Constitutional Law Commons^™

Revisiting “Of Arms And The Militia: Gun Regulation By Legislatively Defining ‘Ordinary Military Equipment’”, Edward J. Curtis ,Jr.

Touro Law Review

In 2021, I published an article arguing that semi-automatic rifles and semi-automatic handguns, among other weapons, could be most effectively regulated by defining the “ordinary military equipment” that the states’ militia members were expected to produce in the event they were called to service. I based my argument on the rationale employed by the United States Supreme Court in its 1939 decision in United States v. Miller, which upheld the National Firearms Act of 1934.

The American Dream And The Politics Of Promise: Presidential Rhetoric Against Reality On Inequality, Education, And Assistance Since 2000, Abigail Demonte

Touro Law Review

No abstract provided.

Fourth Amendment Rights In The Age Of Automated License Plate Recognition Cameras, Jessica L. Terkovich

Touro Law Review

Law enforcement technology has evolved to the point of being ever-present, especially in the form of automated license plate recognition cameras. This Article analyzes recent Fourth Amendment challenges to automated license plate recognition camera systems and developments in the technological landscape in the wake of seminal cases discussing the changing expectations of privacy as law enforcement technology evolves. The Article concludes that, as is, automated license plate recognition camera systems are not unconstitutional dragnets and do not perform warrantless searches, though they have potential to raise constitutional issues in the future.

Tinjauan Frasa “Setiap Orang” Dalam Pasal 3 Ayat (1) Peraturan Pemerintah Nomor 56 Tahun 2021 Tentang Pengelolaan Royalti Hak Cipta Lagu Dan/Atau Musik, Fajar Hidayansyah Ilham, Luna Dezeana Ticoalu

Jurnal Hukum & Pembangunan

Copyright is one form of legal protection for intellectual works, occupying an important position within the intellectual property law system. The Copyright Law explicitly grants exclusive rights to creators, encompassing both moral rights and economic rights. Economic rights, as stipulated in Article 9 paragraph (1), allow creators to obtain economic benefits from their works, ranging from publication, reproduction, distribution, performance, to communication to the public. This provision shows that creators hold a primary position as legal subjects entitled to protection, while also serving as central actors in the creative industry ecosystem. In practice, the mechanism for copyright protection requires implementing …

Hester’S Dubious Roots And Legacy: Open Fields Doctrine Under Scrutiny, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

For over a century, open fields doctrine has shaped Fourth Amendment law, denying people the right to be secure on their own property. Its application has steadily expanded, with the result that, by some estimates, the Government can now engage in warrantless surveillance of some ninety-six percent of private land and buildings regardless of fences, postings, the distance from public roads or byways, or the use to which the property is put. An originalist approach throws the doctrine into disarray: at the time of the Founding, common law protected the curtilage, which extended to the fields, barns, storehouses, and other …

Creation And The Republican Revival, William M. Treanor

Georgetown Law Faculty Publications and Other Works

Gordon Wood's classic book Creation of the American Republic has long influenced legal thought and originalist scholarship in particular. It played a central role in the Republican Revival movement, an effort by leading scholars such as Cass Sunstein and Frank Michelman to recover a progressive originalism at the same time as conservative originalism was starting to shape constitutional jurisprudence. But, while the Republican Revival nominally relied on Wood, it misread central elements of his book - his concept of virtue and his belief that republicanism had largely been displaced at the time of the drafting of the Constitution.

The time …

Trolling The Rule Of Law: Presidential Lawfare, The Stalingrad Defense, And The Lawyers, David Luban

Georgetown Law Faculty Publications and Other Works

This paper, part of a symposium on presidential lawfare, examines the so-called “Stalingrad Defense”—a strategy of total procedural obstruction—within the broader phenomenon of rule-of-law backsliding facilitated by legal professionals. By exhausting judicial resources and weaponizing procedural delays on behalf of political leaders, such lawyers do not merely defend a client; they actively participate in subverting the institutional foundations of democracy. I argue that the standard conception of legal ethics, which emphasizes neutral partisanship and zealous advocacy, is fundamentally inadequate to capture the wrongfulness of lawyers who use legal tools to dismantle the legal system itself. In its place, I propose …

Taking Off The “Blindfold”: Exploring Montana’S Public Trust Doctrine And The Right To A Clean And Healthful Environment After Held V. Montana, Lizzy Gazeley

Lewis & Clark Law Review

As global average temperatures continue to rise, the threat of climate change looms closer. To evade climate catastrophe, greenhouse gas emissions will need to be substantially reduced. Despite climate change’s imminent risks, in the United States, both the federal government and states remain resistant to transitioning away from fossil fuel energy sources. To combat this government inaction, some litigants have turned to an ancient doctrine. The public trust doctrine provides that sovereigns must protect natural resources from substantial impairment to ensure the public’s right to use those resources.

In Held v. Montana, youth plaintiffs alleged that the State of Montana …

Immigration Federalism And The Promise Of State Constitutions, Joanne Gottesman

Lewis & Clark Law Review

This Article explores state constitutions’ promises and pitfalls for immigrant rights advocacy. This is a particularly urgent endeavor, given the anti-immigrant measures of President Trump’s second term and a U.S. Supreme Court that is willing to reverse longstanding precedent. Even cases like Plyler v. Doe, with its guarantee of free public education to undocumented children, could be vulnerable. While U.S. Supreme Court opinions protecting immigrant rights are the gold standard because they apply nationwide, state courts and state constitutions provide critical alternative avenues for relief that should not be overlooked.

