Constitutional Law Commons^™

Humphrey's Eulogy: A Functionalist View Of Trump V. Slaughter And The Role Of The Ftc, Alex Zhang

Duke Journal of Constitutional Law & Public Policy Sidebar

Trump v. Slaughter presents the Supreme Court with a foundational question about the administrative state: whether the for-cause removal protections afforded to Federal Trade Commission Commissioners under the FTC Act are consistent with Article II's vesting of executive power in the President, and, if not, whether Humphrey's Executor v. United States should be overruled.

In March 2025, President Trump removed two FTC Commissioners without satisfying the statutory standard of inefficiency, neglect of duty, or malfeasance in office. The dismissed Commissioners sued, and the District Court for the District of Columbia granted summary judgment in their favor, holding that Humphrey's Executor …

Using Ai To Identify National Security Threats: A Holistic Examination Of The Legal Risks And Increased Need For Regulation, Skylar Mcvicar

Duke Journal of Constitutional Law & Public Policy Sidebar

Artificial intelligence (AI) is integrating rapidly into daily practice, including in the national security sector. AI has the potential to improve bureaucratic efficiency, enhance military intelligence and threat assessment, and develop autonomous vehicles and weapons, making it a revolutionary tool in national security. Since AI implementation is a relatively recent phenomenon, there is currently limited governmental regulation in place to safeguard against potential violations of civil liberties and other legal risks. Given AI's capacity to infringe on certain civil liberties such as the Fourth Amendment right to privacy and the Fourteenth Amendment protection against discriminatory policies, establishing strong oversight measures …

Alaska Dep’T Of Fish And Game V. Federal Subsistence Bd., Mj Fiedler

Public Land & Resources Law Review

A subsistence hunt in Kake, Alaska, during the COVID-19

pandemic sparked a lawsuit from the State of Alaska Department of Fish

and Game challenging the authority of the Federal Subsistence Board to

open the hunt. This lawsuit is a recent addition to a long history of the

State of Alaska’s resistance to federal enforcement of the Alaska National

Interest Lands Conservation Act provision establishing priority for rural

subsistence users. The Ninth Circuit ultimately affirmed the Federal

Subsistence Board’s authority to open the subsistence hunt.

Addictive By Design: Can States Regulate Social Media Algorithms In The Face Of Free Speech Challenges?, Niamh Kathleen Keane

University of Miami Business Law Review

The foe we did not know, the stranger that stole the show. Social media once presented itself as a friendly way to connect with loved ones through shared pictures and catchy captions. Yet, it has since shown its true colors; intentionally addicting its users—for its own financial benefit—and showing no remorse doing so.

Entranced, users set off on a digital journey, veering down paths they never imagined . . . Today, children as young as eight years old are exposed to extremely harmful content such as medically unsupported dieting techniques, substance abuse, and dangerous, life-threatening social media “trends,” all of …

Originalism Chokes: The 2024 Trump Cases, Lawrence Rosenthal

UC Law Constitutional Quarterly

By 2024, a majority of the Justices of the Supreme Court had expressed the view that to be legitimate, constitutional adjudication must be based on the original meaning of the Constitution’s text. Anything else, these Justices have argued, is illegitimate judicial policymaking. Yet, in what were likely the two most critical and high-profile cases decided in 2024, the Court, including its avowedly originalist Members, made no use of originalism. In the first case, the Court faced the question whether a State could bar President Trump from running for President under Section 3 of the Fourteenth Amendment. In the second, the …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

Editor-In-Chief's Foreword, Marlene Coss

UC Law Constitutional Quarterly

No abstract provided.

Bruen, Levels Of Generality, And Our Historical Tradition Of The Regulatory “Why”, Kevin K. Wang

UC Law Constitutional Quarterly

To pass Second Amendment muster under New York State Rifle & Pistol Association v. Bruen, gun laws encompassed by the Amendment’s plain text must align with our nation’s historical tradition of firearm regulation. A challenged law comports with history and tradition when it is sufficiently analogous to historical regulations along two metrics: “how” and “why” the regulation burdens the right to keep and bear arms.

One glaring ambiguity leftover from Bruen is the level of generality at which courts, when analogizing between laws past and present, must frame a regulation’s “how” and “why”—an issue of major consequence. Characterizing the “how” …

The Body At The Mercy Of The State: Sama V. Hannigan And The Fragmented Right To Refuse Across State Lines, Mallory Yeates

UC Law Constitutional Quarterly

Courts have long recognized bodily autonomy as a core constitutional value. Yet, doctrine governing reproductive healthcare tells a different story. Sama v. Hannigan exposes the fragility of the right to refuse medical treatment, particularly for incarcerated patients whose claims must survive the demanding standard of qualified immunity. When physicians removed Carrie Rahat Sama’s ovary despite her explicit refusal, her constitutional claim failed because no precedent with sufficiently similar facts had previously condemned such conduct. This case reveals how the “clearly established” prong of qualified immunity can foreclose redress for blatant violations of autonomy.

This Note argues that the viability of …

United States V. Skrmetti: On Realism, Reason, And Hope, Marc Spindelman

UC Law Constitutional Quarterly

No abstract provided.

