Constitutional Law Commons^™

The Indefinite Deflection Of Congressional Standing, Nat Stern

Scholarly Publications

Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non-enforcement of federal law. Leading scholars in the field of congressional standing immediately expressed doubt that courts would entertain a suit seeking to compel enforcement of these provisions. This Article argues that the premise that suits of this sort can be maintained rests on a tenuous understanding of the Supreme Court's fitful treatment of standing by Congress or its members to sue the Executive.

The Court has never issued …

Nothing Less Than The Dignity Of Man: The Eighth Amendment And State Efforts To Reinstitute Traditional Methods Of Execution, James C. Feldman

Washington Law Review

While lethal injection is the predominant method of executing death row inmates in America, European export bans and pharmaceutical manufacturers’ refusal to supply execution drugs has impeded the ability of states’ departments of corrections to obtain the drugs used for lethal injections. Facing a drug shortage, several death penalty states have considered legislation to reinstate the use of electric chairs, firing squads, and gas chambers. Efforts to restore traditional methods of capital punishment raise questions about whether such methods still comply with the Eighth Amendment’s prohibition against cruel and unusual punishments. The Supreme Court has observed that the Eighth Amendment …

The Power Of Dignity, Elizabeth B. Cooper

Fordham Law Review

    This Essay juxtaposes the historical and judicial equating of homosexuality and stigma with the Court’s development of a jurisprudence of dignity for gay men and lesbians, culminating in its decision in Obergefell v. Hodges. The language of Obergefell reflects an acceptance of and respect for gay men and lesbians that—regardless of one’s actual desire to marry or attitudes toward the institution of marriage—will profoundly change not only how the law treats LGB individuals, but also how we are treated by others, as well as how we perceive ourselves. I do not mean to assert that Obergefell is without its …

Up From Marriage: Freedom, Solitude, And Individual Autonomy In The Shadow Of Marriage Equality, Catherine Powell

Fordham Law Review

    Obergefell v. Hodges represents a tremendous victory for those of us who believe that each individual has the right to love, form bonds, and create families with whomever one so desires. Through Obergefell and the line of cases from Griswold v. Connecticut and Loving v. Virginia onward, the Court has now repeatedly affirmed the freedoms to plan, to choose, and to create one’s own family as fundamental.

When Congress Is Away The President Shall Not Play: Justice Scalia's Concurrence In Nlrb V. Noel Canning, Krista M. Pikus

Michigan Law Review First Impressions

On June 26, 2014, the Supreme Court unanimously decided NLRB v. Noel Canning, holding that the Recess Appointments Clause authorizes the president “to fill any existing vacancy during any recess . . . of sufficient length.” Justice Scalia filed a concurring opinion, joined by Chief Justice Roberts, Justice Thomas, and Justice Alito. While Justice Scalia “concurred,” his opinion read more like a dissent. Both the majority and the concurring opinions relied heavily on historical evidence in arriving at their respective opinions. This was expected from Justice Scalia given his method of “new originalism,” which focuses on “the original public …

Potential Of Florida's Effective Assistance Of Counsel Doctrine To Increase Parent Engagement And Promote The Well-Being Of Children, Robert Latham, Robin L. Rosenberg

Articles

No abstract provided.

Content-Based Copyright Denial, Ned Snow

Indiana Law Journal

No principle of First Amendment law is more firmly established than the principle that government may not restrict speech based on its content. It would seem to follow, then, that Congress may not withhold copyright protection for disfavored categories of content, such as violent video games or pornography. This Article argues otherwise. This Article is the first to recognize a distinction in the scope of coverage between the First Amendment and the Copyright Clause. It claims that speech protection from government censorship does not imply speech protection from private copying. Crucially, I argue that this distinction in the scope of …

The Foreign Intelligence Surveillance Act And The Separation Of Powers, Scott A. Boykin

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—Fourth Amendment—State V. Allen: An Effective Alternative To Unconstitutional "Safety Checks" On The State’S Waters, Christian Harrod

University of Arkansas at Little Rock Law Review

No abstract provided.

Towards An Institutional Challenge Of Imprisonment For Legal Financial Obligation Nonpayment In Washington State, Devon King

Washington Law Review

Imprisonment for debt is resurfacing in the United States, primarily in the form of contempt proceedings for failure to pay court judgments. Although Washington’s Constitution prohibits imprisonment for debt, the State repeatedly jails individuals for failing to pay legal financial obligations. This Comment explores the adverse consequences of this de facto debtors’ prison system, describes the strong prohibition on imprisonment for debt found in article I, section 17 of the Washington Constitution, and argues that imprisonment for failing to pay legal financial obligations violates that strong prohibition. It then discusses how case law has degraded article I, section 17, making …

Comparative Law In The Modalities Of Constitutional Argument, Robert M. Black

North Carolina Central Law Review

No abstract provided.

