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Who Benefits From Leaving The “Bad” School?, Annabelle V. González 2021 FIU College of Law

Who Benefits From Leaving The “Bad” School?, Annabelle V. González

FIU Law Review

No abstract provided.


Fish On First, Larry Alexander 2021 University of San Diego School of Law

Fish On First, Larry Alexander

FIU Law Review

No abstract provided.


Dehors The Record: A Correction Of A Final Jeopardy Question, Thomas E. Baker 2021 FIU College of Law

Dehors The Record: A Correction Of A Final Jeopardy Question, Thomas E. Baker

FIU Law Review

No abstract provided.


Transparency And The First, Mark Fenster 2021 University of Florida Levin College of Law

Transparency And The First, Mark Fenster

FIU Law Review

No abstract provided.


Professor Fish—Why Are You Still Picking On Liberalism?, Micah Schwartzman 2021 University of Virginia School of Law

Professor Fish—Why Are You Still Picking On Liberalism?, Micah Schwartzman

FIU Law Review

No abstract provided.


Is Free Speech An Academic Value? Is Academic Freedom A Constitutional Value?, Daniel Gordon 2021 University of Massachusetts Amherst

Is Free Speech An Academic Value? Is Academic Freedom A Constitutional Value?, Daniel Gordon

FIU Law Review

No abstract provided.


Sport And Expression, Sport As Expression, Howard M. Wasserman 2021 FIU College of Law

Sport And Expression, Sport As Expression, Howard M. Wasserman

FIU Law Review

No abstract provided.


Some Objections To Strict Liability For Constitutional Torts, Michael L. Wells 2021 University of Georgia School of Law

Some Objections To Strict Liability For Constitutional Torts, Michael L. Wells

Georgia Law Review

Qualified immunity protects officials from damages for
constitutional violations unless they have violated “clearly
established” rights. Local governments enjoy no immunity, but
they may not be sued on a vicarious liability theory for
constitutional violations committed by their employees. Critics
of the current regime would overturn these rules in order to
vindicate constitutional rights and deter violations. This
Article argues that across-the-board abolition of these limits on
liability would be unwise as the costs would outweigh the
benefits. In some contexts, however, exceptions may be justified.
Much of the recent controversy surrounding qualified
immunity involves suits in which police officers …


Finding Original Public Meaning, James Macleod 2021 Brooklyn Law School

Finding Original Public Meaning, James Macleod

Georgia Law Review

Textualists seek to interpret statutes consistent with their “original public meaning” (OPM). To find it, they ask an avowedly empirical question: how would ordinary readers have understood the statute’s terms at the time of their enactment? But as the Supreme Court’s decision in Bostock v. Clayton County highlights, merely asking an empirical question doesn’t preclude interpretive controversy. In considering how Title VII applies to LGBT people, the Bostock majority and dissents vehemently disagreed over the statute’s bar on discrimination “because of sex”—each side claiming that OPM clearly supported its interpretation. So who, if anyone, was right? And how can textualists’ …


Squaring A Circle: Advice And Consent, Faithful Execution, And The Vacancies Reform Act, Ronald J. Krotoszynski, Atticus DeProspo 2021 University of Alabama School of Law

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 …


We The People (Of Faith): The Supremacy Of Religious Rights In The Shadow Of A Pandemic, Elizabeth Reiner Platt, Katherine M. Franke, Lilia Hadjiivanova 2021 Columbia Law School, Law, Rights, and Religion Project

We The People (Of Faith): The Supremacy Of Religious Rights In The Shadow Of A Pandemic, Elizabeth Reiner Platt, Katherine M. Franke, Lilia Hadjiivanova

Faculty Scholarship

Late on a Friday evening in April 2021, over a year into the COVID-19 crisis, the Supreme Court issued a brief opinion that dramatically transformed constitutional law. In the midst of a once-in-a-lifetime global pandemic, the Court ruled in Tandon v. Newsom that state and local governments seeking to curb the spread of the novel coronavirus may not restrict in-person religious gatherings more rigorously than any other type of activity, such as shopping for groceries or working at a warehouse. The opinion was only one in a barrage of cases filed in federal courts across the country — many …


The Puzzles And Possibilities Of Article V, David E. Pozen, Thomas P. Schmidt 2021 Columbia Law School

The Puzzles And Possibilities Of Article V, David E. Pozen, Thomas P. Schmidt

Faculty Scholarship

Legal scholars describe Article V of the U.S. Constitution, which sets forth rules for amending the document, as an uncommonly stringent and specific constitutional provision. A unanimous Supreme Court has said that a “mere reading demonstrates” that “Article V is clear in statement and in meaning, contains no ambiguity, and calls for no resort to rules of construction.” Although it is familiar that a small set of amendments, most notably the Reconstruction Amendments, elicited credible challenges to their validity, these episodes are seen as anomalous and unrepresentative. Americans are accustomed to disagreeing over the meaning of the constitutional text, but …


Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh 2021 Columbia Law School

Long Live The Common Law Of Copyright!: Georgia V. Public.Resource.Org., Inc. And The Debate Over Judicial Role In Copyright, Shyamkrishna Balganesh

Faculty Scholarship

In Georgia v. Public.Resource.Org, Inc., the Supreme Court resurrected a nineteenth-century copyright doctrine – the government edicts doctrine – and applied it to statutory annotations prepared by a legislative agency. While the substance of the decision has serious impli­cations for due process and the rule of law, the Court’s treatment of the doctrine recognized an invigorated role for courts in the development of copyright law through the use of principled reasoning. In expounding the doctrine, the Court announced a vision for the judicial role in copy­right adjudication that is at odds with the dominant approach under the Copyright …


