Constitutional Law Commons^™

New Nation Movement Npc And Others V President Of The Republic Of South Africa And Others 2020 (6) Sa 257 (Cc), Dunia P. Zongwe

SAIPAR Case Review

This case will impact constitutional law, constitutional interpretation, and electoral law in the sense that it will likely remain for a long time the leading case on independent candidates in South Africa. This is an important question that has also been raised elsewhere, like it did recently in Namibia. In both South Africa and Namibia, the question was raised as to the desirability of independent candidates. With the decision in NNM, the Constitutional Court has enabled South Africa to join nations like Namibia in permitting independent candidates.

Baby ‘A’ And Another V Attorney General And Others [2014] Eklr, Samiselo Kayombo

SAIPAR Case Review

On or about 3rd May 2009, Baby A (1st Petitioner) was born as an intersex child.2 On 10th May 2009, Kenyatta National Hospital (2nd Respondent) conducted various medical tests on the 1st Petitioner and on one of the documents that captured the 1st Petitioner’s details, inserted a question mark ‘?’ in the column that indicated the child’s sex. The Petitioners claimed that the entry of a question mark to indicate the sex of Baby A violated the rights of the child to legal recognition, dignity and freedom from inhuman and degrading treatment. These rights were guaranteed in Section 4 of …

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Scholarship

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems—and the in-groups’ complicity in perpetuating them—directly.

This Essay suggests that it may be productive to view the Bivens regime’s rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Rules And Standards In Justice Scalia's Fourth Amendment, Robert M. Bloom, Eliza S. Walker

University of Richmond Law Review

When looking at Justice Scalia’s approach to the Fourth Amendment, most would say he was an originalist and a textualist. Justice Scalia himself would like to explain, “I’m an originalist and a textualist, not a nut.” Although originalism and textualism were often prevalent in his Fourth Amendment decisions, even more important to his decision-making was his disdain for judicial activism. To limit judicial discretion, Justice Scalia frequently opted to impose bright-line rules rather than vague standards. This is apparent not only within his jurisprudence as a whole, but also specifically in his Fourth Amendment decisions.

This Article examines Justice Scalia’s …

Fine(Ing) Wine: Challenging Direct-Shipment Licensing Fees On Dormant Commerce Clause Grounds, Alexander R. Steiger

William & Mary Law Review

This Note advocates for a constitutional challenge to state direct-to-consumer licensing fees, arguing that the licensing fees impose an undue burden on interstate commerce. To this end, this Note will apply the Supreme Court’s dormant Commerce Clause jurisprudence to state DtC wine licensing fees. Under this framework, the Court has almost always invalidated state laws that discriminate against out-of-state interests absent a showing that the law is necessary to achieve a legitimate purpose other than economic protectionism. If the state law is not found to discriminate against out-of-state interests, the Court balances the law’s burdens on interstate commerce against its …

Jury Bias Resulting In Indefinite Commitment: Expanding Procedural Protections In Svp Civil Commitment Proceedings Under The Mathews Test, Alli M. Mentch

William & Mary Law Review

Twenty states, the District of Columbia, and the federal government have enacted Sexually Violent Predator (SVP) laws that permit the civil commitment of sex offenders. Under these laws, imprisoned sex offenders serving criminal sentences are transferred to treatment facilities and held indefinitely. As one individual describes civil commitment, “It’s worse than prison. In prison I wasn’t happy, but I was content because I knew I had a release date.” An estimated 5,400 individuals are currently civilly committed under these laws.

This Note argues that such laws do not adequately protect respondents’ due process rights. To that end, this Note proposes …

Campus Free Speech In The Mirror Of Rising Anti-Semitism, Harry G. Hutchison

St. Mary's Law Journal

Abstract forthcoming.

A Scapegoat Theory Of Bivens, Katherine Mims Crocker

Faculty Publications

Some scapegoats are innocent. Some warrant blame, but not the amount they are made to bear. Either way, scapegoating can allow in-groups to sidestep social problems by casting blame onto out-groups instead of confronting such problems--and the in-groups' complicity in perpetuating them--directly.

This Essay suggests that it may be productive to view the Bivens regime's rise as countering various exercises in scapegoating and its retrenchment as constituting an exercise in scapegoating. The earlier cases can be seen as responding to social structures that have scapegoated racial, economic, and other groups through overaggressive policing, mass incarceration, and inequitable government conduct more …

Determining The Constitutionality Of Public Aid To Parochial Schools After Espinoza, Anna Bryner

Sigma: Journal of Political and International Studies

No abstract provided.

