Constitutional Law Commons^™

Contemplating Masterpiece Cakeshop, Terri R. Day

Faculty Scholarship

No abstract provided.

Private Or Public Right? Who Should Adjudicate Patentability Disputes And Is The Current Scheme Really Constitutional?, Jasmyne M. Baynard

Marquette Intellectual Property Law Review

“The patent bargain is the foundation upon which the patent system is built: in exchange for protections for an invention, the inventor agrees to make public their inventions so that others may build upon it.” The patent bargain creates a presumption of protection for the inventors, yet categorizing the patent a public right or a private right has diminished expectations for inventors and confusion for the masses. On October 11, 2016, the Supreme Court denied two petitions for writ of certiorari that challenged the constitutionality of Patent Trial and Review Board proceedings on the basis of the patent owner’s Seventh …

Qualitative Diversity: Affirmative Action's New Reframe, Eang Ngov

Faculty Articles

No abstract provided.

#Protestersrightsmatter: The Case Against Increased Criminal Penalties For Protesters Blocking Roadways, Caroline M. Moos

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

The Constitutionality Of Claiming Jail, Paul E. Salamanca

Law Faculty Scholarly Articles

Most pari-mutuel horse races in the United States are claiming races.In such races, a track official stipulates a claim price, and any authorized person may buy any horse that runs in that race at that price. This device discourages owners from running overqualified horses, which tends to ensure competitive fields. Say, for example, an official set a price of $50,000 for a race. An owner who ran a $60,000 horse in that race would stand a fair chance of picking up a good part of the purse, but he or she would also run a high risk of losing the …

Who Are The Punishers, Raff Donelson

Journal Articles

No abstract provided.

Spokeo Misspeaks, Lauren E. Willis

Loyola of Los Angeles Law Review

Most commentators have critiqued the Supreme Court’s opinion in Spokeo, Inc. v. Robins for failing to answer the question presented. But in important ways, the Spokeo opinion does not merely fail to speak—it affirmatively misspeaks. This essay suggests that underlying the Justices’ inability to see how standing law ought to apply to the facts in Spokeo is a failure to appreciate the power that consumer reports have over individuals’ life prospects today. Worse, the Justices’ unawareness of their own ignorance leads them to afford Congress little deference in identifying injuries occurring in our new information society. Their meta-ignorance also induces …

Aging Injunctions And The Legacy Of Institutional Reform Litigation, Jason Parkin

Elisabeth Haub School of Law Faculty Publications

Institutional reform litigation has been an enduring feature of the American legal system since the Supreme Court’s ruling in Brown v. Board of Education. The resulting injunctions have transformed countless bureaucracies notorious for resisting change, including public school systems, housing authorities, social services agencies, correctional facilities, and police departments. But these injunctions face an uncertain future. The Supreme Court has held that institutional reform injunctions must be easier to terminate than all other injunctions issued by the federal courts. Some institutional reform injunctions go unenforced or are forgotten entirely. Others expire due to sunset provisions. At the same time, doctrinal …

The Perils And Possibilities Of Refugee Federalism, Burch Elias

American University Law Review

No abstract provided.

Obama's Conversion On Same-Sex Marriage, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay explores how presidents who wish to seize a leadership role over the development of rights must tend to the social foundations of those rights. Broad cultural changes alone do not guarantee success, nor do they dictate the substance of constitutional ideas. Rather, presidential aides must actively re-characterize the social conditions in which rights are made, disseminated, and enforced. An administration must articulate a strategically plausible theory of a particular right, ensure there is cultural and institutional support for that right, and work to minimize blowback. Executive branch officials must seek to transform and popularize legal concepts while working …

Of Milk And The Constitution, Mathilde Cohen

Faculty Articles and Papers

Central cases in our constitutional law canon share an unexpected similarity: they all arose out of litigation involving cattle and milk. The Slaughter-House Cases, Nebbia v. New York, Carolene Products, and Wickard v. Filburn are familiar to generations of law students as iconic cases that address key concepts such as equal protection, the states' police powers, and Congress' commerce powers. Importantly, they also ground the Supreme Court's "dairy jurisprudence "-the series of cases about milk and cattle decided between the 1880s and the early 2000s. This Article argues that this dairy jurisprudence expresses an underlying ideology of nutrition, which glorifies …

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Faculty Articles and Papers

In recent years, the literature of constitutional originalism has adopted a new concept, "constitutional construction." This Essay critically examines that concept. Contrary to some claims, the difference between "interpretation" and "construction" is not well established in common law adjudication. Contemporary descriptions of constitutional construction end up leaving some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is unavoidable because the constitutional text is inherently incomplete. It fails to provide a decision-rule for manyindeed for most-constitutional disputes. This conclusion follows, howeveronly when the Constitution is interpreted according to the "new" or "public …

