo

Roger Williams University Law Review

No abstract provided.

2021 Surveys Of Rhode Island Law

Roger Williams University Law Review

No abstract provided.

State V. Ricker, 252 A.3d 721 (R.I. 2021), Victor M.P. Vieira

Roger Williams University Law Review

No abstract provided.

Fifty More Years Of Ineffable Quo? Workers’ Compensation And The Right To Personal Security, Michael C. Duff

All Faculty Scholarship

During the days of Covid-19, OSHA has been much in the news as contests surface over the boundaries of what risks of workplace harm are properly regulable by the federal government. Yet the original statute that created OSHA—the Occupational Safety and Health Act of 1970—was not exclusively concerned with front-end regulation of workplace harm. Just over fifty years ago, the same Act mandated an investigation of the American workers’ compensation system, which consists of a loose network of independent state workers’ compensation systems. The National Commission created by the Act to carry out the investigation issued a report of its …

Signed, Sealed, Delivered? Problems With The Use Of Signature Matching To Verify Mail Voter Identity

Florida A & M University Law Review

During the 2020 election, the basic struggle to balance ballot access and election integrity played out in a more public fashion than at any time in recent memory. This begs several important questions. First, how did the American election system get to this point? The legal standards governing election law have long been debated and that uncertainty unleashed a flood of litigation in 2020. Second, why use signature matching—a practice which is methodologically unsound and steadily falling out of use—at all? The use of handwritten signatures to verify identity rather than to evidence attestation is on the decline in other …

Bias And Sexism: The Racial And Gender Wage Gap Affecting Black Women

Florida A & M University Law Review

The objective of this Article is to address the racial wage gap between Black and White women and provide a solution. Part I of this Article will discuss the history of Black women and White women in the workforce. Part II will discuss the gender wage gap as it applies to Black and White women in the 21st century. Part III will discuss how Title VII of the Civil Rights Act of 1964 and the Equal Pay Act has failed to address the gender and race issues that Black women face when it comes to work wages. Part IV will …

Distrust, Negative First Amendment Theory, And The Regulation Of Lies, Helen Norton

Publications

This symposium essay explores the relationship between “negative” First Amendment theory—rooted in distrust of the government’s potential for regulatory abuse—and the government’s regulation of lies. Negative First Amendment theory explains why many lies are protected from governmental regulation—even when the regulation neither punishes nor chills valuable speech (as was the case, for example, of the statute at issue in United States v. Alvarez). But negative theory, like any theory, also needs limiting principles that explain when the government’s regulation is constitutionally justifiable.

In my view, we engage in the principled application of negative theory when we invoke it in (the …

Of Presidents, Democracy, And Congress, Gillian E. Metzger

Faculty Scholarship

Put one good thing down for the Trump presidency: It inspired Peter Shane to take up the pen to detail the fallacies of unitary executive theory and other forms of aggressive presidentialism. In Democracy’s Chief Executive, Shane provides a clear and powerful account for why unitary executive theory — the claim that the president can control the entire federal bureaucracy, which Shane notes usually includes the propositions that the president can fire any subordinate executive branch officer at will and determine how any discretion delegated to the executive branch is exercised — fails. As he explains, such propositions are …

Beyond Imagination?: The January 6 Insurrection (2022), Mark C. Alexander, Michele Alexandre, Erwin S. Chemerinsky, Danielle M. Conway, Anthony W. Crowell, Garry W. Jenkins, Kevin R. Johnson, Jennifer L. Mnookin, Kimberly Mutcherson, Andrew M. Perlman, Carla D. Pratt, Theodore W. Ruger, Daniel P. Tokaji, Robert K. Vischer

Books

The United States is a nation of laws, and its Constitution and the rule of law have allowed it to confront and successfully navigate many threats to democracy throughout the nation’s complex history, including a Civil War. All of these threats challenged the nation in various ways, but never has there been a challenge to the truth of our elections like what happened on January 6, 2021.

The Insurrection represents a turning point in America’s history. In addition to the unprecedented assault on the U.S. Capitol, members of the government sought to undermine an election and supported an attack on …

A Proportionality-Based Framework For Government Regulation Of Digital Tracing Apps In Times Of Emergency, Sharon Bassan

Dickinson Law Review (2017-Present)

Times of emergency present an inherent conflict between the public interest and the preservation of individual rights. Such times require granting emergency powers to the government on behalf of the public interest and relaxing safeguards against government actions that infringe rights. The lack of theoretical framework to assess governmental decisions in times of emergency leads to a polarized and politicized discourse about potential policies, and often, to public distrust and lack of compliance.

