Constitutional Law Commons^™

The Role Of First Amendment In Equal Protection And Affirmative Action Analysis: The Compelling Governmental Interest, Simona Grossi

UC Law Constitutional Quarterly

The Supreme Court’s decision in Students for Fair Admissions v. Harvard College has transformed the legal framework governing university admissions, sharply limiting race-conscious policies and compelling institutions to align their diversity objectives with the newly shaped heightened scrutiny under the Equal Protection Clause. Concurrently, the Trump administration’s broad-based attack on diversity, equity, and inclusion (DEI) programs—culminating in executive orders restricting race-conscious initiatives— has further intensified the legal and political pressure on colleges and universities striving to foster inclusive academic environments. This article contends that the First Amendment—particularly its protections of academic freedom and free speech—plays a critical and underutilized role …

Separation-Of-Powers Lochnerism, Andrea Scoseria Katz

Fordham Law Review

One hundred and twenty years ago, in 1905, the U.S. Supreme Court rendered one of the single most notorious opinions in history, striking down a New York labor law for violating the right to contract—a right found nowhere in the text of the Constitution. Though the era of Lochner v. New York is well past us, the judicial impulses that gave rise to the case remain. With a new champion in the Roberts Court, Lochnerism is alive and well, deployed in a new context to redefine the relationships between the president, Congress, federal agencies, and the courts.

Bringing together two …

(How) Is Plea Bargaining Justified?, Palma Paciocco

Articles & Book Chapters

No abstract provided.

The Quest For Budget Armor: Public Expenditures, Positive Rights, And Separation Of Powers In Washington's State Constitution, Kristen L. Fraser

Washington Law Review

In 2012, Washington’s landmark McCleary decision confirmed and expanded previous interpretations of the state constitution’s “paramount duty” clause, affirming a vital positive right to education and a judicial willingness to enforce it against the other branches. Notwithstanding a tense six-year period of judicial supervision after the ruling, ultimately the state legislature enacted broad education funding reforms and the appropriations and revenues to implement the additional resources for schools. Given competition among stakeholders for public funding for state programs, in the post-McCleary period, other litigants have asked courts to find similar positive constitutional rights to state services and funding. So …

The High Cost Of Law School Casebooks, Jeffrey Bellin

William & Mary Bill of Rights Journal

Commentators have forecasted the demise of high-priced commercial casebooks for two decades. Yet little has changed. This Symposium Essay explores the headwinds facing free and low-cost books in the law school casebook market. It suggests that the biggest problem is “casebook selection inertia.” Given the centrality of the assigned casebook to a typical law school course, professors face strong incentives to make a safe choice from among the leading casebooks—typically those published by the handful of established academic presses who set the highest prices. These choices stick, not only determining the book that will be used for that professor’s future …

Foreword

UC Law Constitutional Quarterly

No abstract provided.

Per Se Non-Takings, Nestor M. Davisdson, Timothy M. Mulvaney

Faculty Scholarship

In the discourse on the Takings Clause, disputes over methodology have long formed a kind of proxy war, with per se rules ordinarily underwriting strong constitutional protection for property rights and ad hoc standards more often vindicating public interests. At a moment when the Supreme Court is increasingly embracing the rules end of this rules-standards spectrum, this Article offers a novel perspective to challenge the conventional link between categorical reasoning and classical liberal conceptions of constitutional property.

To do so, the Article excavates a vast body of law denying takings liability through rule-like reasoning, an approach the Article calls per …

Local Government Standing As State Standing, Katharine Cooney, Katherine Mims Crocker

Faculty Scholarship

It is increasingly common, and controversial, for local governments to bring lawsuits as plaintiffs in federal court. Many questions about this practice raise matters that sound in policy. But some, including the issue of standing to sue, also raise issues of constitutional law. How local governments fit into standing rules should reflect how they fit into the U.S. constitutional system more broadly. As the Supreme Court put it in the famous (and infamous) 1907 case Hunter v. City of Pittsburgh, "[m]unicipal corporations are political subdivisions of the State, created as convenient agencies for exercising such of the governmental powers of …

