Constitutional Law Commons^™

“Catchy Phrases That Convey A Message”: The Danger Of Tam’S Copymark Creep And Trademark Law’S New First Amendment Analysis, Stacey M. Lantagne

Nevada Law Journal

No abstract provided.

Breaking Bivens?: Falsification Claims After Ziglar V. Abassi And Reframing The Modern Bivens Doctrine, Alex Langsam

Fordham Law Review

The U.S. Supreme Court’s 2017 decision in Ziglar v. Abassi purported to clarify the role of the judiciary in inferring Bivens suits directly from the Constitution, rather than a federal statute. Despite this effort, uncertainty has plagued the lower courts. While the Court’s recent Bivens jurisprudence has focused on issues concerning national security, uncertainty also persists in Bivens claims in other domains. This Note examines Bivens claims seeking damages for constitutional violations by law enforcement agents who falsify evidence, lie to procure a search warrant, and commit other similar acts of misconduct. After recognizing a broad, unacknowledged circuit split on …

Extraterritorial Rights In Border Enforcement, Fatma Marouf

Faculty Scholarship

Recent shifts in border enforcement policies raise pressing new questions about the extraterritorial reach of constitutional rights. Policies that keep asylum seekers in Mexico, expand the use of expedited removal, and encourage the cross-border use of force require courts to determine whether noncitizens who are physically outside the United States, or who are treated for legal purposes as being outside even if they have entered the country, can claim constitutional protections. This Article examines a small but growing body of cases addressing these extraterritoriality issues in the border enforcement context, focusing on disparities in judicial analyses that have resulted in …

Why The Nineteenth Amendment Matters Today: A Guide For The Centennial, Neil S. Siegel

Faculty Scholarship

The story of the Nineteenth Amendment includes a half-century of social movement contestation over whether permitting women to vote would destroy or democratize the American family and the American constitutional structure. This Essay revisits that story—an unfinished narrative of both disappointment and hope—in the service of identifying reasons why it relates to the lives of contemporary Americans. The overarching objective of the Essay is to suggest that the full story of the Nineteenth Amendment has always involved much more than a narrow debate over a determinate decision rule regarding women’s access to the franchise. To accomplish that objective, the Essay …

Historical Gloss, Madisonian Liquidation, And The Originalism Debate, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

The U.S. Constitution is old, relatively brief, and very difficult to amend. In its original form, the Constitution was primarily a framework for a new national government, and for 230 years the national government has operated under that framework even as conditions have changed in ways beyond the Founders’ conceivable imaginations. The framework has survived in no small part because government institutions have themselves played an important role in helping to fill in and clarify the framework through their practices and interactions, informed by the realities of governance. Courts, the political branches, and academic commentators commonly give weight to such …

Before Loving: The Lost Origins Of The Right To Marry, Michael Boucai

Journal Articles

For almost two centuries of this nation’s history, the basic contours of the fundamental right to marry were fairly clear as a matter of natural, not constitutional, law. The right encompassed marriage’s essential characteristics: onjugality and contract, portability and permanence. This Article defines those four dimensions of the natural right to marry and describes their reflections and contradictions in positive law prior to Loving v. Virginia (1967). In that landmark case, the Supreme Court enforced a constitutional “freedom to marry” just when marriage’s definitive attributes were on the brink of legal collapse. Not only did wedlock proceed in Loving’s wake …

Protecting The Role Of The Press During Times Of Crisis, Mary-Rose Papandrea

William & Mary Law Review

President Trump’s daily tweets attacking the media have led many observers to express concern about the state of the press in our nation. Trump has called the press “the ... enemy of the [American] people,” encouraged a climate of hatred toward journalists at his rallies, refused to condemn Saudi Arabia for the brutal killing of reporter Jamal Khashoggi, and accused the media of writing “fake news.” The public’s trust in the institutional press has simultaneously diminished. Combined with the continuing economic challenges journalists face, the press is certainly facing some difficult times.

Nevertheless, things are not as dire as they …

The Court Should Not Let Politically Divided Times Affects Its Choices And Decisions, Erwin Chemerinsky

William & Mary Law Review

The Court should not let politically divided times affect its choices or decisions. Altering the Court’s role in politically divided times would require a definition of what qualifies as such an era and a theory of how to act in such times. Almost every era in American history could be deemed a politically divided time. Changing the Court’s role in politically divided times is inconsistent with its preeminent role: interpreting and enforcing the Constitution. This role does not change, and should not change, in politically charged moments. Indeed, history shows that the Court cannot know what is likely to lessen …

Daijosai And The Separation Of Religion And State, Thomas Makoto Naruse

Japanese Society and Culture

Daijosai, which is regarded as an indispensable ceremony for the accession of the throne, is a Shinto ceremony. Therefore, as Japanese Constitution defines separation of church and state, it is not held as a national ceremony (a state act) but held as a ceremony of the imperial house. On the other hand, since it is said to be an indispensable ceremony for the accession of the throne, government finds public significance, and the cost is covered by the national expenses. Criticisms that claim violation of separation of church and state arise, and many lawsuits were filed.