This Article considers some state constitutional provisions that may help …

Excavating Miranda, Samuel J. Levine

Scholarly Works

Sixty years after it was decided, Miranda v. Arizona remains one of the most significant and renowned cases—as well as, arguably, one of the most controversial cases—in the history of the United States. Chief Justice Earl Warren’s majority opinion, establishing the eponymous Miranda warnings for custodial interrogation of criminal suspects, has prompted voluminous and continuing commentary, among both critics and supporters. This Article is part of an ongoing project exploring a particular aspect of Chief Justice Warren’s majority opinion: a footnote referencing Jewish legal sources, documenting an important passage at the start of a pivotal section of the opinion.

Building …

Applying History As Law: The Role Of Historical Facts In Implementing Constitutional Doctrine, Joseph Blocher, Brandon L. Garrett

Faculty Scholarship

The U.S. Supreme Court has long relied on historical evidence in constitutional cases, but recent years have seen a major change in how it does so: not only to interpret the meaning of constitutional text, but to establish doctrinal tests that call for historical evidence to be used in the application of those tests going forward. Broadly speaking, originalism has moved from the realm of legal interpretation to that of law declaration and then to law application. This transformation in the legal significance of history raises important questions for originalism as a practice of constitutional adjudication, not simply a theory …

The Foreign Commerce Power, Kathleen Claussen, Timothy Meyer

Faculty Scholarship

This Article is the first to scrutinize presidential trade authority under the Constitution. The Constitution grants the President no independent power to regulate foreign commerce. That conclusion, while apparent from a straightforward reading of Articles I and II, stands in stark contrast to executive conduct of U.S. trade policy in recent years. This Article traces the roots of this constitutional distortion to a confluence of doctrinal drift and academic oversight. Courts and commentators have increasingly relied on an expansive conception of executive power grounded in a perceived general foreign affairs authority. In doing so, they have blurred the line between …

Cumulative Burdens On Second Amendment Rights, Joseph Blocher, Hayley Lawrence

Faculty Scholarship

No abstract provided.

Private Prosecution And The State, Anna Arons

Faculty Publications

The modern family regulation system is paradigmatically public. In the common account, the state plays a monopolistic role. It decides which families to investigate and which to prosecute, which families to surveil and which to separate, and which services and benefits to provision for families entangled in the system. Yet, this public family regulation paradigm obscures the role of private prosecution. Nearly half of states permit private individuals to initiate dependency prosecutions. In these cases, private prosecutors allege that parents have neglected or abused their children and seek state intervention on the fundamental right to family integrity.

This Article surfaces …

Property Rights V. Taxpayer Rights: The Battle Over Tax Foreclosures, Stewart E. Sterk

Articles

No abstract provided.

Fraudulent Transfers And Sovereign Immunity, David G. Carlson

Articles

The article argues that the Supreme Court's decision in United States v. Miller was wrongly decided because it failed to recognize that sovereign immunity is waivable and does not protect the government when it trespasses upon preexisting property rights. The analysis contends that fraudulent transfer claims are quasi in rem actions, meaning the sovereign is subject to the incidental procedures of bankruptcy once enmeshed in such proceedings.

How The U.S. Constitution Shapes International Tax Law: Instrument Choice In Tax Agreements, Noam Noked, Young Ran (Christine) Kim, Reuven S. Avi-Yonah

Articles

The U.S. Constitution’s Treaty Clause, which requires Senate approval by a two-thirds vote for treaties, has significantly influenced the development of international tax law. This Article examines the implications of Senate supermajority requirements on bilateral and multilateral tax treaties and agreements, alternative instruments, relevant international tax standards, and global tax governance.

Historically, tax treaties have been approved exclusively as Article II treaties requiring Senate approval. The difficulty of entering into treaties with the United States has influenced the instrument choice and design of U.S. and international tax standards. To address this challenge, several U.S. and international tax reforms have employed …

A Theory Of Major Questions, Nicholas Almendares

Cardozo Law Review

The major questions doctrine has been fiercely criticized as an example of the Supreme Court’s “imperial” turn where it concentrates ever more power in its own hands. The doctrine is sweeping, vague, and lacks a clear justification. Not only does the Court get to decide when the doctrine applies and when the heightened standard is satisfied, but it has also not offered good reasons behind this rule. A well-defined theory would give the doctrine structure, clarity, and consistency. While majority opinions have been conspicuously quiet on the theory behind the major questions doctrine, concurrences, namely by Justice Gorsuch, have argued …

Reconstituting A Constitution, And A Republic: The Architecture Of Authoritarian Rule, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

A constitution can be remade without tearing it down, or even changing a single word. It is done by law. It is being done now—by the Supreme Court.

In each case, real people win, real people lose, real people suffer. Outcomes matter. But across the span of cases, the Court is tearing down our constitutional order of divided power—taking authority from the courts below, from Congress, the agencies, the states, and us, the people—and building a structure of unchecked power in itself. Procedure and remedies are constitutive of the judicial power. In a time of authoritarian threat, they are the …

Let Them Hear It: Peaceful Protests Near The Homes Of Supreme Court Justices, Srikanth Reddy

Lewis & Clark Law Review

All of us—not just attorneys and politicians—need to be more critical and skeptical of the Supreme Court. Criticism by ordinary people is good and appropriate, even if it hurts the Justices’ feelings. That includes public protests. When a case matters enough to them, members of the public can and should criticize the Court and its Justices, including by peacefully gathering and protesting near a Justice’s home, or when a Justice appears out in the world.