Constitutional Law Commons^™

Mahanoy Area School District V. B.L.: The Court Protects Student Social Media But Leaves Unanswered Questions, David L. Hudson Jr.

Law Faculty Scholarship

In Mahanoy Area School District v. B.L.: The Court Protects Student Social Media but Leaves Unanswered Questions, published in the Cato Supreme Court Review, David L. Hudson Jr. analyzes the U.S. Supreme Court’s landmark decision addressing the scope of public schools’ authority over off-campus student speech on social media. Situating Mahanoy within the Court’s broader K–12 student speech jurisprudence—from Barnette and Tinker to Fraser, Hazelwood, and Morse—the Article explains how the Court declined to adopt a categorical rule excluding off-campus speech from regulation while nevertheless ruling in favor of the student. The majority recognized diminished school …

Climate Disruption In Canadian Constitutional Law: References Re Greenhouse Gas Pollution Pricing Act, Jocelyn Stacey

All Faculty Publications

This analysis considers the Supreme Court of Canada’s decision in References re Greenhouse Gas Pollution Pricing Act, 2021 SCC 11, in which a majority of the Court upheld as constitutional national carbon pricing legislation. The decision presents an excellent illustration of the legally disruptive nature of climate change. Illustrating that nothing is static in a climate disrupted world—including constitutional law—this article identifies three shifts the Court makes in relation to climate disruption. First, the decision represents a shift away from climate denialism toward a judicial willingness to confront the environmental, social and legal implications of climate change for Canada. Second, …

The Long History Of Feminist Legal Theory, Tracy Thomas

Con Law Center Articles and Publications

This chapter challenges the conventional idea that feminist legal theory began in the 1970s. The advent of legal feminism is usually placed in the second wave feminist movement, birthed by the political activism of the women’s liberation movement and nurtured by the intellectual leadership of women scholars newly entering legal academia. However, legal feminism has a much longer history, going back more than a century earlier. While the term “feminist” was not used in the United States until the 1910s, the foundations of feminist legal theory were first conceptualized as early as 1848 and developed over the next one hundred …

The Jurisprudence Of The First Woman Judge, Florence Allen: Challenging The Myth Of Women Judging Differently, Tracy Thomas

Con Law Center Articles and Publications

A key question for legal scholars and political scientists is whether women jurists judge differently than men. Some studies have suggested that women judges are more likely to support plaintiffs in sexual harassment, employment, and immigration cases. Other studies conclude that women are more likely to vote liberally in death penalty and obscenity cases, and more likely to convince their male colleagues to join a liberal opinion. Yet other studies have found little evidence that women judge differently from men.

This article explores the jurisprudence of the first woman judge, Judge Florence Allen, to test these claims of gender difference …

Reclaiming The Long History Of The "Irrelevant" Nineteenth Amendment For Gender Equality, Tracy Thomas

Con Law Center Articles and Publications

The Nineteenth Amendment has been called an “irrelevant” amendment. The women’s suffrage amendment has been deemed insignificant as a constitutional authority, reduced to a historical footnote. In the Supreme Court canon, it has been diminished as a text that “merely gives the vote to women.” With the accomplishment of that simple task, the amendment has been assumed to offer little guidance to modern constitutional analysis or gender equality. The Nineteenth Amendment has become a “constitutional orphan,” disconnected from its historical origins and precedential place in constitutional jurisprudence.

This constricting view of the Nineteenth Amendment ignores the structural implications and significant …

Rulifying Reasonable Expectations: Why Judicial Tests, Not Originalism, Create A More Determinate Fourth Amendment, Michael Gentithes

Con Law Center Articles and Publications

For decades, commentators have decried the Supreme Court’s Fourth Amendment search jurisprudence as a hopelessly confusing jumble. Critics save their harshest barbs for the judicially created “reasonable expectations of privacy” test, suggesting that it provides little guidance and leaves search cases open to wide judicial discretion. Motivated by such critiques, several Justices have recently claimed that an originalist approach could replace the reasonable expectations test, limit judicial discretion, and clarify the Fourth Amendment’s meaning.

