Constitutional Law Commons^™

Acid Mine Drainage--A Review Of The Barnes & Tucker Case--Is The Requirement To Treat A "Taking" Under The Fifth Or Fourteenth Amendment?, Linda M. Stowers

Journal of Natural Resources & Environmental Law

No abstract provided.

Taylor V. Riojas: Anatomy Of A Supreme Court Intervention That Should Not Have Been Necessary, Zamir Ben-Dan

Nevada Law Journal Forum

In September 2013, an inmate in a Texas prison allegedly spent six days in two uninhabitable cells. One cell was covered in “massive amounts of feces;” the other cell was freezing cold and lacked a sink, a bunk and a toilet, containing only a clogged floor drain for him to relieve himself. Confinement under these abominable conditions were plainly illegal under the Eighth Amendment of the United States Constitution. Yet, two lower federal courts found, for slightly different reasons, that the inmate had no actionable constitutional claim and that the defendants were entitled to qualified immunity. Both decisions displayed a …

Compelling Suspects To Unlock Their Phones: Recommendations For Prosecutors And Law Enforcement, Carissa A. Uresk

BYU Law Review

No abstract provided.

"De-Americanization" During The Trump Administration: Derivative Citizenship And Deceased Parents In The United States, Katheryn J. Maldonado

William & Mary Journal of Race, Gender, and Social Justice

The Trump Administration’s war on immigration will be marked in history as one replete with white supremacy and terror. Much attention has been focused in the realm of undocumented immigrants, detention centers, and family separations because of the pervasiveness of those issues and the gravity of the human rights violations occurring in the United States. However, little focus has been given to immigrants who are lawful permanent residents or naturalized citizens at risk of denaturalization and deprivation of their constitutional rights. This Note highlights the effects of the Trump Administration’s war on immigration on citizens and green card holders in …

Influence Of The Federal Government On The Diffusion Of Victims' Rights State Constitutional Amendments, Vicki Rose Jeffries-Bilton

Dissertations and Theses

This dissertation examines the factors associated with the diffusion of state constitutional victims' rights amendments across the United States in the twenty-year period of 1982 to 2001 to understand the impact of the federal government on state constitutional change. Because each branch of the federal government took prominent actions in the area of victims' rights on the national policy stage during this era, it is important to know whether these actions influenced policy change at the state level. This dissertation examines whether one form of prominent federal action, the president's use of rhetoric to acknowledge support for victims' rights, influenced …

False Positivism: The Failure Of The Newest Originalism, Guha Krishnamurthi

BYU Law Review

Originalism is a juggernaut. It pervades our constitutional discourse and it has become a fort and font of constitutional legitimacy. A number of our most prominent jurists and legal thinkers are self-described originalists and, in myriad constitutional cases, originalist argumentation demands our serious attention. Notwithstanding, originalists have struggled to forge any meaningful consensus on the most foundational issues. Among the serious problems, originalist theories have each struggled to navigate between preserving core features and fixed stars of our law and remaining a distinctive theory with fidelity to "original meaning."The newest effort in this struggle is the so called "positive" turn …

Lawmakers, Wolf Need To Clarify Pa.’S Mail-In Voting Law Before 2022, Bruce Ledewitz

Newspaper Columns

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

March 9, 2021: The Future Of Mail-In Voting In Pennsylvania--The Week's Column, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Future of Mail-in Voting in Pennsylvania--the week's column“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Handle With Care: Constitutional Standards For Information Sharing In Medical-Correctional Transition, Andrew R. Hayes

Duke Journal of Constitutional Law & Public Policy Sidebar

Correctional institutions have an Eighth Amendment obligation to provide healthcare to inmates. In practice though, jails and prisons struggle to provide adequate care to millions of incarcerated individuals, roughly half of whom have at least one chronic health condition. As a result, harsh conditions of confinement routinely threaten the health of inmates who require specific medical accommodations. Recognizing this risk, the courts hold corrections institutions liable for harm when government officials are “deliberately indifferent” to prisoner medical needs.

Beginning with the HITECH Act of 2009, mainstream medicine embraced tools that eliminate gaps in medical communication. Today, most Americans rely on …

Exhausted And Confused: How Fry Complicated Obtaining Relief For Disabled Students, Chris Ricigliano

Duke Journal of Constitutional Law & Public Policy Sidebar

Congress guaranteed the right of disabled children to a Free Appropriate Public Education through legislation. The Individuals with Disabilities Education Act provides a mechanism for receiving redress when those educational services are denied. Before suing, representatives of disabled children must exhaust their claims administratively according to the procedures set by the states. However, how exactly to tell which kinds of wrongs are the denial of an education and subject to exhaustion has been a subject of much confusion. The Supreme Court in Fry v. Napoleon Community Schools tried to set up a framework for when exhaustion is required versus when …

Constitutional Validity Of The Kentucky Unmined Coal Tax: Gillis V. Yount, Robin L. Fields

Journal of Natural Resources & Environmental Law

No abstract provided.

