Constitutional Law Commons^™

Hunting For Meaningful Boundaries: Virginia's Dog Retrieval Statute And Defining Per Se Regulatory Takings Under Cedar Point, Mason Miller

William & Mary Bill of Rights Journal

This Note will begin with a summary of the [Cedar Point Nursery v. Hassid] decision. Next, it will provide an overview of Virginia’s dog retrieval statute and discuss a recent case challenging the same. The Note will then analyze the statute by applying the Cedar Point standard, with special attention given to the exceptions, to determine if the law constitutes a per se taking. Finally, the Note will conclude by exploring some implications of the analysis, again emphasizing the effect of the amorphous exceptions.

This abstract has been taken from the author's introduction.

The (Quorum) Call Is Coming From Inside The House: Incongruity Between The Current Interpretation Of The Quorum Clause And The Supreme Court’S First Congress Canon, Sam Mahler

Connecticut Law Review

Since the start of the twenty-first century, Congress members have faced more threats to their safety than at any other point in American history. Up to this point, none of the attacks have been successful in killing a majority of the members. However, such a prospect comes with the possibility of a reality where all Congressional action is stalled until replacement elections are held and new members are seated. In order to address this fear, Congress has changed its interpretation of the Quorum Clause to define the majority needed to conduct business as the majority of the members who are …

First Amendment Protection Under Connecticut’S Free Speech Statute: Inconsistent Interpretations And Disappointing Results, Elizabeth C. Anderson

Connecticut Law Review

Connecticut has taken unique strides in safeguarding employees’ constitutional rights by granting private employees the same First Amendment protections offered to public employees. However, the definition of “discipline” adopted by most courts permits employers to punish employees for exercising their free speech through non-affirmative acts like retracting promised promotions and bonuses. The absence of a clear, universal definition of “discipline” creates uncertainty for employees and employers, undermining the protective purpose of Connecticut’s free speech statute. This Comment argues that if or when the Connecticut Appellate Court takes up the issue of defining “discipline” under Connecticut General Statutes Section 31-51q, the …

California’S Ban On Cruel Or Unusual Punishment: A State Constitutional Analysis Of Anti-Camping Ordinances, Anna R. Janson

Connecticut Law Review

In Martin v. City of Boise, the United States Court of Appeals for the Ninth Circuit relied on the Cruel and Unusual Punishment Clause of the Eighth Amendment to rule that a class of involuntarily unhoused individuals may not be criminally punished for sleeping on public property in the absence of “sufficient alternatives” for all unhoused people. In Johnson v. City of Grants Pass, the Ninth Circuit elaborated that civil schemes which lead to criminal punishment are unconstitutional as well. However, the United States Supreme Court granted certiorari in the latter case and disrupted both Ninth Circuit decisions. The Court …

The Different Rhetoric Between Upholding And Overriding Disability Rights Inside The United States Supreme Court, Shane Egan

Political Science Undergraduate Honors Theses

This paper seeks to explain the rhetoric the U.S. Supreme Court uses when deciding disability cases, specifically when the Court upholds or overrides disability rights. The paper attempts to show how when the Court upholds disabled rights they use passive and weak rhetoric, and utilizes active and enforcing rhetoric when overriding disability rights. This paper analyzes this rhetoric inside education, healthcare, and employment cases heard by the Supreme Court.

The Next Generation Of Free Expression Scholarship: A Very Short Manifesto (In Memory Of Fred Schauer), Mark Tushnet

William & Mary Bill of Rights Journal

This Manifesto begins with a discussion of the accomplishments of the prior generation of free expression scholarship. The core of the Manifesto starts with a description of the idea of epistemic authority and draws upon Leiter’s analysis to show its importance in free expression theory. It emphasizes, with Leiter, that epistemic authority is relational: between and among epistemic authorities, and between such authorities and “ordinary” citizens (that is, those who aren’t near the core of an epistemic community that, as a collective, defines the community’s core and boundaries).

That discussion is followed by a description of challenges to the idea …

But For A Free Press: A Response To Press Freedom Skeptics, Kevin F. O'Neill, Patrick J. Charles

Law Faculty Articles and Essays

This Article is divided into three Parts. Part I will outline the history-in-law case forwhy the historical record sufficiently supports recognizing distinct constitutional press freedoms. Part II then provides a history-in-law response to some of the most common arguments made by press freedom skeptics as to why distinct constitutional press freedoms should not be recognized by the courts. Lastly, Part III makes the case for why the recognition of distinct constitutional press freedoms should become a jurisprudential reality and provides a roadmap to accomplish this.

