Constitutional Law Commons^™

Can They Do That?: The Limits Of Governmental Power Over Medical Treatment, Paul Jerome Mclaughlin Jr.

Library Faculty Publications

The government’s power over health care is strongest when health care treatments and precautions to protect the public welfare, such as quarantines and vaccinations, are at issue. Governmental power over health care decisions weakens when an individual’s health care decisions are in question. When health care decisions would only affect the individual making them, the government’s power is even less. This article argues that government agents must be cautious in making health care determinations for others and that they should aim to protect an individual’s right to self-determination so long as those choices do not pose a threat to the …

February 1, 2018: Where’S The Crime? Release The Memo, Bruce Ledewitz

Hallowed Secularism

Blog post, “Where’s the Crime? Release the Memo“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Executive Power And National Security Power, Julian Davis Mortenson, Andrew Kent

Book Chapters

The constitutional text governing national security law is full of gaps, oversights, and omissions. In combination with the authorization principle -- which requires all federal actors to identify particularized authority for their actions -- these gaps have often presented an acute dilemma for Presidents charged with defending the nation. Focusing on three periods in American history, this chapter sketches the historical evolution of how the political branches have responded.

First, the early republic. During this period, presidents responded to the authorization dilemma by seeking highly particularized authorization from the two other constitutional branches of government. Throughout the era, presidents’ claims …

Deference And Prisoner Accommodations Post-Holt: Moving Rluipa Toward "Strict In Theory, Strict In Fact", Barrick Bollman

Northwestern University Law Review

The Religious Land Use and Institutionalized Persons Act (RLUIPA) requires prisons to make accommodations to regulations that substantially burden a prisoner’s religious exercise, unless the prison can show that the regulation is the least restrictive means to meeting a compelling interest. This language suggests strict scrutiny, and yet in Cutter v. Wilkinson, the Supreme Court instead intimated in dicta that courts should give prison officials “due deference” when applying this test. The 2015 case of Holt v. Hobbs presented the Court with an opportunity to clarify how much deference is due under RLUIPA. Though Holt declared that there should …

The Role Of Exit Rights: What The Theory Of The Firm Says About The Conduct Of Brexit Negotiations, Richard A. Epstein

Cardozo Law Review

The United Kingdom's (U.K.) June 2016 decision to exercise its great surprises option to leave the European Union (E.U. or Union) represents one of the in the complex history of supranational organizations. Most of the discussion in the wake of that decision has tended to stress the particulars of the referendum with regard to the short-term advantages and disadvantages of a decision that has clearly divided class and region within the U.K. Older individuals, and those who did not live and work in the Greater London area, tended to vote in favor of exit. Those who were younger and in …

A Triumphant Victory For Gay Rights In Belize Lays The Foundation For A Domino Effect Throughout The Caribbean, Lauren Tisdale

Loyola of Los Angeles International and Comparative Law Review

No abstract provided.

Civil Liberties And The Dual Legacy Of The Founding, John W. Compton

Political Science Faculty Books and Book Chapters

"This chapter will argue that the framers’ dual legacy in the area of civil liberties has cast a long historical shadow. Since the early republic, Americans have invoked constitutional civil liberties provisions to challenge customary forms of authority. Yet establishing the abstract legitimacy of one's claim – that it comports with a particular conception of religious liberty or the freedom of speech, for example – has typically been insufficient to prevail in the courts."

Precedent And Constitutional Structure, Randy J. Kozel

Northwestern University Law Review

The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion.

Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and historical …

Supreme Court Case Has Implications For Abortion Referendum, Brian M. Barry

Reports

This article details the possible consequences of an important Supreme Court case on the 8th Amendment of the Irish Constitution, centring on the interpretation of the right to life of the unborn.

Forfeiture Policy In The United States: Is There Hope For Reform, David Pimentel

Articles

No abstract provided.

Newsroom: 'You Can't Help Being In Awe' 1-30-2018, Michael M. Bowden, Edward Fitzpatrick

Life of the Law School (1993- )

No abstract provided.

January 28, 2018: Two Stories Perfectly Illustrate Our Deadlock, Bruce Ledewitz

Hallowed Secularism

Blog post, “Two Stories Perfectly Illustrate Our Deadlock“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Thurgood Marshall Memorial Lecture Series: "The Race Card And The Trump Card: New Challenges And Familiar Frustrations" February 5, 2018, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Wyoming V. Zinke, Jaclyn Van Natta

Public Land & Resources Law Review

In Wyoming v. Zinke, the Bureau of Land Management attempted to update a regulation governing hydraulic fracturing from the 1980s, but oil and gas industry companies opposed, and brought suit. The district court held in favor of the industry petitioners, and the Bureau of Land Management and citizen group intervenors appealed. In the wake of appeal, Donald J. Trump became President of the United States. The administration change caused the Bureau of Land Management to alter its position and align with the new administration. Secretary of the Interior, Ryan Zinke, via executive order, began rescinding the new fracking regulation, …

January 23, 2018: Distrust On Climate News, Bruce Ledewitz

Hallowed Secularism

Blog post, “Distrust on Climate News“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Racism And Impeachment Power, John M. Greabe

Law Faculty Scholarship

[Excerpt] “Does racism constitute a legitimate basis for removing a president? More generally, what is the scope of Congress's removal power?

”In all but the most extraordinary circumstances, the remedy for incompetent political leadership -indeed, even abhorrent political leadership lies in the next election. But the Constitution does provide Congress with tools to remove certain federal officeholders between elections.”

Chance To Change: Jennings V. Rodriguez As A Chance To Bring Due Process To A Broken Detention System, Joe Bianco

Duke Journal of Constitutional Law & Public Policy Sidebar

Jennings v. Rodriguez will determine whether specific classes of detained noncitizens will be entitled to bond hearings before Immigration Judges moving forward. The challenge comes from the Ninth Circuit, which, with the Second Circuit, mandates bond hearings for some detainees automatically after six months. Those Circuits found that after that point, the detention was arbitrary without a showing by the Government of why the noncitizen needed continued detention. The Government seeks to retain the current system, where the noncitizen’s detention release is entirely at the Government’s discretion. This commentary sets out the case and argues that the better route is …

Newsroom: A Painful History 1-19-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Economic Protectionism: Irrationally Constitutional, Joshua Park

Pepperdine Law Review

The Constitution is built on the principle that all citizens are created equal. Naturally, we believe that no law should be passed solely for the sake of benefiting one group over another. Yet, governments continue to pass economic regulations that have no purpose other than maintaining wealth within a specific group, and the judiciary continues to uphold such regulations. While the judiciary purports to uphold challenged legislation only if it passes “rational basis review,” the term “review” is a misnomer because the analysis has essentially become automatic deference. Under the judiciary’s modern treatment of the Equal Protection Clause, successfully challenging …

January 18, 2018: Shutting Down The Government, Bruce Ledewitz

Hallowed Secularism

Blog post, “Shutting Down the Government“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.