Constitutional Law Commons^™

Restoring Nobility To The Constitution: A Modern Approach To A Founding Principle, Marc A. Greendorfer

ConLawNOW

It is common lore in the United States that our federal government was structured with a number of checks and balances that ensure, at a minimum, the equal application of law among all citizens. While there are indeed such structural mechanisms embedded in the Constitution, they don’t always work as intended and, in fact, at times they fail utterly to prevent blatant abuses of the rule of law by the vast and growing political class in America. Our political office holders (and their favored constituents) can, and do, pick and choose which laws apply to them and, more importantly, which …

Newsroom: Goldstein On Militia Occupation, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Conservatives, The Supreme Court Of Canada, And The Constitution: Judicial-Government Relations, 2006–2015, Christopher Manfredi

Osgoode Hall Law Journal

Three high-profile government losses in the Supreme Court of Canada in late 2013 and early 2014, combined with the government’s response to those losses, generated a narrative of an especially fractious relationship between Stephen Harper’s Conservative government and the Court. This article analyzes this narrative more rigorously by going beyond a mere tallying of government wins and losses in the Court. Specifically, it examines Charter-based invalidations of federal legislation since 2006, three critical reference opinions rendered at the government’s own request, and two key judgments delivered in the spring of 2015 concerning Aboriginal rights and the elimination of the long-gun …

As Good As It Gets? Security, Asylum, And The Rule Of Law After The Certificate Trilogy, Graham Hudson

Osgoode Hall Law Journal

This article uses constitutional discourses on the legality of security certificates to shed light on darker, neglected corners of the security and migration nexus in Canada. I explore how procedures and practices used in the certificate regime have evolved and migrated to analogous adjudicative and discretionary decision-making contexts. I argue, on the one hand, that the executive’s ability to label persons security risks has been subjected to meaningful constraints in the certificate regime and other functionally equivalent adjudicative proceedings. On the other hand, the ability of discretionary decision makers to deport individuals who pose de jure security risks to face …

January 3, 2016: Is Life Inherently Tragic?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Is Life Inherently Tragic?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 2, 2017: This Is What Happens When You Vote Republican, Bruce Ledewitz

Hallowed Secularism

Blog post, “This is What Happens When You Vote Republican“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Threat Of Independent Political Spending To Democratic Life—And A Plan To Stop It, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

Sinclair's Nightmare: Slapp-Ing Down Ag-Gag Legislation As Content-Based Restrictions Chilling Protected Free Speech, Jeffrey Vizcaino

Student Works

Over a century after its publication, Upton Sinclair’s 1906 novel, The Jungle, remains one of the most impactful pieces of investigative literature ever published. During 1904, in an effort to expose the heinous working conditions of Chicago’s meat packing industry, Sinclair went under disguise as a factory worker for seven weeks. While Sinclair’s purpose for The Jungle was to propel federal reform against inhumane work conditions, it was the first-hand depiction of the callous slaughtering and unsanitary processing of meat products which led to national uproar. Gaining the attention of national political leaders, including President Theodore Roosevelt, The Jungle …

Religious Discrimination Based On Employer Misperception, Dallan F. Flake

Law Faculty Scholarship

This Article addresses the circuit split over whether Title VII prohibits discrimination based on an employer's misperception of an employee's religion. This is an especially critical issue because misperception-based religious discrimination is likely to increase as the United States continues to experience unprecedented religious diversification. Some courts read Title VII narrowly to preclude such claims, reasoning that the statutory text only prohibits discrimination based on an individual's actual religion. Other courts interpret the statute more expansively in concluding such claims are cognizable because the employer's intent is equally malicious in misperception and conventional discrimination cases. I argue that the statutory …

Brief For Catholics For Choice Et Al. As Amici Curiae Supporting Respondents, Zubik V. Burwell, Leslie C. Griffin

Supreme Court Briefs

No abstract provided.

