Constitutional Law Commons^™

The Empirical Irony Of The Conflict Between Antidiscrimination And Religious Freedom, Nathan B. Oman

Popular Media

No abstract provided.

The Roberts Court And Penumbral Federalism, Edward Cantu

Catholic University Law Review

For several decades the Court has invoked “state dignity” to animate federalism reasoning in isolated doctrinal contexts. Recent Roberts Court decisions suggest that a focus on state dignity, prestige, status, and similar ethereal concepts—which derive from a “penumbral” reading of the Tenth Amendment—represent the budding of a different doctrinal approach to federalism generally. This article terms this new approach “penumbral federalism,” an approach less concerned with delineating state from federal regulatory turf, and more concerned with maintaining the states as viable competitors for the respect and loyalty of the citizenry.

After fleshing out what “penumbral federalism” is and its …

The Natural Born Citizen Clause As Originally Understood, Mary Brigid Mcmanamon

Catholic University Law Review

Article II of the Constitution requires that the President be a “natural born Citizen.” The phrase is derived from English common law, and the Supreme Court requires examination of that law to ascertain the phrase’s definition. This piece presents the pertinent English sources, combined with statements by early American jurists. Based on a reading of these materials, the article concludes that, in the eyes of the Framers, a presidential candidate must be born within the United States. The article is important because there has been a candidate who “pushed the envelope” on this question in many elections over the last …

Mccutcheon V. Fec: Sacrificing Campaign Finance Regulation In The Name Of Free Speech, Haley S. Peterson

Maryland Law Review Online

No abstract provided.

The (Hoped For) Shallowness Of Progressive Skepticism Towards Religious Freedom, Nathan B. Oman

Popular Media

No abstract provided.

Following Orders: Campbell V. United States, The Waiver Of Appellate Rights, And The Duty Of Counsel, Jacob Szewczyk

Catholic University Law Review

In the 1984 case of Strickland v. Washington, the Supreme Court announced a two-pronged test to analyze whether a criminal defendant has received ineffective assistance of counsel. Since the rule was announced, the Court has expanded Strickland’s scope to apply to analyze counsel’s review at different stages of the criminal proceeding. This Comment addresses one issue that has remained unanswered by the Supreme Court: whether counsel’s failure to file a notice of appeal, after a defendant has waived his right to appeal through a plea bargain, constitutes ineffective assistance of counsel. This Comment discusses the circuit split that …

April 20, 2015: Campaign Finance Becomes An Issue, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Campaign Finance Becomes an Issue“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Residual Impact: Resentencing Implications Of Johnson's Potential Ruling On Acca's Constitutionality, Leah Litman

Articles

In January 2015, the Supreme Court directed the parties to brief and argue an additional question in Johnson v. United States: “Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii), is unconstitutionally vague.” The order represents an unusual move because the defendant had not raised the vagueness issue and the Court issued the order after it had already heard argument on the question raised in the petition for certiorari. Commentators therefore view the order as a signal that the Court will likely invalidate the residual clause. This decision will have been several years …

Guaranteeing Republics To The Confederate States: A Guarantee Clause Justification For Lincoln’S Response To Civil War, Michael Morea

Pepperdine Law Review

There has been substantial debate over the constitutionality of Lincoln’s response to secession and his role as executive during the Civil War. While many historians and legal experts accept the theory that Lincoln, as president, was vested by Article II with power to act decisively in suppressing secession in an effort to preserve the Union, there is branch of libertarian thought that remains unconvinced that his tactics were constitutional. For example, three-time presidential candidate Ron Paul, in an interview with “Meet the Press,” stated that Lincoln should not have gone to war, arguing that Lincoln’s actions were motivated by the …

Defeating The Super Pacs That Distort Our Political Process, Bruce Ledewitz

Ledewitz Papers

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

[Un]Happy Together: Why The Supremacy Clause Preempts State Law Digital Performance Rights In Radio-Like Streaming Of Pre-1972 Sound Recordings, Julie L. Ross

