Constitutional Law Commons^™

A True Fact Should Not Be Controversial: Analyzing The Zauderer Standard And Defining “Uncontroversial”, Edina Hartstein

Fordham Law Review

In Zauderer v. Office of Disciplinary Counsel, the U.S. Supreme Court recognized an exception to the compelled speech doctrine that allowed the government to regulate commercial speech if it was “purely factual and uncontroversial.” However, the Court failed to define what it meant for a disclosure to be “purely factual” or what it meant to be “uncontroversial.” This lack of clarity led to lower courts inconsistently applying the Zauderer standard. In 2018, the Supreme Court decided National Institute for Family Life & Advocates v. Becerra (NIFLA), which held that the Zauderer standard cannot apply when the disclosure …

Red, White-, And Blue-Collar Crime: Federal Sentencing Practices Among White-Collar And Blue-Collar Offenders, Henna Judge

Fordham Law Review

Under the current federal sentencing regime, district courts exercise immense amounts of discretion when sentencing. Though strict adherence to the U.S. Sentencing Commission Guidelines (the “Guidelines”) was once mandatory, courts must now use these Guidelines as an advisory starting point and make a series of fact-specific determinations when sentencing a defendant. Though judicial discretion in this realm aids in preventing undue reliance on Guidelines-range recommendations that can lack nuance, it also invites bias.

In recent years, scholars and courts alike have called attention to a potential disparity in the way blue-collar and white-collar offenders are sentenced. This Note examines relevant …

Settling On A Standard: Reviewing The Right To Self-Representation, Lauren Lipson

Fordham Law Review

Courts appoint counsel for indigent criminal defendants who cannot afford legal representation to uphold their Sixth Amendment rights. In its seminal waiver case, Faretta v. California, the U.S. Supreme Court elevated the corollary right—the right to self-representation—to constitutional status. In dicta, the Court created a standard by which defendants must waive their right to counsel “knowingly and intelligently” to proceed pro se. The Court subsequently sculpted the right to self-representation as it came to standby counsel and mental competency, but it never prescribed a precise waiver colloquy for district court judges to administer, causing the Faretta colloquy to look …

Tapping Out Of The Wiretap: Whether Consumers Have A Reasonable Expectation Of Privacy Against Internet Tracking Technology, Ashley Faranesh

Brooklyn Journal of Corporate, Financial & Commercial Law

The California Invasion of Privacy Act (CIPA), a statute born in an era of rotary phones and analog surveillance, is now at the heart of a legal crisis over internet tracking and privacy. Plaintiffs have increasingly weaponized the CIPA against online businesses that use standard Web-tracking tools, triggering a wave of litigation that stretches the statute far beyond its intended purpose. This Note argues that such application misreads the legislative intent behind the CIPA and risks destablizing core structures of the internet economy and financially crippling online businesses. Courts applying literal interpretations are undermining the CIPA’s purpose by conflating commonplace …

The Heteronormative Language Of Law: The Win In Bostock And The Loss For Title Ix, Negar Khalaf

Journal of Law and Policy

The struggle for equality in education begins with language. Legal categories like “sex” and “gender identity” shape who is protected and who is left behind. When the Supreme Court decided Bostock v. Clayton County, it extended protection to LGBTQ+ workers but offered no definition robust enough to secure similar rights for students under Title IX. Subsequent efforts by the Department of Education to bridge that gap—culminating in Tennessee v. Cardona and constrained by Loper Bright Enterprises v. Raimondo—reveal the limits of agency action in a post-Chevron era. This Note calls for a legislative solution: an amended Equality Act Bill (“EAB”) …

The Political Dynamics Of Constitutional Law, Neal Devins

William & Mary Bill of Rights Journal

No abstract provided.

What Makes A Con Law "Doctrine" And Why Does It Matter?, Allison Orr Larsen

William & Mary Bill of Rights Journal

A few years ago, I started wondering about the “major questions doctrine” (or MQD) in administrative law, and I found myself asking: “When did that become a thing?” I was familiar with the cases that stand for the proposition that Congress does not lightly delegate high stakes questions to administrative agencies—cases that date back to 2000 and specifically to a decision about cigarette advertising and the FDA. But up until 2022, it was rare for courts and commentators to refer to that collection of cases as a “doctrine.” Today, by contrast, the major questions doctrine is bread and butter administrative …