The Incompatibility Of Due Process And Naked Statistical Evidence, G. Alexander Nunn

Faculty Scholarship

Numerous articles and commentaries have grappled with an undeniable feeling of injustice that comes from wrestling with naked statistical evidence. Even if, from a purely quantitative standpoint, the weight of the evidence supports the imposition of liability on a defendant, the sole use of probabilities to assess this liability seems innately unfair. This tension has spawned a great debate that questions the role of naked statistical evidence in today’s legal system. Contributing to this discourse, this Note argues that, in certain circumstances, the use of naked statistical evidence constitutes a due process violation. United States circuit courts have held that …

Beyond The Visiting Room: A Defense Counsel Challenge To Conditions In Pretrial Confinement, Amber Baylor

Faculty Scholarship

Defense attorneys are well acquainted with the ill-considered and extreme use of solitary confinement in local jails. Isolation is one of many problems clients face while locked up in jail awaiting trial. Other common conditions of pretrial confinement include lack of mental health treatment, inadequate medical care, violence from corrections staff, and lack of protection from the violence of others. "Owing time", a recently dismantled practice, is just one example of jails' frivolous use of extreme isolation practices. At times, youth in the juvenile facility at Rikers were placed in solitary so often that there was a waitlist at the …

Resentencing In The Shadow Of Johnson V. United States, Leah Litman

Articles

On June 26, 2015, the Supreme Court handed down a decision many years in the making—Johnson v. United States. Johnson held that the ‘‘residual clause’’ of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. Although Johnson may have been overshadowed in the final days of a monumental Supreme Court term, the decision is a significant one that will have important consequences for the criminal justice system. ACCA’s residual clause imposed a severe 15-year mandatory minimum term of imprisonment, and many federal prisoners qualify for ACCA’s mandatory minimum. Johnson did away with ACCA’s residual clause such that defendants will no …

For Whom The Data Tolls: A Reunified Theory Of Fourth And Fifth Amendment Jurisprudence, Bryan H. Choi

Cardozo Law Review

Data privacy demands a reunified theory of the Fourth and Fifth Amendments. Data technologies allow personal information to be disembodied from physical bodies and "possessed" simultaneously by both first persons and third parties. As a result, the government has been able to use a divide-and-conquer strategy to obtain incriminating evidence alternately from the data intermediary or from the suspect.

Currently, Fourth Amendment doctrine and Fifth Amendment doctrine work at cross-purposes. The privacy community has already sounded the alarm on the "third-party doctrine," which allows the government to sidestep the Fourth Amendment when demanding evidence from third parties. But few have …

Canadian Constitutional Identities, Eric M. Adams

Dalhousie Law Journal

Constitutions are stories nations tell about themselves. Despite the famous declaration in the Constitution Act, 1867 that the "Provinces ofCanada...Desire...a Constitution similar in Principle to that of the United Kingdom," most of Canada's constitutional history can be understood as the search for a distinctly Canadian constitutional identity Canadians have always looked to their constitutional instruments to both reflect and produce a particular vision of the nation and its citizens. This article focuses on the search for Canada s constitutional identity during its first century as a nation, from Confederation until the 1960s. Drawing on a varied array of sources and …

Roberts, Kennedy, And The Subtle Differences That Matter In Obergefell, Joseph Landau

Fordham Law Review

    By upholding a nationwide right to marry for same-sex couples in Obergefell v. Hodges, the Supreme Court’s enormously significant decision resolves a major civil rights question that has percolated through our legal system and coursed through our culture for some time. The ruling was not an unforeseen outcome, but it brings welcome clarity by ensuring marriage rights for same-sex couples throughout all fifty states. Building on United States v. Windsor—a 2013 decision striking down section 3 of the Defense of Marriage Act (DOMA), which prevented gay and lesbian married couples from receiving federal benefits—Obergefell is an important and …

Sign Regulation After Reed: Suggestions For Coping With Legal Uncertainty, Alan C. Weinstein

Law Faculty Articles and Essays

This article discusses Reed v. Town of Gilbert, in which the Court resolved a Circuit split over what constitutes content based sign regulations. We note that Justice Thomas's majority opinion applies a mechanical "need to read" approach to this question, and then explore the doctrinal and practical concerns raised by this approach. Doctrinally, we explore the tensions between Thomas's "need to read" approach and the Court's current approach of treating some regulation of speech as content-neutral despite the fact that a message must be read to determine its regulatory treatment. A prime example being the Court's "secondary effects" doctrine. …

The Right To Remain Armed, Jeffrey Bellin

Faculty Publications

The laws governing gun possession are changing rapidly. In the past two years, federal courts have wielded a revitalized Second Amendment to invalidate longstanding gun carrying restrictions in Chicago, the District of Columbia, and throughout California. Invoking similar Second Amendment themes, legislators across the country have steadily deregulated public gun carrying, preempting municipal gun control ordinances in cities like Philadelphia, Atlanta, and Cleveland.

These changes to substantive gun laws reverberate through the constitutional criminal procedure framework. By making it lawful for citizens to carry guns even in crowded urban areas, enhanced Second Amendment rights trigger Fourth Amendment protections that could …

A Corporation Has No Soul, And Doesn't Go To Church: Relating The Doctrine Or Piercing The Veil To Burwell V. Hobby Lobby, Carol Goforth

South Carolina Law Review

No abstract provided.