Constitutional Law Commons^™

Enforcement Of The Reconstruction Amendments, Alexander Tsesis

Faculty Publications & Other Works

This Article systematically analyzes the delicate balance of congressional and judicial authority granted by the Reconstruction Amendments. The Thirteenth, Fourteenth, and Fifteenth Amendments vest Congress with powers to enforce civil rights, equal treatment, and civic participation. Their reach extends significantly beyond the Rehnquist and Roberts Courts’ narrow construction of congressional authority. In recent years, the Court has struck down laws that helped secure voter rights, protect religious liberties, and punish age or disability discrimination. Those holdings encroach on the amendments’ allocated powers of enforcement.

Textual, structural, historical, and normative analyses provide profound insights into the appropriate roles of the Supreme …

The Carbon Price Equivalent: A Metric For Comparing Climate Change Mitigation Efforts Across Jurisdictions, Gabriel Weil

Dickinson Law Review (2017-Present)

Climate change presents a global commons problem: Emissions reductions on the scale needed to meet global targets do not pass a domestic cost-benefit test in most countries. To give national governments ample incentive to pursue deep decarbonization, mutual interstate coercion will be necessary. Many proposed tools of coercive climate diplomacy would require a onedimensional metric for comparing the stringency of climate change mitigation policy packages across jurisdictions. This article proposes and defends such a metric: the carbon price equivalent. There is substantial variation in the set of climate change mitigation policy instruments implemented by different countries. Nonetheless, the consequences of …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Dickinson Law Review (2017-Present)

This article enters into the modern debate between “consti- tutional departmentalists”—who contend that the executive and legislative branches share constitutional interpretive authority with the courts—and what are sometimes called “judicial supremacists.” After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas—popular sovereignty and the separation of powers—which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, …

The People's Court: On The Intellectual Origins Of American Judicial Power, Ian C. Bartrum

Scholarly Works

This article enters into the modern debate between "constitutional departmentalists"-who contend that the executive and legislative branches share constitutional interpretive authority with the courts-and what are sometimes called "judicial supremacists." After exploring the relevant history of political ideas, I join the modern minority of voices in the latter camp.

This is an intellectual history of two evolving political ideas-popular sovereignty and the separation of powers-which merged in the making of American judicial power, and I argue we can only understand the structural function of judicial review by bringing these ideas together into an integrated whole. Or, put another way, we …

Distributed Federalism: The Transformation Of Younger, Anne R. Traum

Scholarly Works

For decades federal courts have remained mostly off limits to civil rights cases challenging the constitutionality of state criminal proceedings. Younger abstention, which requires federal courts to abstain from suits challenging the constitutionality of pending state prosecutions, has blocked plaintiffs from bringing meritorious civil rights cases and insulated local officials and federal courts from having to defend against or decide them. Younger’s reach is broad. It has forced political protestors (from the Vietnam era to Black Lives Matter) to challenge the constitutionality of their arrests and prosecutions within their state criminal proceedings. The doctrine also has made it difficult to …

School “Safety” Measures Jump Constitutional Guardrails, Maryam Ahranjani

Scholarly Works

In the wake of George Floyd's murder and efforts to achieve racial justice through systemic reform, this Article argues that widespread "security" measures in public schools, including embedded law enforcement officers, jump constitutional guardrails. These measures must be rethought in light of their negative impact on all children and in favor of more effective-and constitutionally compliant-alternatives to promote school safety. The Black Lives Matter, #DefundthePolice, #abolishthepolice, and #DefundSchoolPolice movements shine a timely and bright spotlight on how the prisonization of public schools leads to the mistreatment of children, particularly children with disabilities, boys, Black and brown children, and low-income children. …

A Proper Burial, Robert L. Tsai

Faculty Scholarship

This is an invited response to Professor Mark Killenbeck's article, "Sober Second Thoughts? Korematsu Reconsidered." In his contrarian piece, Killenbeck argues that Korematsu was defensible, albeit on narrow grounds: it advanced the development of strict scrutiny. He goes on to argue that comparisons between the internment case and the Supreme Court's Muslim travel ban case are overwrought and that the latter case, too, is defensible. I'm not convinced. First, to say that a ruling is defensible is not saying much; far better for critiques to be tethered to sterner standards. Second, after all these years, Korematsu remains a poorly reasoned …

The Evolution And Jurisprudence Of The Foreign Intelligence Surveillance Court And Foreign Intelligence Surveillance Court Of Review, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The past eight years have witnessed an explosion in the number of publicly-available opinions and orders issued by the Foreign Intelligence Surveillance Court and Foreign Intelligence Surveillance Court of Review. From only six opinions in the public domain 1978–2012, by early 2021, eighty-eight opinions had been released. The sharp departure is even more pronounced in relation to orders: from only one order declassified during 1978–2012, since 2013, 288 have been formally released. These documents highlight how the courts’s roles have evolved since 2004 and reveal four key areas that dominate the courts’ jurisprudence: its position as a specialized, Article III …

From Parchment To Dust: The Case For Constitutional Skepticism (Introduction), Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

This is the introduction to a new book entitled "From Parchment to Dust: The Case for Constitutional Skepticism." The introduction sets out a preliminary case for constitutional skepticism and outlines the arguments contained in the rest of the book.