March 6, 2021: A Hallowed Secularism Way Of Life, Bruce Ledewitz

Hallowed Secularism

Blog post, “A Hallowed Secularism Way of Life“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Hybrid Federalism And The Employee Right To Disconnect, Paul M. Secunda

Pepperdine Law Review

The federal Occupational Safety and Health Administration (OSHA) administers specific workplace and health standards that generally and expressly preempt the entire field of workplace safety and health law. However, where such federal OSHA standards do not exist or states have developed their own approved OSHA plans, OSHA does not merely set a regulatory floor either. A type of “hybrid federalism” has been established, meaning a strong federal-based field preemption approach to labor and employment law issues, but tied to a conflict preemption approach. Applying this hybrid preemption approach to the employee right to disconnect problem provides the best opportunity to …

A Defense Of The Electoral College In The Age Of Trump, John Yoo

Pepperdine Law Review

In the aftermath of the 2016 U.S. Presidential Election, where Donald J. Trump lost the popular vote by nearly 3 million votes but still secured victory in the Electoral College, renewed efforts to delegitimize or abolish the Electoral College system have surfaced. Critics, calling for a direct national vote for President, attacked the legitimacy of the election and decried the Constitution’s method of presidential selection as antiquated and undemocratic. Some legal scholars even suggested that the Electoral College must be abolished to disentangle it from America’s racist past and history of slavery. Recently, though, reformers in several States have banded …

Our Campaign Finance Nationalism, Eugene D. Mazo

Pepperdine Law Review

Campaign finance is the one area of election law that is most difficult to square with federalism. While voting has a strong federalism component—elections are run by the states and our elected officials represent concrete geographical districts—our campaign finance system, which is rooted in the First Amendment, almost entirely sidesteps the boundaries of American federalism. In so doing, our campaign finance system creates a tenuous connection between a lawmaker’s constituents, or the people who elect him, and the contributors who provide the majority of his campaign cash. The recent explosion of outside spending in American elections by wealthy individuals and …

Federalism Limits On Non-Article Iii Adjudication, F. Andrew Hessick

Pepperdine Law Review

Although Article III of the Constitution vests the federal judicial power in the Article III courts, the Supreme Court has created a patchwork of exceptions permitting non-Article III tribunals to adjudicate various disputes. In doing so, the Court has focused on the separation of powers, concluding that these non-Article III adjudications do not unduly infringe on the judicial power of the Article III courts. But separation of powers is not the only consideration relevant to the lawfulness of non-Article III adjudication. Article I adjudications also implicate federalism. Permitting Article I tribunals threatens the role of state courts by expanding federal …

Property Convergence In Takings Law, Maureen E. Brady

Pepperdine Law Review

Although one of the key questions in a federal system is how authority should be allocated between the state and national governments, property law has rarely generated serious controversy on this front. Instead, property entitlements and the rules governing resource use have typically been the province of state and local actors. The Supreme Court has repeatedly emphasized that property rights are created at the state level. And while federal regulations—for example, environmental regulations—certainly limit property rights, state and local land-use laws and state nuisance and trespass rules serve as major constraints on property’s use and enjoyment. This feature of property …

The Past, Present, And Future Of Federalism: A Symposium Introduction, Derek T. Muller

Pepperdine Law Review

No abstract provided.

Federal Constitutional Limitations On The Regulation Of Coal Mining Activities, Cyril A. Fox Jr.

Journal of Natural Resources & Environmental Law

No abstract provided.

“Drive-By” Jurisdiction: Congressional Oversight In Court, Daniel Epstein

Pepperdine Law Review

On July 9, 2020, in Trump v. Mazars USA, LLP and Trump v. Deutsche Bank AG, the Supreme Court held that the lower courts did not adequately consider the separation of powers concerns attendant to congressional subpoenas for presidential information. Given that the question presented in Mazars concerned whether Congress had a legitimate legislative purpose in subpoenaing the President’s personal records, the Supreme Court’s decision is anything but a model of clarity. The Court simultaneously opined that disputes “involving nonprivileged, private information” “do[ ] not implicate sensitive Executive Branch deliberations” while claiming “congressional subpoenas for the President’s information unavoidably pit …