Constitutional Law Commons^™

The Rogue Private Company And National Defense Emergencies, Gavin Small

Duke Journal of Constitutional Law & Public Policy Sidebar

This Note explores two overlapping challenges in the United States constitutional and political system. First, the United States increasingly relies on private companies for technologies necessary for national defense. This has given outsized power to a few unelected corporations and people who might have their own incentives that misalign with those of the United States. This is particularly dangerous in an emergency situation where the United States government, not a private company with its own interests, should be making decisions regarding national security. As an example, this Note focuses on the massive role that the company SpaceX plays in the …

Forcing Our Hand: Evaluating The Use Of Force In Responses To Wrongful Detentions Abroad, Tyler J. Marovitz

Duke Journal of Constitutional Law & Public Policy Sidebar

Wrongful detentions are on the rise. Over the past ten years, U.S. nationals have increasingly found themselves detained abroad upon spurious allegations, facing trumped-up charges, and deprived of basic due process protections. Most of these detentions occur in countries hostile to the United States: Russia, Iran, North Korea, China, and Venezuela. The U.S. has opted to release rightfully detained foreigners to those nations in exchange for its wrongfully detained nationals. All of this perpetuates a “prisoner bazaar” that encourages unscrupulous nations to continue their bad-faith detentions of U.S. nationals. This Note investigates this emerging issue through a use of military …

A Monumental Tug Of War: The Clash Over Presidential Authority And National Monuments In Murphy Co. V. Biden, Benjamin S. Levy

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Lulucf Is More Than A Mouthful: How The United States Could Implement The European Union’S Land Use, Land-Use Change, And Forestry Policy To Help Fight Against The Us Agricultural Lobby And Fight Climate Change, Isabella Neihardt

Brooklyn Journal of International Law

Climate change is this generation’s defining issue, and one that has passed the point of requiring critical attention and response. Agriculture is a major contributor to anthropogenic global warming, but it has largely evaded environmental regulation in the United States (US) due to “agricultural exceptionalism” and a powerful agricultural lobby. Activities in the land use, land-use change, and forestry (“LULUCF”) sector can effectively offset carbon dioxide equivalent emissions from agricultural activities through a process known as a “carbon sink.” In the European Union (EU), the agricultural sector is already regulated through Regulation (EU) 2023/839, the first LULUCF regulation of its …

Montana Trout Unlimited V. Montana Department Of Natural Resources, Kelly Brady

Public Land & Resources Law Review

A proposed copper mine located near tributaries of the highly protected Smith River in central Montana set off a series of lawsuits over the use of water in the state. After a number of administrative hearings and subsequent trials, the only substantial question left was the status of “mine dewatering.” The Montana Supreme Court decided whether 1,500,000 gallons of water removed annually from the inner workings of a mine should require a water use permit as a beneficial use or if it exists outside of the regulatory jurisdiction of the Montana Department of Natural Resources under the Montana Water Use …

Montana Environmental Information Center. V. Montana Department Of Public Service Regulation, Sadie Giles

Public Land & Resources Law Review

Montana Environmental Information Center v. Montana Department of Public Service Regulation provides insight into the discretion of the Public Service Commission and its impact on renewable energy development in Montana, especially in the wake of the repeal of the Renewable Power Production and Rural Economic Development Act. This case evaluates the Commission’s decisions to grant waivers to NorthWestern Energy for its 2015 and 2016 renewable energy purchase obligations under the Act. The Court found the Commission’s decisions were arbitrary and unsupported by substantial evidence and appropriate reasoning. Montana’s renewable portfolio standards had proven effective in promoting renewable energy and economic …

Tribal Sovereignty And The Limits Of Federal Evidence: Authenticating Indian Status In United States V. Harper, Anthony J. Shirey

Public Land & Resources Law Review

In United States v. Harper, the Tenth Circuit reversed a conviction for violent crimes committed in Indian Country because the government failed to provide admissible evidence proving that the defendant was an “Indian” under federal law. At first glance, the ruling appears to turn on a technical evidentiary issue concerning the exclusion of a tribal membership verification letter under the business records exception. Yet the case reveals something deeper: a jurisdictional framework that conditions the recognition of tribal identity on federal evidentiary norms, and in doing so, limits the functional sovereignty of tribal governments in federal courts. This Note seeks …

