Constitutional Law Commons^™

Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke

Journal Articles

Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. …

In The Beginning There Was None: Supreme Court Review Of State Criminal Prosecutions, Kevin C. Walsh

Law Faculty Publications

This Article challenges the unquestioned assumption of all contemporary scholars of federal jurisdiction that section 25 of the Judiciary Act of 1789 authorized Supreme Court appellate review of state criminal prosecutions. Section 25 has long been thought to be one of the most important provisions of the most important jurisdictional statute enacted by Congress. The Judiciary Act of 1789 gave concrete institutional shape to a federal judiciary only incompletely defined by Article III. And section 25 supplied a key piece of the structural relationship between the previously existing state court systems and the new federal court system that Congress constructed …

The Proportionality Standard And Constitutional Culture: A Comparative Analysis Of Rights Adjudication In Canada And The French Republic, James Peter Barry

LLM Theses

It has been suggested that the migration of proportionality as a standard of constitutional review is bringing about a degree of convergence in rights norms across common and civil law jurisdictions. While scholars have noted its potential to shape rights norms in legal systems into which it is incorporated, few have analysed the ways in which proportionality is affected by the constitutional culture in which it is received. This thesis is a comparative analysis of the application of proportionality in Canada and the French Republic. It sheds light on the extent to which the operation of that standard is affected …

United States V. Batista, Constantine Loizides

NYLS Law Review

No abstract provided.

United States V. Castleman: The Meaning Of Domestic Violence, Emily J. Sack

Law Faculty Scholarship

No abstract provided.

Touching Torture With A Ten-Foot Pole: The Legality Of Canada’S Approach To National Security Information Sharing With Human Rights-Abusing States, Craig Forcese

Osgoode Hall Law Journal

In 2011, then-Public Safety Minister Vic Toews issued “ministerial directions” to Canada’s key security and intelligence agencies on “Information Sharing with Foreign Entities.” These directions permit information sharing in exigent circumstances, even where there is substantial risk of mistreatment of an individual. After a brief chorus of condemnation, the directions sank into relative obscurity while remaining part of Canada’s national security policy framework. This article aims to reignite discussion of these policies and their controversial content, relying in large measure on documents obtained by the author directly or through journalistic researchers under access to information law. First, I examine dilemmas …

Substantive Equality As Equal Recognition: A New Theory Of Section 15 Of The Charter, Anthony Robert Sangiuliano

Osgoode Hall Law Journal

This article presents a novel theory of the concept of substantive equality under section 15(1) of the Canadian Charter of Rights and Freedoms called Substantive Equality as Equal Recognition. This contribution is timely in light of the Supreme Court of Canada’s recent disagreement over the proper jurisprudential approach to interpreting section 15(1) in the 2013 case of Quebec v A. Substantive Equality as Equal Recognition holds that the purpose of section 15(1) is to ensure that the law’s application does not reflect, through its impact or effects, hierarchies of status that exist between citizens within Canadian society. The article argues …

Catalogs, Alex Stein, Gideon Parchomovsky

Faculty Scholarship

No abstract provided.

Free Trade Agreements And The Lacey Act: A Carrot And Stick Approach To Prevent And Deter Trade In Iuu Fisheries, Ginna Arevalo

Florida A & M University Law Review

The U.S. is the world’s largest importer of seafood, importing virtually every fish sold in the U.S. market. Trade statistics do not break down the percentage of imported wild harvested fish, but a recent study estimated that twenty to thirty-two percent are caught illegally. Trade in illegal, unreported, and unregulated (IUU) fisheries undermines efforts to conserve fish stocks, generates global annual losses of up to twenty-three billion dollars, and weakens economic opportunity for U.S. fishermen. Part I of this paper explains the role of different actors in the trade of duty-free IUU fish and how IUU catches may enter the …

"Fuck Your Breath": Black Men And Youth, State Violence, And Human Rights In The 21st Century, Jeremy I. Levitt

Journal Publications

This polemical essay was written at the behest of Black men and youth, and it is dedicated to African American women who relentlessly fight to safeguard the rights and well-being of Black men, even when in the process their maltreatment and welfare are grossly overlooked and forgotten. Bree Newsome's courageous and necessary removal of the confederate flag in the South Carolina State House is a prime example of such fearless activism. Joanne Deborah Chesimard aka Assata Shakur's-a former leader of the revolutionary organization known as the Black Liberation Armyascendency to the FBI's Most Wanted Terrorist list is another tragically intoxicating …

Creating Kairos At The Supreme Court: Shelby County, Citizens United, Hobby Lobby, And The Judicial Construction Of Right Moments, Linda L. Berger

Scholarly Works

Kairos is an ancient rhetorical concept that was long neglected by rhetorical scholars, and its significance to legal argument and persuasion has been little discussed. Through their use of two words for time, chronos and kairos, the Greeks were able to view history as a grid of connected events spread across a landscape punctuated by hills and valleys. In chronos, the timekeeper-observer constructs a linear, measurable, quantitative accounting of what happened. In kairos, the participant-teller forms a more qualitative history by shaping individual moments into crises and turning points. From a rhetorical perspective, chronos is more closely allied with the …

Outing Privacy, Scott Skinner-Thompson

Publications

The government regularly outs information concerning people's sexuality, gender identity, and HIV status. Notwithstanding the implications of such outings, the Supreme Court has yet to resolve whether the Constitution contains a right to informational privacy - a right to limit the government's ability to collect and disseminate personal information.

