Constitutional Law Commons^™

The Public Franchise Tradition As A Limit On Patent Takings, Laura E. Dolbow

Publications

A longstanding debate exists over whether patents are forms of “private property” that the Takings Clause protects. Recently, in a different context, the Supreme Court stated that a patent is a specific form of property: a public franchise. Several scholars have argued that the public franchise characterization means patents are not protected by the Takings Clause at all. This Article identifies another potential implication of the public franchise framing. It argues that even if patents are viewed as protected by the Takings Clause, the public franchise framing suggests that the scope of that protection should be quite narrow.

To explore …

Prisoners And Choice Democracy, Eileen Prescott, Michelle Theer

Journal of Race, Gender, and Ethnicity

This Article considers how eliminating meaningful choices inside prisons harms individuals and obstructs reintegration efforts. While any individual restrictions on incarcerated people may seem minor—such as limitations on the food available in the commissary— they accumulate to a point where people adopt passive, compliant behaviors and attitudes that are adaptive inside yet maladaptive outside the prison walls. Thus, we argue that even modest improvements in prisoner autonomy could reduce recidivism and achieve the public safety goals of incarceration.

The Impact Anti-Abortion Laws Will Have On Domestic Violence Victims Post-Dobbs Decision, Elissa Schlissel Goldberg

Journal of Race, Gender, and Ethnicity

This paper will focus on the impact a total or near-total abortion law may have on domestic abuse and how male abusers may attempt to seek control by taking advantage of the law. This paper will first address domestic violence, specifically focusing on the different ways domestic violence can manifest and their definitions. Next, the paper will shift focus to abortion and how states have tried to limit a woman’s ability to access abortion. The paper will then move to focus on the connection between domestic violence and abortion, looking into the data from past researchers and the trends that …

Balancing The Scales Between The Evolution Of Affirmative Action Policies And The Equal Protection Clause, Jesicca Patel

Journal of Race, Gender, and Ethnicity

This article argues that the Supreme Court’s ruling ending affirmative action was correct. Affirmative action does not solve the underlying issues of racial inequality and systemic oppression. Instead, affirmative action undermines the success of minorities and inflames racial tensions. This article is divided into Five Parts. The first part examines U.S. Supreme Court precedent addressing the Court’s decisions in upholding affirmative action policies in educational settings before Students for Fair Admissions, Inc. v. President and Fellows of Harvard College. The second part discusses Students for Fair Admissions, Inc. v. President and Fellows of Harvard College and why the Supreme Court …

Constitutional Structures In Private Law And The Example Of Waste Law, Jill M. Fraley

Scholarly Articles

This Article proposes three criteria for when a private law mechanism performs a structural constitutional function: when it constrains present authority in the name of future stability, when it disperses enforcement to avoid centralized authority, and when it has structural entrenchment to avoid ordinary displacement. While many private law doctrines contain constitutional resonances or echo rights, the core of constitutional law is the power structure—a precondition for the protection of those rights. Constitutional structures have three key components: self-binding through time, separation and diffusion of power, and entrenchment beyond ordinary politics. For a private law doctrine to do more than …

History And Tradition In First Amendment Intellectual Property Cases: A Critique, Rebecca Tushnet

Marquette Intellectual Property & Innovation Law Review

This Article examines the increasing reliance on "history and tradition" as a method of constitutional analysis in First Amendment cases involving intellectual property. The author argues that, although the Supreme Court has recently embraced this methodology in other constitutional contexts, particularly Second Amendment jurisprudence, it has long relied on similar reasoning to uphold intellectual property rights against First Amendment challenges. Through an analysis of cases involving the right of publicity, copyright, and trademark law, the Article contends that the Court has used historical analogies to justify expanding intellectual property protections while giving insufficient consideration to their impact on free expression. …