This article reveals …

What Does Corporal Punishment In Schools Mean? : Trend Of Case Law, Hitoshi Miyahara

Japanese Society and Culture

Since the Meiji era, school education statutes have consistently prohibited corporal punishment. However, corporal punishment never disappeared from schools. We have to consider the reasons why teachers are unable to avoid them. The Supreme Court of Japan has ruled that corporal punishment is illegal, but that teachers could adopt certain forms of “physical contact” in the course of instruction. Their conduct becomes illegal only when they abuse their power. Case law indicates that a decision on whether they abused it is made after considering all circumstances, for example the necessity to use force, purpose of instruction, and method of discipline.

Justices Make The Tough-- But Right-- Call In Cross-Border Shooting Case, A. Benjamin Spencer

Popular Media

No abstract provided.

February 27, 2020: A Few Thoughts On Ezra Klein’S New Book. This Is The Real Reason We’Re Polarized, Bruce Ledewitz

Hallowed Secularism

Blog post, “ A few thoughts on Ezra Klein’s new book. This is the real reason we’re polarized“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Confronting Memory Loss, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The Confrontation Clause of the Sixth Amendment grants “the accused” in “all criminal prosecutions” a right “to be confronted with the witnesses against him.” A particular problem occurs when there is a gap in time between the testimony that is offered, and the cross-examination of it, as where, pursuant to a hearsay exception or exemption, evidence of a current witness’s prior statement is offered and for some intervening reason her current memory is impaired. Does this fatally affect the opportunity to “confront” the witness? The Supreme Court has, to date, left unclear the extent to which a memory-impaired witness can …

February 26, 2020: The Crisis Over Recusal, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Crisis Over Recusal“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Questioning The Definition Of "Sex" In Title Vii: Bostock V. Clayton County, Ga., Katherine Carter

Duke Journal of Constitutional Law & Public Policy Sidebar

In October of 2019, the Supreme Court heard the arguments of two cases presenting the same inquiry: whether Title VII’s prohibition on sex discrimination encompasses discrimination on the basis of sexual orientation. Currently, twenty-one states as well as the District of Columbia expressly prohibit discrimination based on sexual orientation by statute or regulation. Other states offer protection in the form of agency interpretation or court ruling. However, for the remaining states with no established protections, Title VII stands as the only potential safeguard against sexual orientation discrimination.

The following Commentary considers the case of Gerald Bostock, a gay man from …

Contracting Free From Racial Animus: Comcast Corporation V. National Association Of African American-Owned Media And Entertainment Studios, Catherine Tarantino

Duke Journal of Constitutional Law & Public Policy Sidebar

The United States has come a long way in promoting racial equality since the 1866 and 1964 Civil Rights Acts, but racial animus still plays an impermissible role in many contracting and employment decisions. Comcast Corporation v. National Association of African American-Owned Media and Entertainment Studios offers the Supreme Court the opportunity to decide which causal standard applies to claims alleging racial bias in contracting under 42 U.S.C. § 1981. Specifically, the Court will decide whether § 1981 requires a plaintiff to demonstrate that racial animus was the but-for cause or simply a motivating-factor in the defendant’s refusal to contract. …

February 22, 2020: David Brooks Channels Ishmael, Bruce Ledewitz

Hallowed Secularism

Blog post, “David Brooks Channels Ishmael“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

"Liberty Requires Accountability": The Appointments Clause, Lucia V. Sec, And The Next Constitutional Controversy, Michael A. Sabino

William & Mary Business Law Review

“Liberty requires accountability” is the essential precept which animates the Appointments Clause of Article II. This constitutional safeguard assures that those who exercise the sovereign power of the United States remain accountable both to the Chief Executive who appointed them and to the People who elected that President. The proviso was most recently tested in Lucia v. SEC, and, most assuredly, shall be in controversy again. After first expositing the high Court’s extensive Appointments Clause jurisprudence presaging Lucia, this Article thoroughly explores this newest Article II landmark, before concluding with commentary upon future Appointments Clause challenges expected to soon …

Time To Prune The Flora--Procedural Due Process, The Full Payment Rule And Assessable Penalties: Larson V. United States, Frank G. Colella

William & Mary Business Law Review

In Larson v. United States, the Second Circuit Court of Appeals rejected the opportunity to limit the scope of the Flora “full payment” rule when its strict application in the instant case foreclosed judicial review of the underlying tax controversy. As a result, the decision rubberstamped the IRS’s imposition of assessable penalties without any meaningful judicial review of those actions. The Article argues that the court’s decision to blindly apply the full payment rule, without considering any form of a hardship exception, effectively denied John Larson his right to due process of law as guaranteed by the Fifth Amendment …

February 15, 2020: The Age Of The Decadent Thinker, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Age of the Decadent Thinker“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.