This Article provides a comprehensive defense of the reasonable expectations test against originalist calls to abandon it. It notes two flaws in the originalist response. First, …

Squaring A Circle: Advice And Consent, Faithful Execution, And The Vacancies Reform Act, Ronald J. Krotoszynski, Atticus Deprospo

Georgia Law Review

Successive presidents have interpreted the Federal
Vacancies Reform Act of 1998 to authorize the appointment of
principal officers on a temporary basis. Despite serving in a
mere “acting” capacity and without the Senate’s approval, these
acting principal officers nevertheless wield the full powers of
the office. The best argument in favor of this constitutionally
dubious practice is that an acting principal officer is not really
a “principal officer” under the U.S. Constitution because she
only serves for a limited period. Although not facially specious,
this claim elides the most important legal fact: an acting
principal officer may exercise the full …

Supreme Court Precedent And The Politics Of Repudiation, Robert L. Tsai

Faculty Scholarship

This is an invited essay that will appear in a book titled "Law's Infamy," edited by Austin Sarat as part of the Amherst Series on Law, Jurisprudence, and Social Thought. Every legal order that aspires to be called just is held together by not only principles of justice but also archetypes of morally reprehensible outcomes, and villains as well as heroes. Chief Justice Roger Taney, who believed himself to be a hero solving the great moral question of slavery in the Dred Scott case, is today detested for trying to impose a racist, slaveholding vision of the Constitution upon America. …

Legacies Of Pragmatism, Robert L. Tsai

Faculty Scholarship

Pragmatism has triumphed in the law by becoming all things to all people—or has it? This essay, prepared for a symposium at Drake University Law School's Constitutional Law Center, examines the future of pragmatism in constitutional thought. First, I revisit the work of William James to recover the ideal disposition of a pragmatist decision maker. Second, I analyze pragmatism's impact on constitutional theory from Richard Posner to Cass Sunstein, from Philip Bobbitt to Willy Forbath and Joey Fishkin. I show that pragmatism lives on in constitutional theories that don't self-consciously characterize themselves in such terms. I also contend that pragmatism …

Courts Beyond Judging, Michael C. Pollack

Articles

Across all fifty states, a woefully understudied institution of government is responsible for a broad range of administrative, legislative, law enforcement, and judicial functions. That important institution is the state courts. While the literature has examined the federal courts and federal judges from innumerable angles, study of the state courts as institutions of state government — and not merely as sources of doctrine and resolvers of disputes — has languished. This Article remedies that oversight by drawing attention for the first time to the wide array of roles state courts serve, and by evaluating the suitability of both the allocation …

The Compensation Constraint And The Scope Of The Takings Clause, Thomas W. Merrill

Faculty Scholarship

The idea I wish to explore in this Essay is whether the established methods for determining just compensation can shed light on the meaning of other issues that arise in litigation under the Takings Clause. Specifically, is it possible to “reverse engineer” the Takings Clause by reasoning from settled understandings about how to determine just compensation in order to reach certain conclusions about when the Clause applies, what interests in private property are covered by the Clause, and what does it mean to take such property?

The proposed exercise is positive or descriptive in nature rather than normative. The hypothesis …

Elected-Official-Affiliated Nonprofits: Closing The Public Integrity Gap, Richard Briffault

Faculty Scholarship

Recent years have witnessed the growing use by elected officials, particularly state and local chief executives, of affiliated nonprofit organizations to advance their policy goals. Some of these organizations engage in public advocacy to advance a governor’s or mayor’s legislative program. Others operate more like conventional charities, raising philanthropic support for a range of governmental social welfare programs. Elected officials fundraise for these organizations, which are often staffed by close associates of those elected officials, and the organizations’ public communications frequently feature prominently the name or likeness of their elected-official sponsor. As these organizations do not engage in electioneering, they …

A Perfectly Empty Gift, Christina D. Ponsa-Kraus

Faculty Scholarship

“Almost citizens.” What does that even mean? It’s like being “kind of pregnant,” isn’t it? In other words, nonsense. Citizenship isn’t an “almost” kind of thing. It’s all or nothing. Unless, I suppose, the word “almost” is used in a simple temporal sense – as in, “Our naturalization ceremony is tomorrow. We’re almost citizens! Yay!” There, the phrase “almost citizens” makes sense. Otherwise not. Right?