Justifying The Fourth Amendment, Daniel Epps

Vanderbilt Law Review

Why does the Fourth Amendment belong in the Constitution? This question is not whether society should impose some legal restraints on government searches and seizures. Rather, why should such protections reside in our national charter, superior to other forms of law and insulated from change via ordinary majoritarian political processes? Despite major disputes about the Fourth Amendment's content, Fourth Amendment theorists rarely ask this question. Almost all agree that the Fourth Amendment's constitutional protections are critically important-even if no one can agree exactly what those protections are.
This Article seeks a justification for the Fourth Amendment-the reason why search-and-seizure protections …

S.F. 2200 (2025) - Permission To Change: Minnesota's Illusory Privilege Reform In A Post-Notorious Rbg Era, A.G. Summers

Mitchell Hamline Law Journal of Public Policy and Practice

No abstract provided.

Reclaiming The Constitution: "For There Is Always Light, If Only We're Brave Enough To See It", Palma Joy Strand, Gregory J. O'Meara S.J.

Marquette Law Review

As citizens—and as lawyers—we are schooled to view the U.S. Constitution as what—indeed—“constitutes” us as a nation and as a people. As lawyers— and as citizens—we are also schooled to understand that the Constitution is law and that its meaning is to be ascertained through the process of law and by lawyers and judges. This Article builds on a popular constitutionalism frame to describe the profound limitations of restricting constitutional meaning-making to a legal enterprise performed primarily by judges—especially in regard to positive rights written into the Constitution but under-protected in constitutional law. In addition, litigation’s either–or mindset has come …

The First Amendment Right To Privacy, Alex Chemerinsky

Marquette Law Review

The First Amendment is often considered to be in tension with privacy. This

Article is about the contexts in which it is not.

Although freedom of speech can pose challenges for privacy governance,

privacy is a core First Amendment value. Many important First Amendment decisions were motivated more by intuitions about privacy than any other interest. For each primary First Amendment liberty—the rights to speak, listen, associate, and practice religion—the Supreme Court has recognized not only a

substantive liberty but also the right to exercise it privately.

But although expressive privacy is an important First Amendment value, it

remains underrecognized, …

Re-Evaluating Deshany In An Era Of Gun Violence And Government Inaction, Bonnie Carlson

Marquette Law Review

In DeShaney v. Winnebago County Department of Social Services, the Supreme Court held that the State has no constitutional duty to protect individuals from violence committed by private third parties. An exception to this rule exists when the State has a special relationship to the plaintiff immediately preceding the harm. The DeShaney Court sharply proscribed the scope of the special relationship exception, holding that it only applies when the State has a plaintiff in custody. This effectively closes the door on relief for the vast majority of 42 U.S.C. § 1983 plaintiffs.

This Article proposes a new special relationship test …

Back To The Fourth Amendment, Shea Daley Burdette

Marquette Law Review

Does the Fourth Amendment protect against governmental seizures of an individual’s digital property? The answer depends on whether government action constitutes a meaningful interference with digital property. Back to the Fourth Amendment considers the Founders’ intentional choice to use two separate words, search and seizure, to protect against governmental overreach. The Article advances an approach to the seizure analysis that protects against governmental seizures of digital property—by encouraging the Court to look at whether the government access meaningfully interfered with an owner’s right

to exclude, historically recognized as a possessory interest.

The Fourth Amendment was adopted in response to “reviled …

Gerrymandering The Electoral College, Henry S. Noyes

Marquette Law Review

In Rucho v. Common Cause, the Supreme Court held that partisan gerrymandering is a nonjusticiable political question. The Court’s opinion admits that “[e]xcessive partisanship in districting leads to results that reasonably seem unjust.” The injustice is the ability of the majority party to use political gerrymandering to entrench itself as the governing party and to remain so, long after that party falls out of favor.

