If We’Re Serious About Protecting Religious Liberty, We Need Universal Healthcare,
2020
Duquesne University
If We’Re Serious About Protecting Religious Liberty, We Need Universal Healthcare, Bruce Ledewitz
Newspaper Columns
Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.
Unsettled Questions In Student Speech Law,
2020
Belmont University College of Law
Unsettled Questions In Student Speech Law, David L. Hudson Jr.
Law Faculty Scholarship
More than fifty years ago, the U.S. Supreme Court famously proclaimed in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969), that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In subsequent decades, the Supreme Court reduced the level of free-speech protections for public school students, but Tinker is still the lodestar decision.
There remain several areas of uncertainty regarding the scope of student (K–12) First Amendment rights. This Article addresses three of those main areas: (1) whether a student’s speech can be limited by the unruly behavior …
A More Perfect Union: The Emoluments Clause,
2020
Pepperdine University
A More Perfect Union: The Emoluments Clause, Grant C. Rasak
Pepperdine Law Review
America’s Framers crafted the Emoluments Clause to preserve institutional integrity, mitigate undue influences, and best serve the American People. The Emoluments Clause influenced the course of the Constitutional Convention, as the Pennsylvania Delegation championed resolute reforms. Benjamin Franklin, working alongside James Wilson, advocated for strengthening domestic and international practices by crafting the Emoluments Clause. The Framers proposed a system of self-government which sought to establish public trust, mitigate corrupt practices, and promote institutional integrity. The Pennsylvania Delegation summoned Wilson, under the tutelage of Franklin, to champion the Emoluments Clause. Wilson proposed a new notion of national unity by placing profound …
Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball,
2020
Pepperdine University
Court Expansion And The Restoration Of Democracy: The Case For Constitutional Hardball, Aaron Belkin
Pepperdine Law Review
Neither electoral politics, norms preservation, nor modest good government reform can restore the political system because they cannot mitigate the primary threat to the American democracy, Republican radicalism. Those who believe otherwise fail to appreciate how and why radicalism will continue to impede democratic restoration regardless of what happens at the ballot box, misdiagnose the underlying factors that produce and sustain GOP radicalism, and under-estimate the degree of democratic deterioration that has already taken place. Republicans do not need to prevail in every election to forestall the restoration of democracy or to prevent Democrats from governing. The only viable path …
July 14, 2020: The Fantasyland Of American Public Discourse,
2020
Duquesne University
July 14, 2020: The Fantasyland Of American Public Discourse, Bruce Ledewitz
Hallowed Secularism
Blog post, “The Fantasyland of American Public Discourse“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Preparing The Public For A Contested Election,
2020
Benjamin N. Cardozo School of Law
Preparing The Public For A Contested Election, Deborah Pearlstein
Online Publications
While perhaps once thought too far-fetched to discuss out loud in serious company, concerns that Donald Trump will refuse to leave office even if he loses the November election have gained increasing mainstream attention in recent months. Indeed, it would be foolish to assume that such a possibility is out of the question. The president has spent the past four years making clear his desire to remain more than two terms in office, and has worked especially diligently of late to lay the rhetorical groundwork for declaring the results of the federal election – particularly one reliant on absentee voting …
Janus And The Future Of Collective Bargaining: Rhetorically Predicting A First Amendment Right To Negotiation,
2020
William & Mary Law School
Janus And The Future Of Collective Bargaining: Rhetorically Predicting A First Amendment Right To Negotiation, Thomas J. Freeman, Aaron Mckain, Destynie J.L. Sewell
William & Mary Business Law Review
The importance of the U.S. Supreme Court ruling in Janus v. American Federation of State, County, and Municipal Employees has been widely recognized for its effect on reducing the power and influence of public unions. A close reading of the majority opinion provides a clue that compulsory collective bargaining itself may be settling into the court’s crosshairs. Collective bargaining is an important tool, by which labor can reduce the often-inherent power imbalance it has with ownership and management. Yet as this Article outlines, the interests of individual workers can often be at odds with those other workers workers, particularly those …
Symposium: Pandemics And The Constitution: Calling Their Own Shots: Governors' Emergency Declarations During The Covid-19 Pandemic,
2020
The University of Akron
Symposium: Pandemics And The Constitution: Calling Their Own Shots: Governors' Emergency Declarations During The Covid-19 Pandemic, Maggie Davis, Christine Gentry, Trudy Henson
ConLawNOW
This paper outlines governors’ powers to combat public health emergencies, and then analyzes specific measures taken by the states in response to the COVID-19 pandemic. State powers to quarantine, isolate, and take other measures to protect the public health and welfare are well-established, going back to the police power reserved for states in the Tenth Amendment and recognized by the U.S. Supreme Court over one hundred years ago. Additionally, most state constitutions and statutes specifically grant governors authority to take a variety of protective measures during emergencies. While large-scale quarantine and isolation orders have not been previously implemented in the …
July 4, 2020: Happy Fourth Of July,
2020
Duquesne University
July 4, 2020: Happy Fourth Of July, Bruce Ledewitz
Hallowed Secularism