Suspect Spheres, Not Enumerated Powers: A Guide For Leaving The Lamppost, Richard Primus, Roderick M. Hills Jr.

Michigan Law Review

Despite longstanding orthodoxy, the Constitution’s enumeration of congressional powers does virtually nothing to limit federal lawmaking. That’s not because of some bizarrely persistent judicial failure to read the Constitution correctly. It’s because the enumeration of congressional powers is not a well-designed technology for limiting federal legislation. Rather than trying to make the enumeration do work that it will not do, decisionmakers should find better ways of thinking about what lawmaking should be done locally rather than nationally. This Article suggests such a rubric, one that asks not whether Congress has permission to do a certain thing but whether a certain …

Texas: A Weak Governor State, Or Is It?, Ron Beal

St. Mary's Law Journal

The current Texas Constitution was adopted in 1876 and was written after the Civil War and the Reconstruction Period when Federal troops occupied the State. The general perception is that the Federal troops used the Governor, in essence, to impose a form of dictatorship over the people. It was clearly the intent of the new constitution’s framers to create a very weak governor form of government in order to spread its powers to many independently elected officials. It provided that the state officers who were appointed by the Governor and approved by the Senate were semi-independent from the Governor by …

Gundy V. United States: How Justice Gorsuch’S Dissent And Changing Judicial Philosophy In Federal Courts May Lead To A Revived Nondelegation Doctrine And Diminish The Purpose Of The Administrative Procedure Act, Zachary Pfrang Olvera

St. Mary's Law Journal

Abstract forthcoming.

Going Rogue: The Supreme Court's Newfound Hostility To Policy-Based Bivens Claims, Joanna C. Schwartz, Alexander A. Reinert, James E. Pfander

Articles

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate.

This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an …

Child Entertainers And Their Limited Protections: A Call For An Interstate Compact, Tabetha Bennett

Child and Family Law Journal

No abstract provided.

Nationalism, Populism, Religion, And The Quest To Reframe Fundamental Rights, Susanna Mancini, Michel Rosenfeld

Cardozo Law Review

The article examines how nationalism and populism have increasingly utilized religion to challenge the principles of institutional secularism, which is foundational to liberal constitutional democracies. It argues that these forces exploit the interplay between religion and secularism to undermine pluralism and promote exclusionary agendas. The analysis highlights the tension between institutional secularism, which seeks to separate state and religion, and the contemporary repoliticization of religion, which threatens the pluralistic ethos essential to liberal constitutionalism.

"And The Oscar Goes To . . .": Why The Academy Awards May Create Antitrust Drama With Proposed Eligibility Rule Changes, Armando Marin Iii

Cardozo Law Review

No abstract provided.

"What Makes You Think You Can Do That?": How Venue Restrictions Prevent Access To Abortion For Minors In Arkansas, Bella Mancini Pori

Cardozo Law Review

No abstract provided.

United States V. Arthrex Inc.: Clarifying Appointments Clause Requirements For Administrative Judges, Albert Barkan

Duke Journal of Constitutional Law & Public Policy Sidebar

Article II of the United States Constitution details the methods by which presidential subordinate officers must be appointed. Despite its presence in the Constitution’s original text, the Appointments Clause remains ambiguous. The Clause provides different appointment processes for principal and “inferior officers,” but does not distinguish between these officers’ functions. In United States v. Arthrex, Inc., the Supreme Court must clarify the relationship between an Executive officer’s responsibilities and their appointment process.

Political Legitimacy On College Campuses, Taylor Holtman

Honors Projects

The government system is looked to have an influential impact on a person’s life and the ability to trust the legal system is extremely important to have a working democracy. Changes need to be made in order to make the minorities feel like they belong. The history of segregation and descrimigation needs to end and the government needs to enact policies to make the minorities trust again in the system. College students have felt the pressure of social media in the wrongful treatment of minorities and seeing these things happen first hand. With the rise of technology these problems will …

Fitbit Data And The Fourth Amendment: Why The Collection Of Data From A Fitbit Constitutes A Search And Should Require A Warrant In Light Of Carpenter V. United States, Alxis Rodis

William & Mary Bill of Rights Journal

No abstract provided.