Penambahan Jumlah Kementerian Negara: Analisis Terhadap Efektivitas Dan Efisiensi Pemerintahan, Bayu Saputro, Alfi Syahri Lubis, Renaldy Wijaksana Wibowo, M. Fariz Al-Qindi

Jurnal Hukum & Pembangunan

The revision of Law 39/2008 on State Ministries, which removes the maximum limit of 34 ministries, has become a polemic issue in society. Analysis shows that increasing the number of ministries is not urgent and runs counter to the spirit of bureaucratic reform. This policy also does not improve the effectiveness of government administration, because the main issue affecting the effectiveness of ministries lies in the quality of ministers, not the number of ministries. The addition of ministries has the potential to cause overlapping authorities, regulatory disharmony, and sectoral egos. From an efficiency perspective, this policy places a heavy burden …

Doktrin Penyalahgunaan Hak (Abus Des Droit), Syukron Salam

Jurnal Hukum & Pembangunan

The present article examines the emergence of the doctrine of abus de droit in France in the mid-twentieth century through an analysis of key judicial decisions and the debates that followed them. The study commences with an exposition of the manner in which the evolution of capitalism, concomitant with the escalating economic disparity and the propagation of societal challenges, has influenced the judicial approach to the abstract Roman-law tradition of absolute rights. In light of this, the article contends that the civil-law tradition exhibited a fundamental flaw in its conceptualisation of rights as absolute, thereby overlooking objections that were firmly …

Should The Army Be Involved In Divorce? Re-Examining The Pre-Divorce Defaults For Spousal Support, Artem M. Joukov, Thomas Godfrey

MC Law Review

Army Regulation 608-99 assigns a large portion of a Soldier’s paycheck to the spouse upon marital separation. The assignment occurs without a hearing, discovery, or consideration of critical evidence which might moderate the amount of support. The obligation rests on the Soldier to obtain a court order or spousal agreement to reduce the financial burden. The adversarial nature of modern divorces renders these requirements unrealistic. Amending the regulation would ease the burden of the Soldier, which is desirable in light of the ongoing recruitment crisis and the need to attract recruits and retain those already in the service.

Mississippi Redistricting And The Voting Rights Act: An Historical Supplement, Leslie H. Southwick

MC Law Review

No abstract provided.

Brief Of Edward A. And Doris Zelinsky In The Appellate Division, Third Department, New York Supreme Court, Edward A. Zelinsky, Doris Zelinsky

Amicus Briefs

To combat COVID, New York in 2020 forbade an out-of-state employee like the petitioner to commute into his New York office, forcing him to instead work at his home in Connecticut. New York now takes the remarkable position that it can tax the income Governor Cuomo forced this out-of-state employee to earn at his home exclusively outside New York. That position is as wrong as it sounds.

Both as a matter of New York law and of federal constitutional law under the Due Process and dormant Commerce Clauses, New York may not tax the income the petitioner earned exclusively at …

Politik Hukum Kedudukan Wakil Presiden Dalam Badan Pengarah Percepatan Pembangunan Otonomi Khusus Papua, Maleakhi Samuel Pasalli, Yamuna Nurafifah, Pranaldo Gunawan

Jurnal Hukum & Pembangunan

The legal policy regarding the amendment of Law Number 21 of 2001 into Law Number 2 of 2021 concerning Special Autonomy for Papua marks a paradigm shift from asymmetric decentralization towards controlled autonomy or leading to the centralization of power, notably through the establishment of the Steering Committee for Acceleration of Development of Special Autonomy for Papua (BP3OKP), which is chaired directly by the Vice President. This research is motivated by juridical issues wherein the Academic Paper (Naskah Akademik) of the amendment fails to provide scientific justification regarding the urgency of establishing this special body or the involvement of the …

Quasi-Judicial: A History And Tradition, Beau J. Baumann, Jed Handelsman Shugerman

Faculty Scholarship

In challenging the historical assumptions underlying the unitary executive theory, scholars have made several seemingly unrelated discoveries. First, "judicial" power was conceived in English law as a subset of "executive" authority. Second, Congress at or near the Founding insulated certain court-like comissions from presidential control. Finally, the "quasi-judicial" and "quasi-legislative" powers that were central to the holding of Humphrey's Executor flowed from a forgotten nineteenth-century legal tradition was guiding Congress's construction of the modern state. This Essay connects these findings into a single claim: generations of American stretching back past the Founding have instinctively insulated administrators granted quasi-judicial functions from …

