Constitutional Law Commons^™

Fairness Over Finality: Peña-Rodriguez V. Colorado And The Right To An Impartial Jury, Katherine Brosamle

Loyola of Los Angeles Law Review

No abstract provided.

Consociationalism Vs. Incentivism In Divided Societies: A Question Of Threshold Design Or Of Sequencing?, Clark B. Lombardi, Pasarlay Shamshad

Articles

Scholarship on constitutional design for post-conflict or divided societies focuses a great deal of attention on two issues: (1) the processes and timing by which constitutional rules should be established and (2) whether constitutions should reflect a consociationalist or incentivist approach to governance. Scholars are increasingly willing to entertain the possibility that constitutions drafted during period of transition from civil war or authoritarianism need not, and often should not, answer immediately all questions that constitutions tend to answer; however, they tend to assume that the question of whether constitutions should be consociationalist or incentivist is one that should not be …

Immigration Enforcement And The Future Of Discretion, Shoba S. Wadhia

Roger Williams University Law Review

No abstract provided.

United States Supreme Court Surveys: 2016 Term. Still Standing After All These Years: Five Decades Of Litigation Under The Fair Housing Act And The Supreme Court Still Can't Say For Sure Who Is Protected, David A. Logan

Roger Williams University Law Review

No abstract provided.

Treason And Terror: A Toxic Brew, B. Mitchell Simpson Iii

Law Faculty Scholarship

No abstract provided.

The Decline Of Free Speech On The Postmodern Campus: The Troubling Evolution Of The Heckler's Veto, Kenneth Lasson

All Faculty Scholarship

The Twenty-First Century has presented new challenges to the traditional ways that free speech in America has been encouraged and protected. While the right to express one’s opinions has become increasingly problematic in society at large, it is particularly imperiled in the very places that pride themselves as being open marketplaces of ideas – on college and university campuses.
Today we’re faced with numerous campus speech codes that substantially limit First-Amendment rights. They are ubiquitous and often cavalierly invoked. For civil libertarians the good news is that not one of the few such codes that have been tested in court …

Piracy And Due Process, Andrew Kent

Faculty Scholarship

No abstract provided.

Enforcing The Rights Of Due Process: The Original Relationship Between The Fourteenth Amendment And The 1866 Civil Rights Act, Kurt T. Lash

Law Faculty Publications

For more than a century, legal scholars have looked to the 1866 Civil Rights Act for clues regarding the original meaning of the Fourteenth Amendment. Because the 1866 version of the Act protected only citizens of the United States, most scholars believe that the Act should be used as a guide to understanding the Fourteenth Amendment’s citizenship-based Privileges or Immunities Clause. A close look at the original sources, however, reveals that the 1866 Civil Rights Act protected rights then associated with the requirements of due process. The man who drafted Section One of the Fourteenth Amendment, John Bingham, expressly described …

The "Irish Born" One American Citizenship Amendment, Kevin C. Walsh

Law Faculty Publications

Our Constitution has a deferred maintenance problem because we have fallen out of the habit of tending to its upkeep ourselves. The silver lining is a double benefit from any constitutional maintenance projects that we undertake now. These projects are good not only for what they do to our Constitution, but also for making us exercise self-government muscles that have atrophied from civic sloth.

Fortunately, the time has never been better to repeal one of our Constitution’s most pointlessly exclusionary provisions. The President of the United States is married to a naturalized citizen. And nobody can legitimately question the patriotism …

Abandoning Realization And The Transition Tax: Toward A Comprehensive Tax Base, Henry Ordower

All Faculty Scholarship

The Tax Cuts and Jobs Act of 2017 imposed a tax, the “transition tax,” on as much as 31 years of undistributed, accumulated corporate income. This article focus on that transition tax as it evaluates thefunction and constitutionality of the tax and considers whether the transition tax might serve as a model for addressing the broader problem of deferred income in the United States. The article views the transition taxas joining the expatriation tax and other mark to market inclusion provisions in abandoning any pretext that there is continued vitality in the realization principle as something more compelling than any …

