Constitutional Law Commons^™

Coping With A Court One Disagrees With, Randy E. Barnett, Josh Blackman

William & Mary Bill of Rights Journal

Part I of this Essay focuses on our approach to teaching the constitutional canon. This part is adapted from the Preface to our constitutional law casebook. Part II traces the evolution of our casebook from the First Edition to the Fourth Edition, and the forthcoming Fifth Edition. We demonstrate that the constitutional canon has changed, but remains remarkably stable. Part III addresses how we, and other like-minded law professors, managed to teach decisions that we fundamentally disagreed with.

This abstract has been taken from the authors' introduction. 

What Should A Constitutional Law Casebook Be?, William Funk

William & Mary Bill of Rights Journal

What is the purpose of a “casebook”? It is not a “hornbook,” designed to summarize or explain the law in a specific area, generally aimed at law students or lawyers to provide a straightforward statement of the law. It is not a “treatise,” a comprehensive, systematic exposition of the law in a particular field, involving an in-depth analysis and interpretation of the law. And it is not a “study aid,” supplementary material designed to help students do better in their classes. It is the book used by professors in their classes. For professors of constitutional law, it is a tool …

Intellectual Integrity, Collaboration, And The Market, Mark Tushnet

William & Mary Bill of Rights Journal

My reflections are those of someone who co-edited/co-authored two casebooks that were commercially and intellectually successful and one that was intellectually but not commercially successful. I start with the assumption that people decide to do a casebook because they find that existing materials don’t do some things they think ought to be done in the course (and do some things that aren’t really necessary for teaching purposes). That is, doing a casebook is at the outset an intellectual project.

Executing that project runs up against some constraints almost immediately. A simple one is that you might well think that you …

What Belongs In A Constitutional Law Casebook?, Ernest A. Young

William & Mary Bill of Rights Journal

This Essay argues that constitutional law cannot (and should not) be an autonomous subject within the legal curriculum. This argument echoes a long-standing debate about whether law itself is an autonomous scholarly discipline. The answer to that question is surely, as Allan Farnsworth put it, “sometimes YES and sometimes NO.” But this Essay does not focus on law’s autonomy from other disciplines, such as political science, psychology, or economics. Rather, I consider the extent to which constitutional law should overlap with other legal subjects, such as legal history, administrative law, or statutory interpretation. My conclusion is that, at least in …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

June 30, 2023: Resurrections And Bad Omens Of A Nadir Court, Zamir Ben-Dan

UC Law Constitutional Quarterly

June 29, 2023 was monumental for racial justice advocates and scholars; the U.S. Supreme Court issued a major decision that eviscerated affirmative action while declaring itself a vanguard of racial equality. The Court’s race-related juridical activities on the following day, June 30th, received far less attention. On June 30, 2023, the Court denied certiorari in five cases directly implicating race. Those denials of certiorari generated five opinions, two concurring in the denial and three dissenting from denial. These five opinions should have created as much buzz as the Court’s affirmative action decision the day prior; examined together, they tell a …

The Role Of Procedural Due Process In Equal Protection And Affirmative Action Analysis: The Narrowly Tailored Prong, Simona Grossi

UC Law Constitutional Quarterly

The Supreme Court’s decision in Students for Fair Admissions v. Harvard College marked the end of affirmative action as traditionally practiced in higher education admissions, forcing universities to seek alternative legal pathways for fostering diversity. At the same time, the Trump administration’s executive orders targeting DEI initiatives have exacerbated the legal uncertainty, raising critical questions about how institutions can preserve fairness in admissions while withstanding both judicial and political scrutiny.

This article argues that Procedural Due Process—when read in conjunction with Equal Protection—provides a constitutionally sound and structurally fair framework for admissions policies that align with strict scrutiny while preserving …

Red, White-, And Blue-Collar Crime: Federal Sentencing Practices Among White-Collar And Blue-Collar Offenders, Henna Judge

Fordham Law Review

Under the current federal sentencing regime, district courts exercise immense amounts of discretion when sentencing. Though strict adherence to the U.S. Sentencing Commission Guidelines (the “Guidelines”) was once mandatory, courts must now use these Guidelines as an advisory starting point and make a series of fact-specific determinations when sentencing a defendant. Though judicial discretion in this realm aids in preventing undue reliance on Guidelines-range recommendations that can lack nuance, it also invites bias.

In recent years, scholars and courts alike have called attention to a potential disparity in the way blue-collar and white-collar offenders are sentenced. This Note examines relevant …

Federal Courts, Class Actions, And The Jurisdictional Void, Courtney T. Welch

Fordham Law Review

To invoke the jurisdiction of a federal court, a plaintiff must satisfy the requirements of Article III. Among other things, Article III requires a plaintiff to have and maintain personal stake throughout the lifespan of the litigation. Though a simple premise, this constitutional requirement has a complicated history. This is especially true as applied to class action lawsuits, where plaintiffs bring claims both on behalf of themselves and other harmed individuals.