Friends Of The Inyo V. United States Forest Service, Sarah J. Leopard

Public Land & Resources Law Review

Friends of the Inyo v. United States Forest Service provides necessary guidance for categorical exclusion analysis under the National Environmental Policy Act. The Ninth Circuit Court of Appeals held that the United States Forest Service wrongfully construed NEPA as permissive of applying different categorical exclusions to various components of the same mining project until the project was excluded in its entirety from further environmental review. The Court’s holding establishes two essential rules for evaluating mining proposals on public lands: (1) a categorical exclusion, when applied under § 220.6, must cover the entire scope of a proposed project; and (2) the …

Opinion: The Constitution - Not Trump - Demands Our Allegiance, Christian G. Fritz

Faculty Scholarship

Supporting the Constitution not only requires submission to constitutional authority but implies resistance to powers that are exercised unconstitutionally. Such resistance might take the form of brave individuals living up to their oath of office or courts defending the rule of law and the Constitution. But while the Supreme Court plays a key role in interpreting the Constitution and holding a president in check, it has long been recognized that others besides the court have always been necessary to help monitor America’s constitutional order. The practice of resisting unconstitutional acts of the federal government by sounding the alarm was described …

Is It Time To Scrap Stare Decisis?, Wilfred U. Codrington Iii

Articles

Shortly after returning to the presidency, Donald Trump terminated several independent federal officers, prompting legal action by employees who occupied government positions covered by statutory for cause removal protections long held constitutionally permissible and valid. Eventually, one or more suits alleging unlawful termination owing to the removal without cause will reach the Supreme Court to be decided on the merits. Having steadily narrowed the Humphrey’s Executor line of cases that insulate these officers, the Court now seems poised to displace that precedent entirely. In isolation, the overruling would mark a seismic doctrinal shift and major advance in legal conservatism's pursuit …

What Are “Wartime Authorities” And When Can The President Use Them? An Expert Q&A, Tess Bridgeman, Rebecca Ingber, Scott Roehm

Online Publications

The first several months of President Donald Trump’s second administration have been marred by the chaotic and often unlawful use, or threatened use, of wartime and terrorism-related authorities for what are essentially domestic immigration or criminal law enforcement purposes. This is not the first time a president has sought to push the boundaries of his wartime powers, or outright claimed those he did not have, but it may well be the most extreme. Indeed, Trump’s reliance on wartime authorities in contexts entirely divorced from armed conflict, or even the threat of force against the United States, puts the country on …

The Objective Observer: The Washington State Supreme Court's Remedial Aspirations And Experience On The Ground, David B. Owens

Washington Law Review

The Washington State Supreme Court has adopted an “objective observer rule” for addressing whether race impacted jury selection and extended this rule to evaluating all aspects of Washington courts, including jury trials. The objective observer rule allows courts to evaluate whether decisions in those courtrooms could be viewed as the result of racial bias, even where there is no evidence of specific racial animus and in the absence of racial slurs. The rule, which covers a form of disparate impact, has now existed for over half a decade. This Article outlines the Washington State Supreme Court’s development of the objective …

The Gift Of Public Funds Bogeyman, Noah Purcell, Michelle Saperstein

Washington Law Review

Washington’s “gift of public funds” doctrine is frequently misunderstood in ways that impede innovative ideas aimed at remedying some of our state’s most intractable problems. This doctrine arises from article VIII, sections 5 and 7 of the Washington Constitution, which prohibit state and local governments from gifting assets or loaning credit. While the Washington State Supreme Court historically applied these provisions in restrictive and confusing ways, the Court’s modern jurisprudence recognizes that the doctrine is inapplicable to funding expended for any of the many “fundamental purposes” of government. Even where a government program does not fall under this broad category, …

Letter From The Editor, Davis Hayman

Criminal Law Practitioner

Dear Readers,

Thank you for your interest in The Criminal Law Practitioner. This marks my first publication as the Editor-in-Chief for the 2025-2026 academic year. I am thrilled to leave this remarkable team as we continue to solicit, write, and publish issues in criminal law.

