Constitutional Law Commons^™

The Constitutional Future Of Trademark Tarnishment, Jake Linford

William & Mary Bill of Rights Journal

This Article is the first to examine whether trademark anti-tarnishment laws should be deemed constitutional after the Supreme Court’s 2024 decision in Vidal v. Elster. Anti-tarnishment laws protect famous brands from uses that could damage their reputation, even when consumers are not confused about who makes the tarnishing product.

The Supreme Court recently declared some trademark registration restrictions unconstitutional in Matal v. Tam and Iancu v. Brunetti. In these cases, the Court struck down federal laws that prevented registration of “disparaging” trademarks and “scandalous or immoral” trademarks because they categorized the registration bars as unconstitutional viewpoint-based restrictions. These …

The End Of The List: Constructive Waiver Of The Right To Counsel In Virginia, Thomas C. Squires

William & Mary Bill of Rights Journal

This Note will first give a general background on the right to counsel in the United States that stems from the Sixth Amendment of the U.S. Constitution, with a focus on the right as applied in the Commonwealth of Virginia. A brief examination of the specific Virginia Code section that is relevant when discussing this issue will follow. This code section and its deficiencies collectively present potential threats to defendants’ right to counsel. An evaluation of federal case law and Virginia case law on constructive waiver will follow. This Note will conclude by offering potential solutions to head the looming …

Fifty Ways To Leave Your Lover: Using State Constitutions To Escape The Dead Hand Of Article V, Meg Penrose

Faculty Scholarship

Thomas Jefferson believed that “the earth always belongs to the living generation.” His constitutional approach would empower twenty-first century Americans to decide twenty-first century problems regularly determined by the United States Supreme Court. Article V, the formal method for constitutional change, seemingly relegates these decisions to the Supreme Court because amending the federal Constitution is nearly impossible.

Unfortunately, our fixation on federal constitutional law often eclipses the power of state constitutional law. State constitutions balance our relatively static federal Constitution with responsive state governments. There is no need to debate what the Framers thought about modern issues when Americans can …

Court-Stripping, Court-Packing, And Court Defying: Revisiting The Supreme Court’S Essential Functions, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The "essential functions thesis" is one of the most famous structural arguments in the field of federal courts. The thesis, which has been endorsed by a number of prominent scholars and the executive branch, posits that there are implicit, structural limits on Congress's authority to "strip" the Supreme Court of its appellate jurisdiction. Court-stripping, the thesis contends, is not allowed if it would undermine the essential functions of the Court-in particular, maintaining the supremacy and uniformity of federal law. In this Article, we revisit that thesis with three goals in mind. First, we aim to show that the structural arguments …

The Final Edit: Strategies For Legislative Success Of The Press Act And Strengthening The Protections Of Freedom Of The Press, Tess Theisen

Barry Law Review

No abstract provided.

Patient Privacy In The Digital Age: Reimagining Health Data Laws To Protect Patients’ Constitutional Rights, Adriana Almeida Mehtani

Barry Law Review

No abstract provided.

The Establishment Clause And The Ten Commandments Post-Lemon, Richard Kato

Northern Illinois University Law Review

Louisiana recently passed a law requiring that a display of the Ten Commandments be placed in all public school classrooms in the state. The law is currently facing an Establishment Clause challenge in the Fifth Circuit. This Comment argues that Louisiana’s Ten Commandments law does not violate the original public meaning of the Establishment Clause. The history of the Establishment Clause suggests that noncoercive support of religion was widely accepted before and up through the time of the First Amendment’s enactment. Following Kennedy v. Bremerton School District’s abandonment of the Lemon v. Kurtzman test, the Ten Commandments law must …

The Unitary Executive And The Federal Reserve, Lev Menand

Fordham Law Review

The U.S. Supreme Court may soon embrace an interpretation of the U.S. Constitution that would significantly expand the power of the president over federal administrators and invalidate key provisions in dozens of federal statutes. A critical question is whether this interpretation—known as the unitary executive theory (UET)—would also render unconstitutional central bank independence (CBI), an arrangement where a country’s monetary policy is formulated by a semiautonomous body of experts insulated from partisan political pressure. Several justices have suggested that it would not, and a growing scholarly literature has proposed ways for the Court to distinguish the country’s central banking apparatus …

The Supreme Court, Regime Politics, And Federalism: From The New Deal To The Trump Era, J. Mitchell Pickerill, Lilly A. Pickerill

Northern Illinois University Law Review

In the 1990s, the conservative majority on the Rehnquist Court championed state sovereignty and autonomy in a series of cases some commentators dubbed a “federalism revolution.” The Supreme Court crafted constitutional doctrines under the Commerce Clause, Tenth and Eleventh Amendments, and Section Five of the Fourteenth Amendment that limited federal powers while protecting or bolstering state powers. The Court’s doctrines in those cases diverged from its approach to constitutional federalism since the New Deal in the 1930s, but it tracked with the conservative Republican political agenda promoting a “new federalism” going back to Presidents Nixon and Reagan. However, as the …

Beyond Skrmetti: A Constitutional Case For Gender-Affirming Care, Mateo-Luis A. Planas, Evan Gerstmann