Blog post, “Happy Fourth of July“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
United States V. Lozoya: The Turbulence Of Establishing Venue For In-Flight Offenses,
2020
Texas A&M University School of Law
United States V. Lozoya: The Turbulence Of Establishing Venue For In-Flight Offenses, Daeja Pemberton
Texas A&M Law Review
The U.S. Constitution protects one’s right to a fair trial in a proper venue. Typically, venue is proper in whatever territorial jurisdiction a defendant commits an offense. But this rule is not as clear-cut when the offense takes place in a special jurisdiction, such as American airspace. A court must then determine whether the offense continued into the venue of arrival, making it proper under the Constitution. This issue was reexamined when Monique Lozoya assaulted another passenger on an airplane during a domestic flight. In United States v. Lozoya, the Ninth Circuit Court of Appeals failed to correctly identify …
Reconciling Risk And Equality,
2020
Vanderbilt University Law School
Reconciling Risk And Equality, Christopher Slobogin
Vanderbilt Law School Faculty Publications
States have increasingly resorted to statistically-derived risk algorithms to determine when diversion from prison should occur, whether sentences should be enhanced, and the level of security and treatment a prisoner requires. The federal government has jumped on the bandwagon in a big way with the First Step Act, which mandated that a risk assessment instrument be developed to determine which prisoners can be released early on parole. Policymakers are turning to these algorithms because they are thought to be more accurate and less biased than judges and correctional officials, making them useful tools for reducing prison populations through identification of …
Are We Witnessing The Death Of Reason And Truth In American Public Life?,
2020
Duquesne University
Are We Witnessing The Death Of Reason And Truth In American Public Life?, Bruce Ledewitz
Newspaper Columns
Collected biweekly contributions to the Pennsylvania Capital-Star, a nonpartisan, nonprofit news site.
July 1, 2020: Originalism Is Dead,
2020
Duquesne University
July 1, 2020: Originalism Is Dead, Bruce Ledewitz
Hallowed Secularism
Blog post, “Originalism Is Dead“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
The Failure To Grapple With Racial Capitalism In European Constitutionalism,
2020
American UniversityWashington College of Law
The Failure To Grapple With Racial Capitalism In European Constitutionalism, Fernanda Giorgia Nicola Dr.
Working Papers
Since the 1980s prominent scholars of European legal integration have used the example of U.S. constitutionalism to promote a federal vision for the European Community. These scholars, drawing lessons from developments across the Atlantic, concluded that the U.S. Supreme Court had played a key role in fostering national integration and market liberalization. They foresaw the possibility for the European Court of Justice (ECJ) to be a catalyst for a similar federal and constitutional outcome in Europe. The present contribution argues that the scholars who constructed today’s dominant European constitutional paradigm underemphasized key aspects of the U.S. constitutional experience, including judgments …
Seeing Beyond Courts: The Political Context Of The Nationwide Injunction,
2020
University of Miami School of Law
Seeing Beyond Courts: The Political Context Of The Nationwide Injunction, Charlton C. Copeland
Articles
No abstract provided.
Worse Than Punishment: How The Involuntary Commitment Of Persons With Mental Illness Violates The United States Constitution,
2020
UC Law SF
Worse Than Punishment: How The Involuntary Commitment Of Persons With Mental Illness Violates The United States Constitution, Samantha M. Caspar, Artem M. Joukov
UC Law Constitutional Quarterly
This Article highlights that individuals who suffer from mental health problems can be particularly defenseless against an attack on their liberty through criminal and civil law. Specifically, it delineates how the current laws allow for a potential indefinite commitment of a person who may not have even committed a single crime. The Article explains that constitutionally mandated standards should be required to protect individuals who face losing their liberty due to the perceived threat of future harm. The authors posit that, while preventing individuals from harming themselves or others is an honorable goal, the state should only be able to …
Playing Politics With Executions Abuse Of Executive Discretion,
2020
Barry University School of Law
Playing Politics With Executions Abuse Of Executive Discretion, Joanmarie Davoli
Faculty Scholarship
No abstract provided.
Abolishing Private Prisons: A Constitutional And Moral Imperative,
2020
University of Arkansas at Little Rock William H. Bowen School of Law
Abolishing Private Prisons: A Constitutional And Moral Imperative, André Douglas Pond Cummings, Robert Craig
Law Faculty Scholarship
No abstract provided.
Airline Deregulation In The Fourth Circuit,
2020
University of Central Florida
Airline Deregulation In The Fourth Circuit, Timothy M. Ravich
South Carolina Law Review
No abstract provided.
Comparative Cruelty: A Comparative Analysis Of The Eighth Amendment To The United States Constitution And Section Nine Of The New Zealand Bill Of Rights Act, Carrie Leonetti
UC Law Constitutional Quarterly
Given that the United States Constitution and the New Zealand Bill of Rights Act both contain prohibitions against governmental acts of cruelty and torture, this Article offers a comparative analysis of the judicial interpretations of the meaning of “cruel” in the prohibition against cruel and unusual punishment in the two country’s founding documents. The Article beings by considering the shared historical underpinnings of the prohibitions, which require a proportionality analysis when assessing whether a punishment is excessive. Next, it examines the meaning of “cruelty” and the scope of the prohibitions in New Zealand and the United States. The Article documents …