This Article probes informational privacy theory and jurisprudence to better understand the judiciary's reluctance to fully embrace a constitutional right to informational privacy. The Article argues that while existing scholarly theories of informational privacy encourage us to broadly imagine the right and its possibilities, often focusing on informational privacy's ability to …

Government Speech And Political Courage, Helen Norton

Publications

This short essay addresses Walker v. Texas Div., Sons of Confederate Veterans, Inc., in which a divided Court upheld Texas's rejection of the Sons of Confederate Veterans' request for a specialty license plate that featured the Confederate flag. Although it agrees with the majority that specialty license plates can -- and often do -- reflect the government's own expression that the government should remain free to control without running afoul of the First Amendment, it argues that the Walker Court missed an important opportunity to refine its government speech doctrine. Not only has the Court yet to settle on a …

Do Corporations Have Religious Beliefs?, Jason Iuliano

Indiana Law Journal

Despite two hundred years of jurisprudence on the topic of corporate personhood, the Supreme Court has failed to endorse a philosophically defensible theory of the corporation. In this Article, I attempt to fill that void. Drawing upon the extensive philosophical literature on personhood and group agency, I argue that corporations qualify as persons in their own right. This leads me to answer the titular question with an emphatic yes. Contrary to how it first seems, that conclusion does not warrant granting expansive constitutional rights to corporations. It actually suggests the opposite. Using the Affordable Care Act’s contraception mandate as a …

Downstream Inundations Caused By Federal Flood Control Dam Operations In A Changing Climate: Getting The Proper Mix Of Takings, Tort, And Compensation, Robert Haskell Abrams, Jacqueline Bertelsen

Journal Publications

The 2012 United States Supreme Court case Arkansas Game & Fish Commission v. United States presented the Court with a claim that the property of a landowner downstream of a flood control dam was taken without compensation as a result of non-permanent inundations of low lying portions of that parcel caused by a change in the dam's pattern of releases. The Court held that, "government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection" and must, instead, be tested according to the Court's usual precedents governing temporary physical invasions and regulatory takings. The Federal Circuit held a …

The Separation-Of-Powers And The Least Dangerous Branch, Edward Cantu

Faculty Works

A snapshot of controversies currently surrounding the President highlights a sobering, even if acceptable, reality: we live in an age of extremely amplified president power. From the executive use of military force with little or no congressional approval, to the use of executive orders to effectively make federal policy without congressional involvement, virtually all of these controversies have a common source: the Court’s relegation of enforcement of the separation-of-powers to the political process.

This Article provides an account of this relegation. It argues that all of the Court’s separation-of-powers decisions — even those seeming to strictly enforce the boundaries of …

Regulating Drones Under The First And Fourth Amendments, Marc Blitz, James Grimsley, Stephen E. Henderson, Joseph Thai

Faculty Articles

The FAA Modernization and Reform Act of 2012 requires the Federal Aviation Administration to integrate unmanned aerial vehicles (UAVs), or drones, into the national airspace system by September of this year. Yet perhaps because of their chilling accuracy in targeted killings abroad, perhaps because of an increasing consciousness of diminishing privacy more generally, and perhaps simply because of a fear of the unknown, divergent UAV-restrictive legislation has been proposed in Congress and enacted in a number of states. Ultimately, given UAV utility and cost effectiveness over a vast range of tasks, widespread commercial use seems certain. So it is imperative …

Chae Chan Ping At 125: An Introduction, Kit Johnson

Faculty Articles

In 2014, the University of Oklahoma College of Law held a symposium to mark the 125th anniversary of the U.S. Supreme Court opinion in Chae Chan Ping v. United States, 130 U.S. 581 (1889), also known as the Chinese Exclusion Case. Chae Chan Ping was a Chinese migrant who had lived in the United States for 12 years before he left the country, which he did only after obtaining legal permission to return. While Chae Chan Ping was at sea on his way back to the United States, Congress passed a law revoking reentry certificates for Chinese migrants, and Chae …

The Role Of Religion In Constitutions Emerging From Arab Spring Revolutions, Evelyn Aswad

Faculty Articles

No abstract provided.

Originalism And The Rule Of The Dead, Joel Alicea

Scholarly Articles

The conservative legal movement is in the midst of a great debate about its future. For decades, originalism — the theory that the original meaning of the Constitution is binding on today's interpreters — has been the default theory of legal conservatism, and so it remains today. But the struggle within legal conservatism is about the very meaning of originalism, as novel theories have challenged longstanding beliefs about originalism's core philosophical premises.