Hester's Dubious Roots And Legacy: Open Fields Doctrine Under Scrutiny, Laura K. Donohue

Texas A&M Law Review

For over a century, open fields doctrine has shaped Fourth Amendment law, denying people the right to be secure on their own property. Its impact has steadily expanded, with the result that, by some estimates, the government can now engage in warrantless surveillance of some 96% of private land and buildings regardless of fences, postings, the distance from public roads or byways, or the use to which the property is put. An originalist approach throws the doctrine into disarray: at the time of the Founding, common law protected the curtilage, which extended to the fields, barns, storehouses, and other buildings …

The Unexplored Future Of State Copyrights And Patents In Ai-Generated Creations, Timothy J. Mcfarlin

Texas A&M Law Review

This is the first article to broadly explore the possibility of state copyrights and patents in AI-generated creations and what it could portend for the future of intellectual property law.

The U.S. Constitution delegates to Congress, via Article I, the power to pass laws “securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.” It reserves to the states or to the people, via the Tenth Amendment, certain unspecified powers not delegated to the federal government. These could include the power to recognize exclusive rights in “writings and discoveries” generated by artificially intelligent …

"The Silence Of The Farms": Suppressing Speech And Trampling Transparency To Shield Big Ag, Erin Okuno

Texas A&M Law Review

Do you really know where your last meal came from and whether it was safe to eat? Most people are not aware of the often appalling conditions at agricultural production facilities (aptly known as “factory farms”), including worker injuries and abuse, contaminated food, and environmental pollution, as well as the horrific ways in which the animals are kept, raised, and slaughtered. In the face of these concerning conditions and alarmingly frequent food recalls—including millions of pounds of contaminated meat—it would seem prudent to increase transparency at factory farms, but historically, they have operated behind a shield of secrecy due to …

Brief Of The American Immigration Lawyers Association And Immigration Law Scholars As Amici Curiae In Support Of Respondents, Lindsay Nash

Amicus Briefs

Amicus curiae brief submitted by the American Immigration Lawyers Association and immigration law scholars in support of the respondents in Mullin v. Doe and Trump v. Miot before the Supreme Court of the United States. The brief argues that the Temporary Protected Status (TPS) statute strictly limits the Executive Branch's authority to terminate TPS designations and requires continuation of protection unless the statutory conditions justifying designation no longer exist. The amici further contend that TPS serves a critical humanitarian function by protecting individuals from removal, detention, and loss of work authorization while conditions in designated countries remain unsafe.

Evaluasi Terhadap Undang-Undang Pemilu Dan Peraturan Pelaksanaannya Kearah Penyempurnaan Sistim Pemilu, M. Riza Sihbudi

Jurnal Hukum & Pembangunan

Abstract

Eighteen Generations Of Uncertainty: Arkansas’S New Perpetuity Law Is “Contrary To The Genius Of A Republic”, Steven H. Jacobs

Arkansas Law Review

A drunk driver crashes his Lamborghini into a family sedan, killing the mother and brother and putting the sister in the hospital. The family gets a multi-million-dollar judgement, but they cannot collect––the wealthy drunk driver has no money of his own. All of his money and assets are protected from suit in a spendthrift dynasty trust left behind by his great-great-grandfather. He and his family are members of a new aristocratic class created by the downfall of the rule against perpetuities. The drunk driver first turned to alcohol after his inheritance requirements coerced him into leaving his life behind to …

The Military Officer's Oath To Disobey Lawful But Unethical Orders, Joshua Braver

Northwestern University Law Review

How should a military officer respond to a lawful yet unethical order, unethical in the sense that it conflicts with their professional responsibilities? Army culture, scholarship, and doctrine regard officers as professionals, akin to doctors and lawyers, with expertise in the management of violence and a shared commitment to an ethical code. This code demands obedience to lawful orders to uphold civilian control of the military. But to protect against civilian misuse of the military, the code requires disobedience to unethical orders. Faced with a lawful but unethical order, the military officer is mired in a contradiction in which their …

Should Judicial Opinions Be Read Like Statutes?, Margaret H. Lemos

Northwestern University Law Review

Should judicial opinions be interpreted with an eye to their purpose, context, or the intent of their authors, or should interpreters focus on the ordinary meaning of the text? Opinions present the same sorts of interpretive puzzles as other legal texts, and yet they have been omitted from the debates over interpretive methodology that dominate the fields of constitutional and statutory interpretation. The omission is no accident: the Supreme Court has stated repeatedly—and with increasing frequency in recent years—that judicial opinions are not to be read like statutes. Yet neither courts nor commentators have explained why the principles that ground …

The Ex Parte Young Cause Of Action: A Riddle, Wrapped In A Mystery, Inside An Enigma, Andrew S. Oldham, Adam I. Steene, John W. Tienken

Northwestern University Law Review

Ex parte Young ushered in a new era of the American judicial system. Most famously, the decision allowed plaintiffs, in certain circumstances, to sue state officials without having to worry about sovereign immunity. Young’s other holding, though perhaps lesser known, is no less important: individuals, the Supreme Court held, have an equitable cause of action to sue government officials for injunctive relief.

Even today, that second holding remains something of a riddle. Did this cause of action always exist in American law? Or was it an invention of the Young Court? And, at any rate, does the Ex parte …

Living To Die: Life Imprisonment Without Remission Or Parole In India, Preeti Pratishruti Dash, Rushil Batra

Articles

This article critically examines the Supreme Court of India’s use of life imprisonment without the possibility of remission or parole (LWORP) as a sentencing alternative to the death penalty. While the Constitution Bench in V Sriharan vs Union of India (2015) upheld the constitutionality of such sentences, it did not articulate principled standards governing their imposition. This article argues that the absence of such standards has produced a vacuum in LWORP sentencing. To substantiate this claim, we analyse fifty-three Supreme Court judgments delivered between 2016 and 2024 in which death sentences were commuted to LWORP. The analysis reveals widespread inconsistency …