Although Rucho was an Elections Clause case, it is easily applicable to states’ exercise of their Electors Clause power. Republicans will wield this new, nonjusticiable power (and the concomitant political cover that it provides) …

Standalone Frisks, Elias Neibart, Bobby Levine

Marquette Law Review

We all think we understand Terry v. Ohio. But we don’t. In fact, for decades, we’ve taken the wrong doctrinal lesson from Terry and its progeny.

Even though Terry discussed the constitutional standards surrounding “stop-and-frisks,” many of us have interpreted Terry as only permitting a “stop-and-then-a-frisk”—that is, a police officer is permitted to stop an individual on the suspicion that he is about to engage in criminal activity, and then, and only then, can that officer frisk the individual if he believes the suspect is armed and dangerous. But that’s not right. The Terry Court never said that. And …

Decoding The Path Of Constitutional Exclusion In Wisconsin Digital Evidence Cases, Amelia Boruch

Marquette Law Review

Criminal cases involving novel digital evidence warrants often raise constitutional and suppression issues. As these constitutional issues become harder to resolve, resolution of the suppression issues becomes easier to predict. Where officers obtain warrants to use cutting-edge investigative techniques in the absence of any legal authority, it is unlikely that evidence obtained pursuant to those warrants will be suppressed under the exclusionary rule. Even if the exclusionary rule were “triggered,” the good faith exception would likely apply to preclude suppression. Either way, the outcome is clear: suppression is unlikely.

Confidence in the outcome of these suppression issues has seemingly taken …

Daniel Ezra Subotnik (1942-2024) Obituary

Touro Law Review

No abstract provided.

Son Of Orwell, Chesterton, And Mill, Stephen B. Presser

Touro Law Review

No abstract provided.

Kekuasaan Yudisial Dalam Sistem Demokrasi Konstitusional: Membangun Antitesis Dekonstitusionalisasi Dan Politisasi Peradilan, Tundjung Herning Sitabuana, Airlangga Surya Nagara, Dixon Sanjaya

Jurnal Hukum & Pembangunan

Strengthening idea of constitutional democracy as a transitional phase towards a modern rule of law requires one of main characteristics of an independent judiciary. Current phenomena demonstrate how utopian these conditions are as the judiciary becomes increasingly politically pragmatic, transactional, interdependent, and demoralized. At the same time, phenomenon of constitutional defiance is growing stronger with efforts to deconstitutionalize and politicize the judiciary. This study aims to explore the existence and legitimacy of the judiciary in constitutional democracy era against that phenomenon. The research was conducted doctrinally with a historical, conceptual, and comparative approach that was analyzed qualitatively. The results indicate …

Omnibus Law Sebagai Strategi Mengatasi Disharmonisasi Peraturan Di Indonesia, Tuti Tri Hastuti S., Zainal Arifin Hoessein

Jurnal Hukum & Pembangunan

This article discusses the challenges in implementing the Omnibus Law (OL) both as a regulatory system and as a tool for harmonizing regulations within Indonesia’s legal positivist tradition and its complex, non-simple regulatory hierarchy, from the perspectives of legislative consolidation theory, regulatory coherence theory, and multilevel regulation theory. This study is based on the assumption that OL, within the framework of legal positivism (norm hierarchy system), faces problems in applying these three theories. The research employs normative juridical and comparative methods, analyzing national regulations and international research findings. The results indicate, first, that the positioning of OL, which does not …

Is Bruen The New Usery?, Tonja Jacobi, Cory Conley

Faculty Articles

In 2022, in New York State Rifle & Pistol Ass’n v. Bruen, the Supreme Court revolutionized the Second Amendment, achieving the long-held conservative goal of limiting gun restrictions by imposing an expansive, originalist view of the right to bear arms. However, within just three years, Bruen is showing cracks. Lower court judges are struggling mightily to apply it and are expressing their frustrations in exceptionally frank ways. And already the Supreme Court, in Rahimi v. United States, was forced to reconsider its approach. The Court has been here before, when it tried to revitalize the Tenth Amendment in …