Constitutional Law Commons^™

Public Schools: Immigration & Customs Enforcement’S Unconstitutional And Inhumane Hunting Ground, Ma Camille Briones

Roger Williams University Law Review

No abstract provided.

Imprisoned Without A Verdict: The Constitutional Crisis Of Pre-Trial Solitary Confinement, Symone R. Gibbs

Washington and Lee Journal of Civil Rights and Social Justice

Kalief Browder’s name endures as a chilling reminder of the human cost of pre-trial solitary confinement. His story reveals the constitutional paradox and moral failure at the heart of this practice: Individuals who remain legally innocent are subjected to one of the harshest punishments the state can impose. This practice strips people of their liberty twice over, first through incarceration itself, and again through prolonged isolation that inflicts devastating psychological harm. Despite its severity, the use of solitary confinement against pre-trial detainees remains largely overlooked in legal scholarship and reform, even as it undermines the presumption of innocence, exacerbates systemic …

Mexico’S Judicial Elections And The Politics Of Reform, Amanda Driscoll, Michael J. Nelson, Julio Ríos-Figueroa

Judicature International

No abstract provided.

Toys As Evidence, Randall K. Johnson

Faculty Works

This Essay asks and answers a single question, which was posed during a recent symposium at the National Museum of Toys & Miniatures. Could the study of revealed preferences, which is the idea that observed behaviors are the best indicator of one’s beliefs, improve our collective understanding about what constitutes unlawful discrimination in certain U.S. markets? A possible answer, which is informed by the Brown v. Board of Education decision, is the study of revealed preferences may improve our collective understanding for three reasons.

One reason is the study of revealed preferences provides a window into how some producers and …

A History Of Vacatur, Benjamin B. Johnson

UF Law Faculty Publications

Vacatur, a seemingly routine appellate tool, has evolved into one of the Supreme Court’s most potent instruments for declaring law. This Article offers the first comprehensive historical account of vacatur, tracing its roots from English and early American practice through its twentieth-century transformations to its contemporary uses. Historically, courts used vacatur to manage dockets, correct procedural irregularities, or enforce reversals on the merits. Modern usage has departed markedly from these roots. The Court now frequently employs vacatur to declare binding legal rules without issuing judgments, effectively circumventing traditional limits on judicial power. Taking seriously the Court’s own insistence on history …

Beyond Sharenting, Stacey B. Steinberg

UF Law Faculty Publications

Sharenting—the practice of parents sharing information about their children online—has become mainstream in American society. While most forms of sharenting may be considered benign or even beneficial, some parents harm or exploit their children when sharing online. For example, “mom-influencers” often violate their children’s privacy in their attempts to attract followers to their social media accounts. While traditional forms of parental sharing raise privacy concerns, we are only beginning to understand the dangers and impacts of widespread exposure of children on social media.

This Article is the first to propose a welfare model of child protection to address exploitative and …

Incentivized Delegation In Corporate Criminal Investigations: State Action, Unconstitutional Conditions, And Fifth Amendment Erosion., Ying Zhou

American University Business Law Review

This Article identifies and critiques “incentivized delegation,” an enforcement regime in which the Department of Justice (DOJ) conditions prosecutorial leniency on corporations’ completion of specified, prosecution-oriented, internal investigations of employee misconduct. While courts readily find state action when the government formally delegates investigative functions, they have not squarely addressed whether corporate investigations undertaken to secure prosecutorial leniency—without explicit governmental direction—should likewise trigger state-action scrutiny. United States v. Coburn illustrates the blind spot: by insisting that state action requires overt governmental direction and control, the decision exposes a fundamental failure to appreciate how the government can embed investigative mandates within the …

The Ten Commandments, Stripped Of Slavery, Exodus & Jubilee, Christopher D. Hampson

UF Law Faculty Publications

The Ten Commandments are back on public classroom walls and in federal court, after several states passed new laws requiring school districts to post the text. As attorneys, judges, and amici debate whether First Amendment law has changed enough since Stone v. Graham in 1980 to allow the posting of the ancient religious text, this Essay comes at the situation from an entirely different angle. The precise text proposed by the states might be a good example of “ceremonial deism,” but it removes biblical law from biblical narrative – and, in doing so, unsets the Ten Commandments from their original …

The Constitution Of Conversations: The Enduring Legacy Of Sandra Day O'Connor, Derek A. Webb

Scholarly Articles

Soon after Justice O'Connor's passing in December 2023, commentators and court watchers across the ideological spectrum questioned whether anything in the legacy of the first woman to serve on the Supreme Court— once called “the most powerful woman in Washington, D.C.”—remained intact.

Drawing upon speeches and interviews she gave over her entire forty-year public career, I argue that O’Connor’s deepest and most enduring contribution was a subtle, compelling, interconnected, and yet today largely countercultural vision of the Constitution as a site of multiple conversations, a “Constitution of Conversations,” that took place variously within institutions, across institutions, and across time. More …

Rethinking The Fund Termination Sanction, Samuel R. Bagenstos

Articles

Title VI of the Civil Rights Act of 1964 is often referred to as the “sleeping giant” of civil rights law. It is a “giant” because it prohibits any form of race discrimination engaged in by any recipient of federal financial assistance, and because the remedy set forth in the statute for a violation is the termination of federal funds. And it is “sleeping” because, except for a brief moment during the desegregation era, the federal government had never seriously attempted to terminate a recipient’s federal grants for a violation of the statute. Nor had the federal government seriously attempted …