 This issue continues this trend by highlighting topics including evolving interpretation of the 8th Amendment and a discussion on Constitutional venue issues related to internet crimes. Our authors provide some intriguing, unique insights that I invite you to dig into. In “The Continuing Unevolving Model of Decency, Kennedy v. Louisiana in Peril”, Professor Patrick S. …

Why Medicaid Is Addressing Homelessness With Section 1115 Waivers: A Critical Examination Of The United States' Federalist Mental Health System, Joshua Haas

Washington Law Review

Housing and health care are deeply interconnected, and their systemic relationship profoundly affects individual and societal well-being. Inadequate funding has undermined the American mental health system for decades, leading to gaps in care that have caused lasting harm to vulnerable individuals and society as a whole. This Comment examines the historical connections between homelessness and the American mental health system. It explores the benefits and criticisms of the United States’ federalist approach to health care, particularly focusing on Medicaid and its “section 1115 waivers,” which grant states flexibility to develop innovative, state-specific Medicaid programs. Recently, states began to utilize section …

The Continuing Unevolving Model Of Decency, Kennedy V. Louisiana In Peril, Patrick S. Metze

Criminal Law Practitioner

Professor Metze reflects on Kennedy v. Louisiana in its part in the development of Eighth Amendment jurisprudence and how the Supreme Court initially used Kennedy to further our understanding of the limits of the Eighth Amendment. The Court recently avoided a meaningful discussion of how our society is maturing and evolving by acknowledging a purposeful effort of some to reflect modern beliefs in opposition to those who would interpret everything through an 18th-century prism. After a case-by-case analysis of how the Court has used Kennedy, it is apparent the conservative majority now on the Court has decided there is no …

Criminalization Of Immigration Through State Enforcement: Lessons From Texas’S Latest Efforts To Criminalize Immigration Through Senate Bill 4, A. Regenold Bright

University of Arkansas at Little Rock Law Review

No abstract provided.

Ninth Amendment Neurorights, Joseph A. Tomain

Indiana Law Journal

Neurotechnology developments threaten two fundamental human rights: freedom of thought and mental privacy. For example, neuroscientists use brain scans to decode unspoken thoughts and to predict political ideology and sexual orientation. Additionally, they have successfully implanted false memories in the minds of mice. There are undoubtedly beneficial uses of this dual-use technology, such as identifying and treating a variety of medical conditions. But left unchecked, neurotechnology will be exploited by public and private actors alike. There is a growing and contested literature about how the law should respond to the increasing risks of neurotechnology. This Essay contributes to that literature …

The Equal Rights Amendment: The 28th Amendment To The U.S. Constitution, Twiss Butler, Patrick Butler

Dignity: A Journal of Analysis of Exploitation and Violence

This article reviews how Supreme Court interpretations of the 14^th Amendment have allowed laws to discriminate against women. It aims to show that the Equal Rights Amendment, ratified as the 28^th Amendment in 2020, offers a constitutional basis for eliminating all forms of legal sex discrimination against women. These forms include discrimination based on pregnancy and abortion, commodifying women’s bodies, and allowing men to intrude into women’s protected spaces. The review starts with the denial of protection for women by America’s Declaration of Independence in 1776, denounces the Supreme Court’s precedent-setting 1974 Geduldig decision, which ruled—quite illogically—that discrimination …

The Unfulfilled Promise Of Confédération Des Syndicats Nationaux: A Case Study On The Reconciliation Of Equality And Freedom Of Association, Andrea Talarico

Dalhousie Law Journal

The evolution of the protection of collective bargaining rights in Canada has been marked by a tension between freedom of association (section 2(d) of the Canadian Charter of Rights and Freedoms, “the Charter”) and equality (section 15(1) of the Charter). In most cases before the Supreme Court of Canada (“the SCC”), the SCC has examined both rights separately. More recently, the SCC has treated equality as a value (rather than a right), using the value of equality to inform its interpretation of freedom of association. Both these approaches (the “Siloed Approach” and the “Charter Values” approach) fail …