Propertied Rites, Kellen R. Funk 2021 Columbia Law School

Propertied Rites, Kellen R. Funk

Faculty Scholarship

This Essay reviews Jack Rakove’s Beyond Belief, Beyond Conscience and Winnifred Fallers Sullivan’s Church State Corporation with an eye towards the complex management of religious property in U.S. constitutional doctrine. Part I summarizes Rakove’s book and highlights its value in the context of recent scholarship on early American legislative theory. Part II critiques Rakove’s turn from description towards advocacy of James Madison’s liberal protestant political theology. Part III summarizes Sullivan’s book as a particularly potent rebuttal to Rakove’s. Part IV takes up Sullivan’s method to consider the most recent crisis of religious property before the Supreme Court, that of government …


Defining Crime, Delegating Authority – How Different Are Administrative Crimes?, Daniel C. Richman 2021 Columbia Law School

Defining Crime, Delegating Authority – How Different Are Administrative Crimes?, Daniel C. Richman

Faculty Scholarship

As the Supreme Court reconsiders whether Congress can so freely provide for criminal enforcement of agency rules, this Article assesses the critique of administrative crimes though a federal criminal law lens. It explores the extent to which this critique carries over to other instances of mostly well-accepted, delegated federal criminal lawmaking – to courts, states, foreign governments, and international institutions. By considering these other delegations through the lens of the administrative crime critique, the Article destabilizes the critique’s doctrinal foundations. It then suggests that if one really cares about liberty – not the abstract “liberty” said to be protected by …


New Federalism And Civil Rights Enforcement, Alexander A. Reinert, Joanna C. Schwartz, James E. Pfander 2021 Benjamin N. Cardozo School of Law

New Federalism And Civil Rights Enforcement, Alexander A. Reinert, Joanna C. Schwartz, James E. Pfander

Articles

Calls for change to the infrastructure of civil rights enforcement have grown more insistent in the past several years, attracting support from a wide range of advocates, scholars, and federal, state, and local officials. Much of the attention has focused on federal-level reforms, including proposals to overrule Supreme Court doctrines that stop many civil rights lawsuits in their tracks. But state and local officials share responsibility for the enforcement of civil rights and have underappreciated powers to adopt reforms of their own. This Article evaluates a range of state and local interventions, including the adoption of state law causes of …


Judicial Deference To Administrative Interpretation Of Statutes From A Comparative Perspective, Vincent Martenet 2021 Vanderbilt University Law School

Judicial Deference To Administrative Interpretation Of Statutes From A Comparative Perspective, Vincent Martenet

Vanderbilt Journal of Transnational Law

This Article examines, from a comparative perspective, how judicial deference to administrative interpretation of statutes takes place and whether it is constitutionally admissible. Since constitutions and statutes rarely deal expressly with this issue, courts may have to determine whether or not such deference is permitted, and, if so, whether generally or in certain cases only. The constitutional, legal, and judicial context prevailing in each country is particularly important in this regard. Nevertheless, it may provide courts with little, if any, guidance on the specific issue of deference to administrative statutory interpretation. In this respect, a nuanced approach along all or …


Inherent Powers And The Limits Of Public Health Fake News, Michael Goodyear 2021 New York Law School

Inherent Powers And The Limits Of Public Health Fake News, Michael Goodyear

Articles & Chapters

The world has changed dramatically over the past year. The COVID-19 pandemic has presented unprecedented challenges and has caused a catastrophic loss of over 300,000 U.S. lives. This crisis has been compounded by an infodemic, an effusion of misinformation and fake news about COVID-19. This incorrect information has flooded social media and online platforms, confusing and misleading the American public. Yet U.S. constitutional law largely upholds fake news as protected free speech under the First Amendment. This legal reality has significantly compounded the COVID-19 crisis.

But U.S. law is not limited to only constitutional enumerated powers. An underexamined approach to …


Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn't Such An Outlier On Free Speech, Evelyn Aswad 2021 University of Oklahoma College of Law

Taking Exception To Assessments Of American Exceptionalism: Why The United States Isn't Such An Outlier On Free Speech, Evelyn Aswad

Faculty Articles

One of the most significant challenges to human freedom in the digital age involves the sheer power of private companies over speech and the fact that power is untethered to existing free speech principles. Heated debates are ongoing about what standards social media companies should adopt to regulate speech on their platforms. Some have argued that global social media companies, such as Facebook and Twitter, should align their speech codes with the international human rights law standards of the United Nations (“U.N.”). Others have countered that U.S.-based companies should apply First Amendment standards. Much of this debate is premised on …


No Voice, No Exit, But Loyalty? Puerto Rico And Constitutional Obligation, Guy-Uriel E. Charles, Luis Fuentes-Rohwer 2021 Duke University Law School

No Voice, No Exit, But Loyalty? Puerto Rico And Constitutional Obligation, Guy-Uriel E. Charles, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This Essay contextualizes Puerto Rico not as an anomalous colonial vestige but as fundamentally a part of the United States' ongoing commitment to racial economic domination. We are thrilled to highlight this work, which indicts our constitutional complacence with the second-class status of Puerto Rican citizens and demands a national commitment to self-determination for Puerto Rico.


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