Georgetown Law Faculty Publications and Other Works

Lovers of the music of Frank Sinatra, Elvis Presley, Etta James, and hundreds of other recording artists whose records were made before February 15, 1972, may soon have a hard time hearing these great artists on any satellite or Internet radio service. Recently, two federal district courts have found that state laws were violated when satellite radio broadcaster Sirius XM Radio included pre-1972 sound recordings in its broadcasts without the owners’ permission, but these courts did not consider-–and the parties did not argue-–how the Supremacy Clause applies to those state law claims. This article argues that state laws purporting to …

April 16, 2015: Taking A Break For Campaign Finance Reform, Bruce Ledewitz

Hallowed Secularism

Blog post, “Taking a Break for Campaign Finance Reform“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Ohio V. Clark: Testimonial Statements Under The Confrontation Clause, Mesha Sloss

Duke Journal of Constitutional Law & Public Policy Sidebar

In Crawford v. Washington, the Supreme Court declared that an accused right under the Constitution to confront the witnesses against him applied only to “testimonial statements.” That decision, however, did not attempt to fully define the scope of testimonial statements. This commentary analyzes Ohio v. Clark, a case which will decide the question of whether statements made by a child to a person with a duty to report allegations of child abuse are testimonial statements. In this case a young child was questioned at school by a teaching assistant about his injuries. This statement was then offered in …

Avneri V. Knesset, Hanan Melcer, Asher Grunis, Miriam Naor, Elyakim Rubinstein, Isaac Amit, Yoram Danziger, Salim Joubran, Neal Hendel, Uzi Vogelman

Translated Opinions

Facts: The petitions sought to void the Prevention of Harm to the State of Israel by means of Boycott Law, 5711-2011 (hereinafter: the Boycott Law or the Law). The Law attributes tortious liability and establishes various administrative restrictions against anyone who knowingly publishes a public call to impose a boycott on the State of Israel, as defined by the Law. The Petitioners argued that the Law was unconstitutional for infringing various constitutional rights (inter alia, freedom of expression, the right to equality, freedom of occupation), without meeting the conditions of the “Limitation Clauses” of Basic Law: Human Dignity …

Avneri V. The Knesset (Summary), Hanan Melcer, Asher Grunis, Miriam Naor, Elyakim Rubinstein, Isaac Amit, Yoram Danziger, Neal Hendel, Salim Joubran, Uzi Vogelman

Translated Opinions

This was a petition to strike down the Law for Prevention of Damage to the State of Israel through Boycott (“Boycott Law”). This 2001 law establishes tort liability for, and sets administrative restrictions on, knowingly and publicly publishing calls for a boycott on Israel. The petitioners claimed that the Boycott Law infringes on various constitutional rights, including free expression, equality, and freedom of occupation, and because it does not pass the tests articulated in the limitations clauses of Basic Law: Human Dignity and Liberty and in Basic Law: Freedom of Occupation. A divided Court upheld most of the law's provisions.

Hussein V. Cohen, Asher Grunis, Salim Joubran, Yoram Danziger, Miriam Naor, Elyakim Rubinstein, Hanan Melcer, Esther Hayut

Translated Opinions

Facts: The appeals focused upon the question of whether properties in East Jerusalem that belong to residents of Judea and Samaria are deemed “absentee property” as defined under the Absentees’ Property Law.

Held: In dismissing the appeals, the Supreme Court held that the Absentees’ Property Law applies to properties in East Jerusalem whose owners, beneficiaries or holders are residents of Judea and Samaria. However, in light of the significant difficulties attendant to implementing the Law in accordance with its language, in general, the authorities should refrain from exercising their statutory authority in regard to such properties except in the most …

Hiding In Plain Sight: Jesinoski And The Consumer’S Right Of Rescission, Milan Prodanovic

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

In The Wake Of Florida V. J.L. - When Anonymous Tips Give Police Reasonable Suspicion, Robyn Silvermintz

Touro Law Review

No abstract provided.

People V. Cole: Is The Incarceration Of An "Actually Innocent" Person Constitutional?, Aileen R. Kavanagh

Touro Law Review

No abstract provided.

Judge Levine: A Survey Of His Most Influential Court Of Appeals Decisions - 1993-2002, Jean D'Alessandro

Touro Law Review

No abstract provided.