Wrong. “Almost citizens,” in a sense as ambiguous as it sounds, is what Almost Citizens: Puerto Rico, the U S Constitution, and Empire is about. “Almost citizens” describes what Puerto Ricans were from 1898, when …

Originalism From The Soft Southern Strategy To The New Right: The Constitutional Politics Of Sam Ervin Jr, Logan E. Sawyer Iii

Scholarly Works

Although originalism’s emergence as an important theory of constitutional interpretation is usually attributed to efforts by the Reagan administration, the role the theory played in the South’s determined resistance to civil rights legislation in the 1960s actually helped create the Reagan coalition in the first place. North Carolina Senator Sam Ervin Jr., the constitutional theorist of the Southern Caucus, developed and deployed originalism because he saw its potential to stymie civil rights legislation and stabilize a Democratic coalition under significant stress. Ervin failed in those efforts, but his turn to originalism had lasting effects. The theory helped Ervin and other …

Constitutional Foundations For Public Health Practice: Key Terms And Principles, Fazal Khan, Marice Ashe

Scholarly Works

This chapter introduces the structure of the government in the United States and the concept of “separation of powers" among the federal, state, and local governments. It introduces core legal principles from the U.S. Constitution that frame the authority of the government to enact and enforce laws to protect and promote the public's health. These Constitutional principles are essential for the health advocate and leader to understand because every federal, state, and local law must comply with them. The core principles include the enumerated powers of the federal government and the broad plenary powers of state and local governments—which we …

From Property Rights To Liberty Rights: We The Corporations, A Review Essay, Laura Phillips-Sawyer

Scholarly Works

A long-standing, and deeply controversial, question in constitutional law is whether or not the Constitution's protections for “persons” and “people” extend to corporations. Law professor Adam Winkler's We the Corporations chronicles the most important legal battles launched by corporations to “win their constitutional rights,” by which he means both civil rights against discriminatory state action and civil liberties enshrined in the Bill of Rights and the Constitution (p. xvii). Today, we think of the former as the right to be free from unequal treatment, often protected by statutory laws, and the latter as liberties that affect the ability to live …

Judges As Superheroes: The Danger Of Confusing Constitutional Decisions With Cosmic Battles, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

When Guns Threaten The Public Sphere: A New Account Of Public Safety Regulation Under Heller, Joseph Blocher, Reva B. Siegel

Faculty Scholarship

Government regulates guns, it is widely assumed, because of the death and injuries guns can inflict. This standard account is radically incomplete—and in ways that dramatically skew constitutional analysis of gun rights. As we show in an account of the armed protesters who invaded the Michigan legislature in 2020, guns can be used not only to injure but also to intimidate. The government must regulate guns to prevent physical injuries and weapons threats in order to protect public safety and the public sphere on which a constitutional democracy depends.

For centuries the Anglo-American common law has regulated weapons not only …

The Role Of Opposition In A Democracy: A Bibliometric Analysis, Abhinav Shrivastava Mr., Richa Dwivedi Ms.

Library Philosophy and Practice (e-journal)

Globally, democracy is under threat with the prevalence of authoritarian regime all over the world and the role of opposition in a democracy is an under studied subject and has not received adequate importance by researchers all over the world. The present study focuses on the bibliometrics analysis of the role of opposition in democratic system in order to understand the research status of the subject globally using SCOPUS and Web of Science databases.

The analysis shows that research has been undertaken by various organisations and researchers however, the present time demands more attention on the role of opposition so …

Jacobson 2.0: Police Power In The Time Of Covid-19, James R. Steiner-Dillon

Akron Law Faculty Publications

The COVID-19 pandemic has become a legal, as well as a public health, crisis. In response to the pandemic, state and municipal governments have imposed unprecedented constraints on Americans’ daily activities. These restrictions provoked a wave of constitutional challenges that have revealed the antiquated doctrinal foundations of states’ police power in the area of public health. It has been over a century since the Supreme Court, in Jacobson v. Massachusetts, articulated a broadly deferential approach to constitutional review of state orders issued in response to a public health emergency. The constitutional order has changed since Jacobson was decided; many provisions …