From Winans To Wallahee: Treaties, The Washington State Supreme Court, And The Pursuit Of A More Just Rule Of Law, Monte Mills

Washington Law Review

The relationship between the United States federal government, the states, and Native Nations has long been at the core of federal Indian law. From the earliest decades of its jurisprudence, for example, the United States Supreme Court struggled in its efforts to analyze and define the rights, authorities, and interactions of Native Nations within and in relation to the evolving structure of constitutional federalism. Treaties between the United States and Native Nations were central to those decisions and provided a necessary, constitutional check against state interests intent on eliminating sovereign Native Nations. Those constitutional and structural implications thus go well …

Who Counts As A "Reasonable Employee"? The Third Circuit's Bungling Of Section 8(A)(1) Violations, Ben Milstein

Washington Law Review

The National Labor Relations Act (NLRA) protects private employees’ right to unionize and collectively bargain with their employers. Section 7 of the NLRA guarantees employees the right to self-organize labor unions, while section 8 outlines numerous unfair labor practices. Specifically, section 8(a)(1) bans employer interference, coercion, or restraint of any section 7 rights. In a 2022 case, FDRLST Media v. NLRB, the Third Circuit Court of Appeals reversed a National Labor Relations Board (NLRB) finding that FDRLST Media’s executive officer’s tweet constituted a section 8(a)(1) violation. This Comment examines the history of section 8(a)(1) violations, specifically discussing the widely …

The Supreme Court Of India's Use Of Inherent Power Under Article 142 Of The Constitution: An Empirical Study, M. P. Ram Mohan, Sriram Prasad, Vijay V. Venkitesh, Sai Muralidhar, Jacob P Alex

National Law School of India Review

The Constitution of India under Article 142 grants the Supreme Court of India broad inherent powers to do complete justice. The contours of these inherent powers and what it means to achieve complete justice were left to the Supreme Court to determine on its own. In this paper, we empirically examine all the Supreme Court cases from its inception in 1950 till 2023 which use the term “Article 142” or “complete justice.” We found 1579 cases, which were then hand-coded for many variables such as the nature of the case, where the case was appealed from, the temporal distribution, the …

Shielding Freedoms: State Noncooperation In Hunts For Evidence And People, Mary D. Fan

Washington Law Review

The nation is fracturing into a patchwork of rights and punishment. What some states and localities safeguard as rights, other jurisdictions are criminalizing and punishing. As the divides in rights and punishment deepen, some states are becoming sanctuaries for freedoms penalized elsewhere and enacting shield laws prohibiting cooperation with criminalization and punishment states. A prime example is shield laws protecting people seeking to exercise reproductive rights or obtain gender-affirming care. Major jurisdictions for healthcare and technology-related businesses, such as Washington, California, New York, and Massachusetts, have enacted shield laws that prohibit law enforcement and companies from complying with subpoenas seeking …

Foreword: Casebooks And The Choices That Shape Constitutional Law, Sanford Levinson, Caroline Olsen

William & Mary Bill of Rights Journal

This collection of essays is the product of a conversation between the two co-authors of this Introduction. It occurred toward the conclusion of a very illuminating Symposium at William & Mary Law School in March 2024 on Jack Balkin’s latest book, Memory and Authority, on the role that memory plays in our notions of law. Caroline was the incoming Editor-in-Chief of the William & Mary Bill of Rights Journal, which had sponsored the Symposium. Sandy was a participant in the Symposium. Jack is a very close friend with whom he has coauthored at least two dozen articles and …

Casebooks, Canons, And Constitutional Memory, Jack M. Balkin, Sanford Levinson

William & Mary Bill of Rights Journal

Casebooks on constitutional law take a lot of time and effort to prepare. What is the point of bothering to edit one? There are several possible reasons. First, you might want to make money from sales. For the vast majority of law professors, the financial return to the hours spent organizing and editing cases is simply not worth it. Second, you might be the sort of person who just likes to do things by yourself. If you are going through the bother of preparing your own materials, then why not publish them and possibly influence others as well? Most law …

What Is The Measure Of Success For A Constitutional Law Casebook?, Erwin Chemerinsky

William & Mary Bill of Rights Journal

In this Essay, I want to address four topics: how I came to write my constitutional law casebook; my goals for my Constitutional Law class and how the book facilitates achieving them; the challenges in writing a constitutional law casebook; and thoughts about the future of constitutional law casebooks.