"Plausible Cause": Explanatory Standards In The Age Of Powerful Machines, Kiel Brennan-Marquez

Faculty Articles and Papers

The Fourth Amendment's probable cause requirement is not about numbers or statistics. It is about requiring the police to account for their decisions. For a theory of wrongdoing to satisfy probable cause-and warrant a search or seizure-it must be plausible. The police must be able to explain why the observed facts invite an inference of wrongdoing, and judges must have an opportunity to scrutinize that explanation.

Until recently, the explanatory aspect of Fourth Amendment suspicion-"plausible cause"-has been uncontroversial, and central to the Supreme Court's jurisprudence, for a simple reason: explanations have served, in practice, as a guarantor of statistical likelihood. …

The Elephant In The Room: What Is A Nonroutine Border Search, Anyway: Digital Device Searches Post-Riley, Eunice Park

UC Law Constitutional Quarterly

Since the Supreme Court handed down Riley v. California in 2014, we have been assured that if we are pulled over for speeding, an officer may not search our cell phone without a warrant. Another potential privacy peril, however, continues to loom: The international border. As the law currently stands, law enforcement agents may search our electronic devices, including cell phones and laptops, without any particularized suspicion, as we attempt to return into the United States from our trip abroad. Is this consistent with Riley? With the Fourth Amendment?

The wide latitude courts have given government agents to conduct border …

Memo To Cannabis Regulators: The Expressions Hair Design Decision Does Not Limit Your Broad Authority To Restrict All Forms Of Discounting, Leslie Gielow Jacobs

University of the Pacific Law Review

No abstract provided.

Book Review, Justin R. Huckaby

Journal Articles

In Conventional Wisdom: The Alternate Article V Mechanism for Proposing Amendments to the U.S. Constitution, John R. Vile discusses the thus-far unused Article V convention method of amending the U.S. Constitution. The book focuses on what an Article V convention could be and what parameters it might entail. Could such a convention be limited in scope, or must it be general in nature? Vile considers these questions and the literature behind them to develop his own interpretation of an Article V convention and how it should be implemented.

Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, Felix Mormann

Articles

This Article explores constitutional limits and regulatory openings for innovative state policies to mitigate climate change by promoting climate-friendly, renewable energy. In the absence of a comprehensive federal policy approach to climate change and clean energy, more and more states are stepping in to fill the policy void. Already, nearly thirty states have adopted renewable portfolio standards that create markets for solar, wind, and other clean electricity. To help populate these markets, a few pioneering states have recently started using feed-in tariffs that offer eligible generators above-market rates for their clean, renewable power.

But renewable portfolio standards, feed-in tariffs, and …

Constitutional Law—Fourth Amendment Search And Seizure—We've Got Ourselves In A Pickle: The Supreme Court Of Arkansas's Recent Expansion Of Fourht Amendment Rights May Have Unintended Consequences. Pickle V. State, 2015 Ark. 286, 466 S.W. 3d 410, Ben Honaker

University of Arkansas at Little Rock Law Review

No abstract provided.

Generation Gaps And Ties That Bind: Constitutional Commitments And The Framers' Bequest Of Unamendable Provisions, George Mader

Law Faculty Scholarship

“We the People.” That phrase conjures a vision of present-day U.S. citizens taking part of a continuous enterprise of constitutional development, each succeeding generation stepping into the shoes of those who framed and ratified the Constitution and, as the new performer in the role of “We the People,” reinterpreting a centuries-old role. Like those who created the role, we have power to modify the Constitution. But is each succeeding generation really allowed the same creative and expressive power to alter the role, to amend the Constitution?

The subject of this Article, in general, is the relationship between “We the People,” …

The Prophylactic Fifth Amendment, Tracey Maclin

UF Law Faculty Publications

Before Miranda was decided, the Court had not squarely confronted the issue of when a violation of the Fifth Amendment occurs. Over fifty years ago, the Court acknowledged that the right against self-incrimination has two interrelated facets: The Government may not use compulsion to elicit self-incriminating statements; and the Government may not permit the use in a criminal trial of self-incriminating statements elicited by compulsion. Back then, the “conceptual difficulty of pinpointing” when a constitutional violation occurs — when the Government employs compulsion, or when the compelled statement is actually admitted at trial — was unimportant. Chavez v. Martinez forced …