The U.S. Supreme Court has applied flexible rules to some—but not all—of Article III’s requirements in class actions. The breadth of this flexibility, though, is uncertain. Accordingly, so too …

Clark Memorandum: Fall 2025, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Our Constitutional Anchor
• Divine Law
• The Courage of Our Convictions
• Our Call to Action

Opioids And Oblivion: Corporate Bankruptcy And The Erosion Of Accountability In Big Pharma, Ying Yuan

Washington Law Review

In June 2024, the United States Supreme Court ruled in Harrington v. Purdue Pharma that nonconsensual releases for nondebtors are unconstitutional. The decision marked a key development in mass tort litigation involving Purdue Pharma, the company at the center of the opioid crisis. The Sackler family sought to use Purdue’s bankruptcy proceedings to shield themselves from liability, but the Court’s ruling invalidated the use of nondebtor releases to protect third parties from claims without the full consent of affected parties. While the ruling strengthens creditor protections, it creates uncertainty regarding how mass tort bankruptcies can efficiently compensate victims, particularly in …

Self-Determination Through Children's Rights: Resisting The Paradoxical Pretext Of Parents' Rights Legislation, Jeremiah Chin

Washington Law Review

Washington state law balances the interests of parents and the state in education, healthcare, and the general wellbeing of children. Despite the fact that children are at the center of emerging controversies, children’s rights are rarely discussed in state legislation debating the obligations and relationships between the state of Washington and parents. In education, for example, RCW 28A.605.005 finds “[p]arents are the primary stakeholders in their children’s upbringing.” While this may be true relative to the state, it overlooks the fact that children are the primary actors, agents, and rights bearers in their own personhood. This Article therefore considers ongoing …

From The Bench To The Feed: Conflict Between Public Official Accounts And The First Amendment, Betty Yu

Washington Law Review

Imagine one day waking up, opening Facebook, and discovering that the official White House account blocked you because you left a comment expressing a viewpoint. In this case, your First Amendment right to free speech would most likely be violated. However, what happens if your local official blocks you or deletes your comments? Are your First Amendment rights violated? Well, it depends.

Historically, public officials have used public forums such as town halls to meet with citizens and answer questions. However, as social media platforms like X and Facebook have become increasingly crucial tools for communication, the distinction between personal …

A Dangerous Challenge To The Constitutionality Of The Felon-In-Possession Statute: United States V. Bullock, Matthew Matherne

MC Law Review

In United States v. Bullock, Judge Carlton Reeves held that the federal felon-in-possession statute was unconstitutional as applied to Mr. Bullock. Although Mr. Bullock had been previously convicted of multiple violent felonies involving a firearm, including one that resulted in the death of an individual, Judge Reeves dismissed the charges because the government failed to establish a historical tradition of prohibiting felons from possessing firearms. Judge Reeves’ determination that § 922(g)(1) is unconstitutional as applied to Mr. Bullock is a decision that is not only “dangerous” to society, but it contradicts the historical tradition of firearm regulation in America. …

Mississippi Redistricting And The Voting Rights Act: An Historical Supplement, Leslie H. Southwick

MC Law Review

No abstract provided.

Divine Detachment: Beachy V. Assemblies Of God And A New Interpretation Of The Ecclesiastical Abstention Doctrine, Juarez Mcleod Johnson

MC Law Review

In the landmark case of Beachy v. Mississippi District Council for Assemblies of God, the Mississippi Supreme Court redefined its interpretation of the ecclesiastical abstention doctrine—marking a pivotal shift in church-state jurisprudence. Traditionally, this doctrine instructed courts to defer to the highest internal authority of a church when deciding disputes within hierarchical religious organizations. However, the court’s decision in Beachy significantly departed from this principle by designating the local pastor and congregation as the supreme authority over local church affairs, even within a hierarchical structure.

This Casenote explores the profound implications of the Supreme Court’s ruling, focusing on its …

Auer Deference: He Who Writes The Law Must Not Adjudge Its Violation, William G. Kennedy

MC Law Review

This Comment explores Auer deference and its application to the Sentencing Guidelines, the Sentencing Commission, and its commentary. Auer deference, in its simplest form, requires courts to give controlling weight to an agency’s interpretation of its own regulations unless it is plainly erroneous or inconsistent with the regulation. Following the Court’s decision in Kisor—expressly limiting Auer’s application, the circuit courts have disagreed on the applicability of Auer to the Sentencing Commission’s commentary regarding career offender designation. This disagreement begs for an appearance before the Court of Last Resort, but until that day, the courts must rigidly apply Kisor to …

Repealing Reorgs, Reuven S. Avi-Yonah

Law & Economics Working Papers

Under the Supreme Court's opinion in Moore, it is likely that realization is essential for defining income as a constitutional matter. Therefore, when a transaction involves realization, it should presumptively be taxable unless there are very good reason for nonrecognition of gain. Given this reality, there are good reasons for Congress to consider repealing tax-free reorganizations and the other nonrecognition rules of the corporate tax, primarily for non-tax reasons. Acquisitive A, B, and C reorganizations and acquisitive section 351 transactions typically are used for large public corporations to acquire startups, which encourages monopolies. Triangular mergers raise corporate governance concerns …

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Fordham Law Review

One hundred and twenty years ago, in 1905, the U.S. Supreme Court rendered one of the single most notorious opinions in history, striking down a New York labor law for violating the right to contract—a right found nowhere in the text of the Constitution. Though the era of Lochner v. New York is well past us, the judicial impulses that gave rise to the case remain. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the president, Congress, federal agencies, and the courts.

Bringing together two …

A True Fact Should Not Be Controversial: Analyzing The Zauderer Standard And Defining “Uncontroversial”, Edina Hartstein

Fordham Law Review

In Zauderer v. Office of Disciplinary Counsel, the U.S. Supreme Court recognized an exception to the compelled speech doctrine that allowed the government to regulate commercial speech if it was “purely factual and uncontroversial.” However, the Court failed to define what it meant for a disclosure to be “purely factual” or what it meant to be “uncontroversial.” This lack of clarity led to lower courts inconsistently applying the Zauderer standard. In 2018, the Supreme Court decided National Institute for Family Life & Advocates v. Becerra (NIFLA), which held that the Zauderer standard cannot apply when the disclosure …