The People, The Branches, And The Pearl Of Independence, Brian C. Murchison

Scholarly Articles

What will be the fate of the independent agencies?  Since 1887, Congress has seen fit to address an array of contemporary issues by creating expert federal agencies, such as the Interstate Commerce Commission, the Federal Trade Commission, the National Labor Relations Board, and others.  The principal officers of these agencies are appointed by the President on advice and consent of the Senate, serve limited staggered terms, are bipartisan in the sense that only a bare majority of the agency’s officers can be members of the same political party, and are “independent” in the sense that the officers are removable only …

50 State Survey On “Harmful To Minors” Laws And Library Exemptions/Defenses, Rebecca A. Mattson, Shay Elbaum, Amanda Mccormick, Dan Sawall, Victoria Tokar, Eric Yap

Faculty Scholarship

No abstract provided.

Behemoth Unbound: An Internal Critique Of Carl Schmitt’S Nazi-State Structure, Zaynamin Murtaza

CMC Senior Theses

This paper offers an internal critique of Carl Schmitt's Nazi-era state theory from the perspective of the counterrevolutionary political-theological tradition to which Schmitt belongs. Using Schmitt's political-theological method which holds that all political theories have a systematic theological structure, the paper argues that Schmitt's 1933 turn to National Socialism contradicts this tradition. The paper proceeds in five sections. The first establishes the political-theological framework that will be utilized throughout the paper. The second develops Schmitt's concept of the katechon—the restrainer of lawlessness drawn from Christian eschatology— which he uses as a model for his theory of the state. The …

Balancing The Scales Of Justice: The Unconstitutionality Of Marital Rape In India, Pallavi Raju

CMC Senior Theses

Marital rape remains an unpunished crime in India, despite decades of dispute and litigation. This thesis explores the question of why the state continues to retain the marital rape exception within the Indian criminal code, even though it commits to combat gender based violence in other areas of justice. The research begins with a broader understanding of privatization of women’s rights in the international sphere and culturally sanctioned violence to protect the institution of marriage. With a focus on the legal justifications and language of Indian court cases, this thesis determines that judges adjudicate on gender justice inconsistently. Attempting to …

The Reception Of International Human Rights Law In Charter Litigation: "Not A Box Of Chocolates" But You Still "Never Know What You're Gonna Get", Karinne Lantz

Articles, Book Chapters, & Popular Press

This article explores the reception of international human rights law(IHRL)in Canada. Focusing on the Charter context, it demonstrates that how IHRL applies in Canada continues to lack clarity despite repeated (and recent) efforts by the Supreme Court of Canada to provide it. This article argues that this lack of clarity is an important matter for the Court to address, particularly as IHRL is increasingly being invoked before courts and other tribunals around the world. It argues that the Court should adopt a methodology that: (i) endorses the “Dickson Doctrine,”according to which the “minimum protection approach”is robustly applied for international human …

The Crisis Of Appropriations Law, Samuel R. Bagenstos

Articles

Appropriations law is a unique body of federal law.  Appropriations law imposes its own somewhat baroque set of statutory interpretation principles, approves of very broad delegations to the Executive Branch without meaningful limiting principles, and is often exempt from judicial review.  But perhaps that is all about to change.  Donald Trump’s historically aggressive challenge to Congress’s power of the purse has spurred an unusually large volume of exceptionally high-stakes appropriations law litigation. 

The potential implications go beyond the high-profile issues such as enforcement of the Impoundment Control Act.  In general, the unusual features of appropriations law are built on a …

System Disparities: Racial Criminalization And The Risk Of Coerced And False Confessions In Youth, Cynthia J. Najdowski

Psychology Faculty Scholarship

Black youth may be even more vulnerable than other youth to admitting to crimes they did not commit in the context of police interrogations. In support, analysis of data from the National Registry of Exonerations indicates that 65% of people who were wrongfully convicted on the basis of false confessions they gave when under 18 years old are Black, whereas only 14% of the U.S. population is Black. In this chapter, I seek to understand the overrepresentation of Black youth in samples of juvenile false confessors by examining the cultural stereotype about Black criminality in relation to both investigators and …

The Forgotten Income-Attribution Power, Alex Zhang

Faculty Articles

Economic inequality stands at record levels, and constitutional law haunts egalitarian reform. In 2024, the Supreme Court decided the latest contest. Moore v. United States rebuffed an attempt to sharply limit the federal taxing power, as a razor-thin majority upheld Congress’s attribution of foreign corporations’ income to domestic shareholders. But four Justices criticized the reasoning of the majority, faulting its use of a fabricated doctrine.

This Feature provides a systematic account of Congress’s income-attribution power. It excavates overlooked litigation materials and case law from the infancy of the current federal income tax. In the 1920s and 1930s, litigants attacked, on …

Popular Constitutionalism In A Populist Age, Thomas G. Donnelly

Law Faculty Publications

Popular constitutionalism burst onto the scene as a challenge to the constitutional authority of the Supreme Court. Decades later, popular constitutionalists remain susceptible to one of the earliest (and most potent) critiques of their project—the charge that they have done far too little to explain how their theory might work in practice. With the rise of modern populism, it’s also fair to ask whether popular constitutionalism is an approach that’s capable of meeting the challenges of the current constitutional moment. In this Article, I offer a new vision for popular constitutionalism—one that shows how the theory might work in practice, …

Foreword, Patricia B. Barnett

Journal of Race, Gender, and Ethnicity

No abstract provided.