America’S Presidential Crisis Of Legitimacy: How The Electoral College Became Obsolete And How We Can Fix It, Julia Rose Foodman

Scripps Senior Theses

The goal of this thesis is to critique the current American Presidential electoral system, the Electoral College, and to show what an alternative could potentially mean for the American people. This paper seeks to answer the following questions: What are the main arguments for the Electoral College, why are they troubling, and how can we mend American Presidential elections for the greater purposes of political equality, democracy, and freedom? To do so, core arguments made by conservative pundits in favor of the Electoral College are outlined in order to bring attention to their logical, political, and moral inconsistencies. The inequalities …

A Plumber With Words: Seeking Constitutional Responsibility And An End To The Little Sisters Problem, Alison M. Latimer, Benjamin L. Berger

Articles & Book Chapters

Joe Arvay sometimes described his work as a lawyer as being a “plumber with words”. We think what he meant was that he strived to offer tangible solutions to concrete problems. In other words, while it’s good to know what the law says, and what legal enthusiasts think about how the law operates, Charterbreaches affect real people, most of them not lawyers. It is the lived experience of the law that ultimately ought to draw our concern, energy, and talents.If you want to bend the law towards justice, you need to focus remedial attention on what the law actually …

No, The Firing Squad Is Not Better Than Lethal Injection: A Response To Stephanie Moran’S A Modest Proposal, Michael Conklin

Seattle University Law Review

In the article A Modest Proposal: The Federal Government Should Use Firing Squads to Execute Federal Death Row Inmates, Stephanie Moran argues that the firing squad is the only execution method that meets the requirements of the Eighth Amendment. In order to make her case, Moran unjustifiably overstates the negative aspects of lethal injection while understating the negative aspects of firing squads. The entire piece is predicated upon assumptions that are not only unsupported by the evidence but often directly refuted by the evidence. This Essay critically analyzes Moran’s claims regarding the alleged advantages of the firing squad over …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Book Review - The Tenth Justice: Judicial Appointments, Marc Nadon, And The Supreme Court Act Reference By Carissima Mathen & Michael Plaxton, Jamie Cameron

Articles & Book Chapters

This short book review discusses The Tenth Justice: Judicial Appointments, Marc Nadon, and the Supreme Court Act Reference, by Professors Mathen and Plaxton. The “tenth justice” is Justice Marc Nadon, who was appointed from the Federal Court of Appeal to the Supreme Court of Canada. The appointment inspired the Supreme Court Reference and conclusion by a majority of the Court that their colleague – as Nadon was already sworn in – was not eligible to be appointed to one of Quebec’s three positions on the Court. The Tenth Justice offers an excellent, high-level primer on Justice Nadon’s appointment and …

Passports Of Privilege, Seema Mohapatra

American University Law Review

All Americans sixteen and older are now eligible to receive a COVID-19 vaccination. However, many will not be able to access such vaccinations due to their work situation, health status, and inaccessible vaccination sites. Some have suggested that the use of vaccine passports, credentials used to gain access to places and countries by showing proof of vaccinations, may encourage people to get vaccinated. The COVID-19 pandemic has laid bare deep inequities in our society, and this Article argues that the use of vaccine passports would further exacerbate such chasms. Part I of this Article describes the differences between immunity passports …

Property Rights: Fiercely Contested, Strongly Guarded, And Continually Defended. How The Supreme Court's Decision In Cedar Point Emphasized The Court's Devotion To Private Property Rights, Sarah Haddon

American University Law Review

In 1975, California’s Agricultural Labor Relations Board (the “Board”) enacted a regulation allowing union organizers to access agricultural employers’ private properties “for the purpose of meeting and talking with employees and soliciting their support” (the “access regulation”). The access regulation does not require the union organizers to obtain consent before entering employers’ properties; instead, union organizers must only file a “written notice of intention to take access.” The notice provides the union organizers access to an employer’s property for three hours a day up to 120 days each year during the hour before the workday, during lunch, and after the …

Proffitt V. Florida: Distorting Death, Corinna Lain

Law Faculty Publications

This essay, Chapter 7 in Painting Constitutional Law, examines Xavier Cortada’s depiction of Proffitt v. Florida, the 1976 decision that approved Florida’s guided discretion statute after Furman v. Georgia had invalidated the death penalty in 1972. Cortada’s depiction is a fantastical piece, a piece that captures the horror of death by electrocution set against two columns of ominous looking Roman numerals. The Roman numerals represent the mechanical imposition of death — the formulaic approach to death penalty decision-making that tells sentencers to simply add up the columns of aggravating and mitigating circumstances and see where the balance lies. Cortada resists …

Presidents And The U.S. Constitution: The Executive’S Role In Interpreting The Supreme Law Of The Land, Mitchell Scacchi

Honors Theses and Capstones

In 1832, President Andrew Jackson issued a veto message claiming the same duty as the Supreme Court to interpret the U.S. Constitution. Do modern presidents exercise the principal role in interpreting the U.S. Constitution that President Jackson claimed was their duty, and, if so, in what ways do they choose to articulate their interpretations? The hypothesis is that modern presidents have exercised a principal role in interpreting the U.S. Constitution similar to the interpretative duty expressed by President Jackson, and they perform this duty, in part, through the issuance of veto messages and signing statements. After a content analysis of …

Structural Deregulation, Jody Freeman, Sharon Jacobs

Publications

Modern critics of the administrative state portray agencies as omnipotent behemoths, invested with vast delegated powers and largely unaccountable to the political branches of government. This picture, we argue, understates agency vulnerability to an increasingly powerful presidency. One source of presidential control over agencies in particular has been overlooked: the systematic undermining of an agency’s ability to execute its statutory mandate. This strategy, which we call “structural deregulation,” is a dangerous and underappreciated aspect of what then-Professor, now-Justice Elena Kagan termed “presidential administration.”

Structural deregulation attacks the core capacities of the bureaucracy. The phenomenon encompasses such practices as leaving agencies …

Giving Joseph Hearings Their Due: How To Ensure That Joseph Hearings Pass Due Process Muster, Amy Greer

Roger Williams University Law Review

No abstract provided.