Insubstantial Burdens, Chad Flanders

All Faculty Scholarship

In order to win a claim under the Religious Freedom Restoration Act (or “RFRA”), you have to show that your religious beliefs have been “substantially burdened” by a governmental law or practice. In her dissent to Hobby Lobby, Justice Ginsburg accused the majority of taking an approach to defining “substantial burden” that abdicated the judicial role in determining what a substantial burden was. In her dissent to the denial of cert in the Wheaton case, Sotomayor advanced the same line. “I do not doubt that Wheaton genuinely believes that signing the self-certification form is contrary to its religious beliefs,” she …

Talking Trump And The Twenty-Fifth Amendment: Correcting The Record On Section 4, Joel K. Goldstein

All Faculty Scholarship

The first year of the presidency of Donald J. Trump brought attention to Section 4 of the Twenty-fifth Amendment, the constitutional provision that allows the Vice President and a Cabinet majority to transfer presidential powers and duties from a President who is “unable to discharge the powers and duties” of his office. Although the ensuing media discussion included many thoughtful contributions, it also produced many mistaken assertions by scholars, journalists and other commentators regarding the importance, scope, operation, and effect of Section 4. These mistakes are troubling because they may produce enduring misunderstanding regarding a provision designed to handle some …

After Suffrage Comes Equal Rights? Era As The Next Logical Step, Tracy Thomas, Tracey Jean Boisseau

Con Law Center Articles and Publications

No abstract provided.

Socioeconomic Status Discrimination, Danieli Evans

Articles

This Article makes the case for protecting socioeconomic status (SES) under discrimination statutes that govern employment, housing, education, voting, public accommodations, and credit/lending. While others have argued that poverty should be a protected class under the Fourteenth Amendment, the courts have rejected this idea. The possibility of protecting SES under discrimination statutes has received little consideration. I argue that this idea deserves more serious attention. I advance four arguments in favor of adding SES to the list of protected traits. Two moral, one political, and one legal.

First and most straightforward, the values animating discrimination law apply to poverty: Existing …

Intergovernmental Federalism Disputes, Lochlan F. Shelfer

Georgia Law Review

Constitutional litigation is increasingly being waged
between governments, in both suits between a state and
the United States, and suits between two or more states.
The jurisdictionof the Federalcourts to hear such suits,
however, is disputed. The Supreme Court's cases are
famously difficult to reconcile, with some denying
jurisdiction and other seemingly identical cases
addressing the merits without discussing jurisdiction.
Some scholars have argued that intergovernmental
disputes over political jurisdiction historically are not
justiciableand that it is constitutionally illegitimate for
the Court to hear them. Recently, some scholars have
argued that the Court should hear such cases, but have
assumed …

Rethinking The Effects Of A Guilty Plea On The Right To Challenge One's Statute Of Conviction, Hannah Roberts

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Learned Hand's Seven Other Ideas About The Freedom Of Speech, Vincent A. Blasi

Faculty Scholarship

I say “other” because, regarding the freedom of speech, Learned Hand has suffered the not uncommon fate of having his best ideas either drowned out or credited exclusively to others due to the excessive attention that has been bestowed on one of his lesser ideas. Sitting as a district judge in the case of Masses Publishing Co. v. Patten, Hand wrote the earliest judicial opinion about the freedom of speech that has attained canonical status. He ruled that under the recently passed Espionage Act of 1917, writings critical of government cannot be grounds for imposing criminal punishment or the …

Profound Sophistication Or Legal Sophistry, Ediberto Román, Katryna Santa Cruz, Melissa Gonzalez, Dianet Torres

Faculty Publications

No abstract provided.

Playing Word Games With New York’S No Surcharge Law, Katie Coggins

Touro Law Review

No abstract provided.

Unequal Protection: Examining The Judiciary’S Treatment Of Unwed Fathers, Brett Potash

Touro Law Review

No abstract provided.