There are many different constitutional law casebooks on the market because there are countless different ways of teaching the subject. There is no right way or best way to teach this or any other subject in the law school curriculum. I am describing my approach to teaching a subject that is …

Overruled Cases As A Tool For Inculcating Legal Realism, Michael C. Dorf

William & Mary Bill of Rights Journal

The changes wrought by Dobbs and Students for Fair Admissions v. President and Fellows of Harvard College (SFFA) are hardly the only examples of momentous changes to constitutional law in the last few years. Doctrines involving the religion clauses of the First Amendment, the Second Amendment, the scope of the president’s removal power, and much more have been changing rapidly since Amy Coney Barrett replaced Ruth Bader Ginsburg in the fall of 2020, thereby solidifying a conservative supermajority on the Supreme Court. I imagine that the strengthening of the major questions doctrine, the overruling of Chevron deference to federal administrative …

Teaching Firearms Law: One Big Opportunity And Three Pedagogical Challenges, Joseph Blocher, Jacob D. Charles, Darrell A.H. Miller

William & Mary Bill of Rights Journal

The U.S. Supreme Court’s groundbreaking 2008 decision in District of Columbia v. Heller ushered in a new era for the Second Amendment: one in which the right to keep and bear arms, long dormant as a matter of practical impact and even “embarrassing” as a matter of legal scholarship, vaulted into the front ranks of constitutional law. The Court itself has only revisited the Amendment a few times since then—albeit once by revolutionizing the doctrine. Meanwhile, lower courts have issued thousands of decisions giving shape to the right, while scholars have generated work that is increasingly deep, diverse, and challenging. …

Show And Tell: Writing Constitutional Law Casebooks When The Law Doesn't Matter, William D. Araiza

William & Mary Bill of Rights Journal

Writing a constitutional law casebook today presents significant challenges. One reason among several stands out: law matters less—indeed, sometimes very little—to those charged with interpreting our constitutional law and implementing our constitutional system.

This Essay examines this challenge and explains how my contribution to the constitutional casebook genre attempts to answer it. It argues that the current moment requires instructors, and the books they use, to “show”—that is, to demonstrate to their students both the handiwork of those interpreters and implementers and alternative pathways. Sometimes, however, practical considerations preclude such showing. In those situations, “telling” may be required. But regardless …

Coping With A Court One Disagrees With, Randy E. Barnett, Josh Blackman

William & Mary Bill of Rights Journal

Part I of this Essay focuses on our approach to teaching the constitutional canon. This part is adapted from the Preface to our constitutional law casebook. Part II traces the evolution of our casebook from the First Edition to the Fourth Edition, and the forthcoming Fifth Edition. We demonstrate that the constitutional canon has changed, but remains remarkably stable. Part III addresses how we, and other like-minded law professors, managed to teach decisions that we fundamentally disagreed with.

This abstract has been taken from the authors' introduction. 

What Should A Constitutional Law Casebook Be?, William Funk

William & Mary Bill of Rights Journal

What is the purpose of a “casebook”? It is not a “hornbook,” designed to summarize or explain the law in a specific area, generally aimed at law students or lawyers to provide a straightforward statement of the law. It is not a “treatise,” a comprehensive, systematic exposition of the law in a particular field, involving an in-depth analysis and interpretation of the law. And it is not a “study aid,” supplementary material designed to help students do better in their classes. It is the book used by professors in their classes. For professors of constitutional law, it is a tool …