Youthful Offenders And The Eighth Amendment Right To Rehabilitation: Limitations On The Punishment Of Juveniles, Martin R. Gardner

Nebraska College of Law: Faculty Publications

To understand the potential scope of the Court's implicit conclusion that the punishment of adolescents is unconstitutional unless a meaningful opportunity for rehabilitation is afforded, it is necessary to carefully distinguish and clarify the distinction between the conflicting concepts of punishment and rehabilitation. I therefore begin Part I by analyzing this distinction. Since the logic of the Court's decisions impacts the punishment of adolescents in both the juvenile and criminal justice contexts, I contrast the two systems in Part II by tracing the development of the juvenile court movement from its original rehabilitative origins towards an increasingly punitive model, dispensing …

Justice Scalia And The Rule Of Law: Originalism Vs. The Living Constitution, Richard F. Duncan

Nebraska College of Law: Faculty Publications

Justice Antonin Scalia's sudden death in February, 2016, was a great loss for his family, a great loss for his friends, and a great loss for the "Written Constitution" of the United States of America. We will have no more of his brilliant, witty, and pugnacious judicial opinions. Instead, we will have to settle for the body of work he left behind as his legacy. But, as one commentator has said, his opinions are "so consistent, so powerful, and so penetrating in their devotion to the rule of law"—the real rule of law, not the political decrees of judges creating …

Inheritance Law And The Marital Presumption After Obergefell, Paula A. Monopoli

Faculty Scholarship

No abstract provided.

Muscle Memory And The Local Concentration Of Capital Punishment, Lee B. Kovarsky

Faculty Scholarship

No abstract provided.

Quick And Dirty: The New Misreading Of The Voting Rights Act, Justin Levitt

Florida State University Law Review

The role of race in the apportionment of political power is one of the thorniest problems at the heart of American democracy, and reappears with dogged consistency on the docket of the Supreme Court. Most recently, the Court resolved a case from Alabama involving the Voting Rights Act and the appropriate use of race in redistricting. But though the Court correctly decided the narrow issue before it, the litigation posture of the case hid the fact that Alabama is part of a disturbing pattern. Jurisdictions like Alabama have been applying not the Voting Rights Act, but a ham-handed cartoon of …

Baltimore's Monumental Question: Can The Heightened Social Conscience Against The Confederacy Rewrite The Constitutional Right To Due Process?, Blake Alderman

University of Baltimore Journal of Land and Development

Monuments are preserved in order to remember, educate the public on, and acknowledge the monuments’ historical significance. Maryland’s monuments are designated by two authorities: the Board of the Maryland Historical Trust and smaller municipal commissions.1 The Board examines local monuments to be submitted to the national registry, whereas the smaller commissions are appointed and operate to preserve local Baltimore monuments.2 On June 30, 2015, Baltimore City Mayor Stephanie Rawlings-Blake announced the creation of a Special Commission to review all Baltimore City Confederate historical monuments.3

The Commission’s appointment stems from a recently heightened national awareness of racism embedded in government culture. …

A "Checklist Manifesto" For Election Day: How To Prevent Mistakes At The Polls, Joshua A. Douglas

Florida State University Law Review

Mistakes happen—especially at the polls on Election Day. To fix this complex problem inherent in election administration, this Article proposes the use of simple checklists. Errors occur in every election, yet many of them are avoidable. Poll workers should have easy-to-use tools to help them on Election Day as they handle throngs of voters. Checklists can assist poll workers in pausing during a complex process to avoid errors. This is a simple idea with a big payoff: fewer lost votes, shorter lines at the polls, a reduction in post-election litigation, and smoother election administration. Further, unlike many other suggested election …

The Nineteenth Amendment Enforcement Power (But First, Which One Is The Nineteenth Amendment, Again?), Steve Kolbert

Florida State University Law Review

No abstract provided.

The Constitutional Nature Of The United States Tax Court, Brant J. Hellwig

Scholarly Articles

Is the United States Tax Court part of the Executive Branch of government? One would expect that question would be capable of being definitively answered without considerable difficulty. And as recently expressed by the Court of Appeals for the District of Columbia Circuit, that indeed is the case. In the course of addressing a challenge to the President's ability to remove a judge of the Tax Court for cause on separation of powers grounds, the D.C. Circuit rejected the premise that the removal power implicates two branches of government: "the Tax Court exercises Executive authority as part of the Executive …

The Five Days In June When Values Died In American Law, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.