Such a discourse was evident regarding Digital Tracing Apps (“DTAs”), which are apps installed on cellular phones to alert users that they were exposed to people who …

Dobbs V. Jackson Women’S Health And The Post-Roe Landscape, Yvonne F. Lindgren

Faculty Works

This Article examines some of the important takeaways of the Dobbs v. Jackson Women’s Health decision and the likely reverberations it will have on other areas of law and reproductive healthcare more broadly. The Article proceeds in three parts. Part I examines the majority, concurring, and dissenting opinions to consider what they reveal about the new standard of review for abortion, the shift in power among the members of the Court itself, as well as what the opinion signals might come next. Part II explores the future of abortion in a post-Roe landscape as the abortion rights movement moves from …

28 U.S.C. § 1331 Jurisdiction In The Roberts Court: A Rights-Inclusive Approach, Lumen N. Mulligan

Faculty Works

In this symposium piece, I argue that the Roberts Court, whether intentionally or not, is crafting a 28 U.S.C. § 1331 doctrine that is more solicitous of congressional control than the Supreme Court’s past body of jurisdictional law. Further, I contend that this movement toward greater congressional control is a positive step for the court. In making this argument, I review the foundations of the famous Holmes test for taking § 1331 jurisdiction and the legal positivist roots for that view. I discuss the six key Roberts Court cases that demonstrate a movement away from a simple Holmes test and …

America’S Racial Stain: The Taint Argument And The Limits Of Constitutional Law And Rhetoric, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

How should reformers respond to America’s racial stain? The problem is more complex than many imagine. Political activists usually attempt to promote change by taking advantage of a gap between current reality and a touchstone they use to measure the normative desirability of that reality. But what if the touchstone itself is infected by the reality that activists want to change?

Questions raised by this problem do not lend themselves to definitive answers, and this essay does not offer them. Instead, I suggest a variety of responses that attempt to grapple with the difficulty. I also offer tentative assessments of …

Malicious Prosecution As Undue Process: A Fourteenth Amendment Theory Of Malicious Prosecution, Timothy Tymkovich, Hayley Stillwell

Faculty Articles

Section 1983 is not itself a source of constitutional rights, but is instead merely a vehicle to vindicate constitutional rights that independently exist. But since the Supreme Court advised in dictum that actions pursuant to § 1983 should be read against the background of tort liability, § 1983 actions based on malicious prosecution have sparked disagreement over where, if anywhere, this cause of action fits within the Constitution. Most recently, the Supreme Court determined that malicious prosecution finds its constitutional home in the Fourth Amendment, so § 1983 claims require a showing of both a Fourth Amendment violation and the …

Escaping Circularity: The Fourth Amendment And Property Law, João Marinotti

Articles by Maurer Faculty

The Supreme Court’s “reasonable expectation of privacy” test under the Fourth Amendment has often been criticized as circular, and hence subjective and unpredictable. The Court is presumed to base its decisions on society’s expectations of privacy, while society’s expectations of privacy are themselves presumed to be based on the Court’s judgements. As a solution to this problem, property law has been repeatedly propounded as an allegedly independent, autonomous area of law from which the Supreme Court can glean reasonable expectations of privacy without falling back into tautological reasoning.

Such an approach presupposes that property law is not itself circular. If …

Establishment’S Political Priority To Free Exercise, Marc O. Degirolami

Scholarly Articles

Americans are beset by disagreement about the First Amendment. Progressive scholars are attacking the venerable liberal view that First Amendment rights must not be constricted to secure communal, political benefits. To prioritize free speech rights, they say, reflects an unjust inflation of individual interest over our common political commitments. These disagreements afflict the Religion Clauses as well. Critics claim that religious exemption has become more important than the values of disestablishment that define the polity. Free exercise exemption, they argue, has subordinated establishment. This Article contests these views. The fundamental rules and norms constituting the political regime—what the Article calls …

Is Partisan Gerrymandering Unconstitutional? Rethinking Rucho V. Common Cause, Barnett J. Harris

University of San Francisco Law Review

No abstract provided.

American Motherhood - A Taking, Nicole Knight

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.