Honors Thesis

In 2025, roughly 2.1 million adults in America identify as transgender, making up around 1% of the country’s total population. Despite this, the transgender identity has become a focus of political debates and made its way onto the U.S. Supreme Court’s docket in U.S. v. Skrmetti. The issue is not whether transgender people exist, but rather, how they ought to exist legally: if and when one can access medical care to pursue a gender transition. While many American doctors agree that these treatments are life-saving, since 2021, a slew of legislation has limited access for adults 18-21 (AMA, 2021). This …

A Thumb On The Scales: How The Court Creates Presumptions To Change The Law, John Leubsdorf

Northern Illinois University Law Review

In four major recent decisions, the Supreme Court deployed the same technique: it created a presumption in favor of the result it preferred and then concluded that the losing party could not rebut that presumption. This invocation of presumptions enabled the majority to reach the result it preferred, while maintaining the appearance of balance and leaving open the possibility of different rulings in future cases. The asserted grounds for erecting the Court’s presumptions-notably history and governmental structure-likewise combined the appearance of objectivity with the reality of choice. Judicial presumptions are not new, but the current Court deploys them on a …

Foreword: The Universities Will Not Save Us, Jonathan Feingold

Faculty Scholarship

In the spring of 2024, thousands of university students joined campus protests advocating for Palestinian human rights and calling on their institutions to divest from Israel’s military assault on Gaza.1 The student action echoed historical protest movements that universities routinely celebrate in their brochures, monuments, and signage.2 Yet rather than embrace their students’ principled activism, universities across the country deployed militarized force against their own communities.3 From elite Ivies in the northeast, to large privates in the Midwest, to state schools in Texas and California, administrators greeted peaceful protest with discipline, smears, and physical violence.

Unconstitutional Cruelty, Michael R. Ulrich

William & Mary Law Review

Despite the long history of transgender people and transgender care, state legislatures suddenly rushed to pass a wave of bans on gender-affirming medical care for trans youth over a three-year period beginning in 2021—an alarming surge within a flurry of legal attacks on the transgender community. In analyzing the constitutionality of these bans, courts and scholars have focused their attention on how to characterize the nature of the rights implicated, and therefore the level of scrutiny warranted. This focus reacts to, and often follows, the current Supreme Court majority’s approach to questions about the rights of historically oppressed and marginalized …

Reorganizing The Administrative State: Executive Ambition And Legislative Constraint, Jordan Graber

Fordham Law Review

Beginning in the 1930s, Congress enacted a series of statutes granting presidents the authority to initiate reorganizations of the administrative state. Under these reorganization statutes, the president determined any necessary changes in agency organization and submitted a reorganization proposal to Congress, which could approve or reject the plan. Over the next fifty years, the president and Congress worked cooperatively to promote the effective and efficient functioning of the administrative state.

Despite the successful reorganization initiatives undertaken pursuant to these statutes, Congress has not conferred reorganization authority on any president in the last four decades. As a result, the organization of …

Rethinking The Scope Of State Power: Territorial Jurisdiction, Popular Sovereignty, And Extraterritorial Legislation, Jeffrey Schmitt

William & Mary Law Review

The Supreme Court applies the territorial framework of international law to resolve disputes over the reach of state power. Under this framework, a state’s power is coterminous with its borders, such that a state’s regulatory power within its territory is limited only by federal law. The Court recently used this framework to overrule an obscure line of Dormant Commerce Clause cases that held that a state regulation of local conduct could have impermissible extraterritorial effects.

This Article argues that the territorial model of state power from international law does not account for the division of sovereignty within our federal system. …

Statutory Backups For Endangered Constitutional Rights, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns the phenomenon of “statutory backup rights,” or statutes that provide protections parallel to constitutional rights that are believed to be at risk of judicial abrogation. Proposals for backup rights gained attention in the aftermath of the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, which not only eliminated the constitutional right to abortion but called into question some other constitutional rights as well. Shortly after Dobbs, Congress enacted a limited statutory backup for same-sex marriage. States have created backup rights across a range of topics, some of which appeal mostly to those …

Expressive Association At Work, Elizabeth Sepper, James D. Nelson, Charlotte Garden

Michigan Law Review

Do employers have constitutional rights of expressive association? Two decades ago, in Boy Scouts of America v. Dale, the Supreme Court held that a state law prohibiting discrimination based on sexual orientation could not be applied to a membership organization that wished to exclude a gay leader. Today, courts face a rising tide of claims from employers, who argue that Dale constitutionally insulates their hiring and firing decisions from antidiscrimination law. A narrow majority of courts have denied such claims, holding that Dale does not apply at work. Increasingly, however, courts are siding with these employers, eliding any distinction …

An Analysis Of Global And Regional Human Rights Standards On Gender-Based Violence, Tamar Ezer, R. Denisse Córdova Montes

Seattle Journal for Social Justice

No abstract provided.

A Concerted Effort: How The Roberts Court Demolished Anti-Gerrymandering Protections, Samuel Ogden

Seattle Journal for Social Justice

No abstract provided.

The Zoom Dock Is Worse Than A Cage: Remote Appearances From Jail Are Unconstitutional In Washington, Michael Mactaggert, Jeremiah Noonan

Seattle Journal for Social Justice

No abstract provided.