Constitutional Law Commons^™

Harmonizing Federal Tax Law And The State Legalization Of Marijuana, Daniel Rowe

Loyola of Los Angeles Law Review

No abstract provided.

To Speak Or Not To Speak, That Is Your Liberty: Janus V. Afscme, David Forte

Law Faculty Articles and Essays

Some Supreme Court precedents go through extensive death spasms before being interred. Lochner v. New York, Plessy v. Ferguson, and Austin v. Michigan Chamber of Commerce come to mind. Others like Chisholm v. Georgia and Minersville School District v. Gobitis incurred a swift and summary execution. Still others, overtaken by subsequent cases, remain wraith-like presences among the Court’s past acts: Beauharnais v. Illinois and Buck v. Bell, for example, remain “on the books.”

The Political Question Doctrines, John Harrison

American University Law Review

No abstract provided.

Artis V. District Of Columbia—What Did The Court Actually Say?, Doron M. Kalir

Law Faculty Articles and Essays

On January 22, 2018, the Supreme Court issued Artis v. District of Columbia. A true "clash of the titans," this 5-4 decision featured colorful comments on both sides, claims of "absurdities," uncited use of Alice in Wonderland vocabulary ("curiouser," anyone?), and an especially harsh accusation by the dissent that "we’ve wandered so far from the idea of a federal government of limited and enumerated powers that we’ve begun to lose sight of what it looked like in the first place."

One might assume that the issue in question was a complex constitutional provision, or a dense, technical federal code …

The Impact Of St Catherine's Milling, Karen Drake

Articles & Book Chapters

St Catherine’s Milling may seem like a peculiar choice as one of the three constitutional cases that helped to define Canada as a nation, given that most of the legal principles affirmed by Lord Watson, writing for the Privy Council, have been overruled. This paper identifies the principles from St Catherine’s Milling which are still good law, and argues that the logic that underlies and shapes those principles is the logic of the doctrine of discovery and the principle of terra nullius.

Jurists have articulated different versions of the doctrine of discovery and disagreed about its precise requirements. At …

The Once And (Maybe) Future Klein Principle, William Araiza

Faculty Scholarship

No abstract provided.

Formal And Informal Amendment Of The United States Constitution, Richard Kay

Faculty Articles and Papers

No abstract provided.

The Consumer Financial Protection Bureau's Structural Integrity And A Call For Adaptive And Incremental Agency Design Policy, Hannah Clendening

Indiana Law Journal

INTRODUCTION

I. UNDERSTANDING AND RATIONALIZING COMPETING DESIGN OBJECTIVES

A. CONGRESSIONAL INTENT AND THE CFPB’S FORMATION

B. D.C. CIRCUIT’S REASONING IN PHH CORP. V. CONSUMER FINANCIAL PROTECTION BUREAU

C. BASIC TENETS OF LEADING ORGANIZATIONAL DESIGN THEORIES

D. ANOTHER LOOMING CONSIDERATION: AGENCY CAPTURE

II. A NEED FOR ADAPTIVE AND INCREMENTAL APPROACHES TO AGENCY DESIGN

CONCLUSION

Reciprocal Immunity, Colin Miller

Indiana Law Journal

This essay advances a reciprocal rights theory. It argues that the Constitution precludes statutes and rules from providing nonreciprocal benefits to the State when the lack of reciprocity interferes with the defendant’s ability to secure a fair trial, unless reciprocity would implicate a significant state interest. Therefore, unless a significant State interest is involved, a grant of immunity to a prosecution witness should trigger reciprocal immunity to a directly contradictory defense witness.

The Fortification Of Inequality: Constitutional Doctrine And The Political Economy, Kate Andrias

Indiana Law Journal

As Parts I and II of this Essay elaborate, the examination yields three observations of relevance to constitutional law more generally: First, judge-made constitutional doctrine, though by no means the primary cause of rising inequality, has played an important role in reinforcing and exacerbating it. Judges have acquiesced to legislatively structured economic inequality, while also restricting the ability of legislatures to remedy it. Second, while economic inequality has become a cause célèbre only in the last few years, much of the constitutional doctrine that has contributed to its flourishing is longstanding. Moreover, for several decades, even the Court’s more liberal …

Ordinariness As Equality, Elise C. Boddie

Indiana Law Journal

This Essay argues for an equality norm of racial ordinariness. Ordinariness here refers to the state of being treated as a full, complex person and a rightful recipient of human concern. As a norm, its purpose is to focus constitutional attention on common, everyday interactions as sources of racial indignity. It also seeks to sensitize courts and other constitutional actors to the infinite varieties and grittier dimensions of discrimination through the “understandings of everyday folk.”