Constitutional Obiter Dicta On Male-Male Sex And Fundamental Rights In Singapore, Benjamin Joshua Ong

Research Collection Yong Pung How School Of Law

The Singapore Court of Appeal held a law prohibiting male–male sexual intercourse (s 377A of the Penal Code) unenforceable on non-rights-based grounds. The court's remarks about the rights to life and liberty (including whether sexual orientation is mutable), freedom of expression, and equality are obiter. But they are significant, since in Singapore, there are few constitutional rights cases and the courts focus on spelling out the limits to executive and legislative power without necessarily striking down exercises of such power on rights grounds. Indeed, the obiter dicta prompted the Legislature to repeal s 377A. Given the repeal, the obiter dicta …

Missing Children Discrimination, Itay Ravid, Tanisha Brown

Faculty Publications

The problem of missing children in America—many of whom are victims of crime—has haunted society for decades. In response, a range of laws and policies have emerged, culminating in the nationwide adoption of the AMBER Alert system in the early 2000s. While often hailed as a success, this Article reveals a sad truth: Not all children benefit equally from AMBER. In particular, missing Black children are systematically underserved by the system, which ultimately contributes to the disproportionate impact of the missing children crisis on Black communities. While this issue received limited scholarly attention, states have recently started recognizing it. In …

The Use Of Less-Lethal Force By Law Enforcement: A Legal Analysis Of Civil Liability Cases In The Use Of Bean Bags And Rubber Bullets In Policing, Kenneth Lomenzo, Joshua Rosenbaum, Nathan Cronin, Mason Meyers, Akramul Hasan

Journal of Criminal Justice and Law

The use of less-lethal weapons such as bean bag rounds and rubber bullets has become a prominent and controversial mark of contemporary policing. Although these munitions are designed to incapacitate without resorting to deadly force, their deployment has resulted in serious injuries, fatalities, and a growing body of litigation. This article examines how federal appellate courts have addressed such cases through a systematic legal content analysis of 16 decisions issued between 1999 and 2025. Each case involved a claim under 42 U.S.C. § 1983 alleging excessive force in violation of the Fourth Amendment. The analysis considers judicial reasoning, liability outcomes, …

Death Before Breath: Courts Should Add De–Escalation And Proportionality To The Graham Factors, Nakyshia Fralin

University of Miami Race & Social Justice Law Review

This paper examines Barnes v. Felix, a case recently before the Supreme Court, through a comparative analysis of various circuit courts’ applications of the Graham factors in use–of–force evaluations. Beginning with a historical overview of policing, the paper revisits the factual background of the case before delving into the Fifth Circuit’s analysis, known as the Moment–of–Threat doctrine. It then contrasts this approach with the broader “totality of the circumstances” approach, highlighting the differing judicial interpretations. Building upon these established frameworks, the paper proposes two additional factors aimed at promoting human life and safety. By introducing these elements, the analysis seeks …

Deterring Prison Versus Police Civil Rights Violations: Legal Challenges, Public Policy, And Institutional Failures, Natalie Kemper

University of Miami Race & Social Justice Law Review

The status of incarcerated individuals falls categorically below that of non-incarcerated individuals in our society, yet most would agree they deserve protection from governmental abuses of power. This Note evaluates the current legal, institutional, political, and societal circumstances that contribute to the immense difficulties faced by individuals alleging civil rights violations under the Eighth Amendment, primarily through the avenue of U.S.C. § 1983. Due to similarities in civil rights claims, this Note compares the barriers faced by incarcerated plaintiffs to those encountered in police misconduct claims, highlighting key discrepancies that undermine accountability and deterrence.

A primary barrier is the significantly …

From Fairy Tales To Fascist Nightmares: Countering Ron Desantis’ Florida, Ronald Mize, Et. Al

University of Miami Race & Social Justice Law Review

The recent spate of anti–‘woke’, don’t say gay, anti–trans, and anti–immigrant legislation, led by Florida Governor Ron DeSantis, puts the sunshine state in the unenviable position of serving as the nation’s test case for Republicans’ neofascist agendas. This paper explores the exclusionary, targeting, and banning aspects of these culture war assaults on public education and outgroups. The specific banning of Critical Race Theory is discussed alongside cis–heteronormative efforts to target queer and trans communities, as well as DeSantis’ executive memoranda of transporting those at the border to sanctuary cities and S.B. 1718 aimed at excluding immigrant communities from public life …