Constitutional Law Commons^™

Separation Of Functions For Ai: Restraining Speech Regulation By Online Platforms, Niva Elkin-Koren, Maayan Perel

Lewis & Clark Law Review

The Free Speech Clause of the First Amendment of the U.S. Constitution restricts government regulation of private speech. However, it generally does not apply to private management of speech. New forms of speech regulation by online platforms disrupt this constitutional framework. Platforms, such as Google, Facebook, and Twitter, are responsible for mediating much of the public discourse and governing access to speech and speakers around the world. These private businesses match users and content in whatever way best benefits their commercial interests. At the same time, however, they exercise regulatory power when they filter, block, and remove content at the …

Manipulating Risk: Immigration Detention Through Automation, Kate Evans, Robert Koulish

Lewis & Clark Law Review

The U.S. Department of Homeland Security arrests as many as 500,000 migrants per year and detains more than 350,000 of them through Immigration and Customs Enforcement (ICE). Since 2012, ICE has relied on an automated Risk Classification Assessment (RCA) system to recommend whom to detain and whom to release. The authors are the first to obtain access to its algorithm and this Article is the first to make that system’s methodology public. While purportedly basing these recommendations on indicia of flight risk and risk to public safety, the RCA in fact relies on an algorithm driven by political preferences. By …

The 2019 Higgins Distinguished Visitor Lecture: The Subversive Side Of Textualism And Original Intent, Donald B. Ayer

Lewis & Clark Law Review

The Lorene Sails Higgins Charitable Trust provides the Lewis & Clark community access to leading legal scholars from around the world. Each year, the campus is graced with a visitor renowned in their field whose stay is funded by a grant from the trust. This lecture, given by the former Deputy Attorney General and Principal Deputy Solicitor General Donald B. Ayer during the course of his visit, discussed the changes in American legal thinking during his career.

Originalist Sin: The Failure Of Originalism To Justify The Unitary Executive Theory, Marc Mohan

Lewis & Clark Law Review

Originalists justify a “unitary executive” theory of presidential powers using the Constitution’s vesting of the executive power in “a President,” as opposed to a council or other multi-member setup. Inspite of this justification’s popularity with originalists, a deeper understanding of prerogative and power, as the Founders understood those key concepts, reveals that the unitary executivetheory cannot be justified through either the original intent orthe original meaning of our founding document. Intheabsence of this grounding, the unitary executive theory is underpinned by modern exigenciesand thereforeloses coherency as an originalist theory.

John Marshall’S Constitution: Methodological Pluralism And Second-Order Ipse Dixit In Constitutional Adjudication, D.A. Jeremy Telman

Lewis & Clark Law Review

This Article provides a comprehensive treatment of the constitutional jurispru- dence of the Marshall Court (1801–1835), addressing its relationship to con- temporary originalism. Until recently, there seemed to be no need for such a study. With the move from intentionalism to textualism in the 1980s, originalists came to understand their movement as an innovation and a reac- tion against the perceived excesses of the Warren and Burger Courts. Original- ists did not claim that originalist methodology informed nineteenth-century constitutional adjudication.

Recently, however, originalists have made claims that constitutional adjudi- cation in the United States has always been originalist. This Article …

Speech Inequality After Janus V. Afscme, Charlotte Garden

Faculty Articles

This Article explores the growing divide between the Roberts Court’s treatment of the free speech rights of wealthy individuals and corporations in campaign finance cases as compared to its treatment of the rights of public-sector labor unions and their members. First, it highlights some internal contradictions in the Janus Court’s analysis. Then, it discusses the growing—yet mostly ignored—divergence in the Court’s treatment of corporate and labor speakers with respect to the use of market influence to achieve political influence.The Article has two Parts. In Part I, I explain how the Court reached its decision in Janus before critiquing the decision’s …

Up In The Air: Venue Must Remain Grounded In The Constitution, Jameson L. Gay

Kentucky Law Journal

No abstract provided.

The Current Application Of The Myriad And Mayo/Alice Rulings On Patent Eligibility: Inconsistent Results And Contradistinguishing Biotechnology Products, Skye Cho

Cardozo Arts & Entertainment Law Journal

The note examines the inconsistent application of the patent eligibility framework under Section 101 of the Patent Act, particularly in biotechnology. It argues that despite efforts by the USPTO to clarify the framework through memos and examples, courts have applied it inconsistently, leading to discrimination against biotechnology products. The analysis focuses on key Supreme Court decisions, such as Myriad Genetics and Mayo, and their impact on the patent eligibility of biotechnological innovations. The note highlights the need for clearer guidance to ensure consistent outcomes and fair treatment of biotechnological inventions.

Patent Fraud By Design, Mordechay Sorek, Miriam Marcowitz-Bitton, Yotam Kaplan

Cardozo Arts & Entertainment Law Journal

Patent law is supposed to offer property-right protection to inventors in order to promote and incentivize innovation. Yet current patent law doctrine effectively incentivizes patentees to defraud the patent office, allowing them to secure undeserved legal protection. What is worse, once such protection is fraudulently obtained, patentees can use it to stop downstream innovation, harm competitors, and charge supracompetitive prices to consumers. The current patent system generates all of these harms because it offers strong legal protection while failing to impose equally strong sanctions against those who attempt to abuse it. Indeed, the current system rarely sanctions patentees who have …

Urge To Reform Life Without Parole So Nonviolent Addict Offenders Never Serve Lifetime Behind Bars, Johanna Poremba

Touro Law Review

No abstract provided.

Book Review Essay: Jewish And American Law: A Comparative Study. (Vols. 1 And 2) By Samuel J. Levine, Marie A. Failinger

Touro Law Review

No abstract provided.

The “Step-Child Of Scholarly Investigation”: Preliminary Observations About The Origins Of Academic Jewish Law Scholarship, David Hollander

Touro Law Review

No abstract provided.

Equity In American And Jewish Law, Itzchak E. Kornfeld , Ph.D.

Touro Law Review

No abstract provided.

Lawful Permanent Residency: A Potential Solution For Temporary Protected Status Holders In The Eastern District Of New York, Cody M. Gecht

Touro Law Review

No abstract provided.

The Arms Dealer Who Cries, :“First Amendment”, Gustave Passanante

Touro Law Review

No abstract provided.

In General Public Use: An Unnecessary Test In Fourth Amendment Searches Using Advanced Sensing Technology, Mike Petridis

Touro Law Review

No abstract provided.

How Actions Affirm: Reflections On The Question Of Affirmative Action, Doron Menashe

Touro Law Review

No abstract provided.

Introduction To Charles A. Reich’S Keeping Up: Walking With Justice Douglas, Rodger D. Citron

Touro Law Review

No abstract provided.

Introduction To The Conference: Commemorating The Life And Legacy Of Charles A. Reich, Rodger D. Citron

Touro Law Review

No abstract provided.

Hernandez, Bivens, And The Supreme Court's Expanding Theory Of Judicial Abdication, William J. Aceves

Faculty Scholarship

Sergio Adrián Hernández Güereca, a fifteen-year-old Mexican child, was playing with his friends in Mexico when he was shot in the face by a U.S. Border Patrol Agent standing in the United States. Sergio died on the concrete ground where he fell.

In Hernandez v. Mesa, Sergio’s family brought a federal lawsuit seeking to hold Agent Jesus Mesa, Jr. responsible for the death of their son. They alleged Agent Mesa had violated Sergio’s constitutional rights and based their claim on the Bivens doctrine. In Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court established a …