Part I explains why ordinariness matters and the importance of everyday interactions to achieving ordinariness. It discusses these points through the lens of a true …

The Limits On Congress's Power To Do Nothing: A Preliminary Inquiry, William P. Marshall

Indiana Law Journal

As Part I of this Essay will show, arguments for limiting Congress’s authority to do nothing are not readily found in history, text, or constitutional structure. Part I concludes, however, that the need for establishing some constitutional limits on congressional inaction is nevertheless compelling because of the seriousness of the dangers involved. Accordingly, Part II goes on to advance an approach that would limit Congress’s power to do nothing in certain circumstances. Specifically, Part II proposes an approach that would limit Congress’s power to do nothing based on the type of power that Congress is (or is not) exercising. Congress …

Political Norms, Constitutional Conventions, And President Donald Trump, Neil S. Siegel

Indiana Law Journal

I will argue that what is most troubling about the conduct of President Trump during and since the 2016 U.S. presidential campaign is not any potential violations of the U.S. Constitution or federal law. There likely have been some such violations, and there may be more. But what is most troubling about President Trump is his disregard of political norms that had previously constrained presidential candidates and Presidents, and his flouting of nonlegal but obligatory “constitutional conventions” that had previously guided and disciplined occupants of the White House. These norms and conventions, although not “in” the Constitution, play a pivotal …

Utopian Thinking For Progressive Constitutionalists, Mark Tushnet

Indiana Law Journal

The opening pages of Rousseau’s Social Contract have two striking phrases. The more celebrated is, “[m]an was born free, and everywhere he is in chains.” That, though, is preceded by this: “I want to inquire whether, taking men as they are and laws as they can be made to be, it is possible to establish some just and reliable rule of administration in civil affairs.” I take this second sentence as my guide: Taking the textual Constitution as it is and with the interpreted Constitution as it could be, can there be a constitutionalism that progressives could wholeheartedly endorse?

I …

U.S. Supreme Court Surveys: 2016 Term. Matal V. Tam: Free Speech Meets "Disparaging" Trademarks In The Supreme Court, Niki Kuckes

Roger Williams University Law Review

No abstract provided.

Rhode Island's Prescription Drug Database: Warrantless Searches By Law Enforcement Pass Constitutional Muster, Stephen D. Lapatin

Roger Williams University Law Review

No abstract provided.

Bringing Brown V. Board Of Education Out Of Retirement, Angela Mae Kupenda

Journal Articles

The decision in the landmark U.S. Supreme Court case Brown v. Board of Education, turns 65 years old in 2019. While 65 is considered to be a normal retirement age, Brown was retired many years ago while it was still just a toddler. As a result, Brown never became all that it could be. Now as Brown turns 65, it is (past) time to bring Brown out of its early, premature retirement. The primary purpose of this commentary is to encourage other professors to think, too, on what we can do individually, and what we must do collectively, to reinvigorate …

Uniform Enforcement Or Personalized Law? A Preliminary Examination Of Parking Ticket Appeals In Chicago, Randall K. Johnson

Faculty Works

This article is one in a series of papers that sets the record straight about the type, quality and quantity of information that U.S. cities may employ, in order to make more informed policy decisions. It does so, specifically, by examining information that is collected by the City of Chicago. The goal is to gauge the uniformity, as well as the relative cost-effectiveness, of the parking ticket appeals process. The article has six (VI) parts. Part I is the introduction, which sets the stage for a preliminary examination of the parking ticket appeals process in Chicago. Part II describes the …

Statutory Damages And Standing After Spokeo V. Robins, Richard L. Heppner Jr.

Law Faculty Publications

In Spokeo v. Robins, the U.S. Supreme Court held that courts may no longer infer the existence of an injury in fact—and thus constitutional standing—from a statute’s use of a particular remedy, such as a statutory or liquidated damages provision. But Spokeo also directed courts to consider whether Congress intended to identify an intangible harm and elevate it to the status of a “concrete” injury in fact when deciding standing questions. This article argues that courts can and should continue to pay close attention to the structure and language of statutory remedial provisions in making that assessment. The article proposes …

The Rugged Individual's Guide To The Fourth Amendment: How The Court's Idealized Citizen Shapes, Influences, And Excludes The Exercise Of Constitutional Rights, Scott E. Sundby

Articles

Few figures inspire us like individuals who stand up for their rights and beliefs despite the peril that may follow. One cannot help but feel awe looking at the famous photograph of the lone Tiananmen

Square protestor facing down a line of Red Army tanks, his willowy frame clothed in a simple white shirt and black pants as he holds a shopping bag. Or who can help but feel humbled by the courage of Rosa Parks, a seamstress, who was willing to be arrested rather than sit in the back of the bus?

But while these stories of everyday individuals …