Conservation Advocates Zambia Limited V The Attorney General (2023/Ccz/0018) [2024] Zmcc 6, Emmanuel N. Nyambe

SAIPAR Case Review

The author explores Conservation Advocates Zambia Limited v The Attorney General, contrasting the majority’s application of the constitutional avoidance doctrine with a forceful dissent. The majority declined to hear an environmental petition, classifying the grievances as statutory rather than constitutional. The author aligns with the dissent, arguing that such reasoning sidesteps the judiciary’s constitutional mandate to protect and promote environmental rights. The case presents a fundamental choice for the Court: whether to treat the Constitution as a source of aspirational guidance or as a directly enforceable instrument of environmental accountability and public participation.

Goodbye, Zoning?, Michael Allan Wolf

UF Law Faculty Publications

American zoning is under attack on multiple fronts. The concerns of zoning's many critics range from social and racial justice, to private property rights, to the extreme shortage of affordable housing, to climate-change resilience and sustainability. A growing number of voices have called for, at a minimum, the elimination of single-family zones; some even champion the abolition of this ubiquitous method of American land use regulation. This Article is the first detailed look at what would happen if zoning's critics got their way. The most efficient means for erasing zoning from American law would be for the U.S. Supreme Court …

Misusing Eminent Domain: Pretextual Takings For A Traditional Public Use, Cameron P. Hellerman

Fordham Law Review

Eminent domain is a powerful tool at the disposal of local, state and federal governments. The Fifth Amendment to the U.S. Constitution imposes two conditions on this sovereign power: the taking must be for “public use,” and the condemner must pay “just compensation” to the property owner. There are minimal guardrails in place to police potential misuse of the eminent domain power in the courts. The U.S. Supreme Court equates “public use” with “public purpose” and applies a deferential standard of review to a condemner’s determination that a taking serves a public purpose. Nonetheless, the Court in Kelo v. City …

Nourishing The Living Tree: Vincent Macdonald And His Constitutional Thought, Preston Lim

Dalhousie Law Journal

Since the enactment of the Canadian Charter of Rights and Freedoms, Canadian judges have increasingly approached the Constitution through a living constitutionalist lens, adapting the Constitution to contemporary realities and treating the text as but one interpretive modality alongside purpose and context. The Supreme Court has rooted this living constitutionalism in the Judicial Committee of the Privy Council’s judgment, Edwards v Attorney General of Canada, wherein Lord Sankey introduced the metaphor of the “living tree.” Justice Robert Sharpe and Professor Patricia McMahon have suggested that the “living tree metaphor remained a forgotten footnote until 1982.” Indeed, more formalist approaches towards …

The Chilling Effects Of Dobbs, Jonathon W. Penney, Danielle Keats Citron, Alexis Shore Ingber

Articles & Book Chapters

The Supreme Court’s evisceration of the federal constitutional right to abortion has raised the specter of criminal and civil liability for abortion providers and patients. Police and prosecutors have easy access to commercial reservoirs of intimate data. As individual accounts made clear in the wake of the Dobbs v. Jackson Women’s Health Organization decision, corporate surveillance of intimate life chilled expressive activities, such as searching for information about reproductive health and using period tracking apps. Health professionals did not feel safe to speak out about the impact of new abortion laws. Harassment and threats directed at abortion clinics and at …

Clark Memorandum: Spring 2025, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• Primary and Professional Identity
• Never Only Two Sides
• In Defense of Zion and Her People
• The Pursuit of Happiness

Isaac Mwanza And Zambia Civil Liberties Union (Zclu) V The Attorney General 2024/Ccz/008, Emmanuel Banda

SAIPAR Case Review

This contribution considers Isaac Mwanza and Zambia Civil Liberties Union (ZCLU) v Attorney General, a case challenging the constitutionality of longstanding penal provisions criminalising same-sex relations. The author takes issue with the Constitutional Court’s refusal to entertain the matter on jurisdictional grounds, arguing that it misconstrued the relationship between Articles 28 and 128 of the Constitution. By deferring entirely to the High Court on Bill of Rights issues, the author contends, the Constitutional Court has left a significant gap: legislation that may violate fundamental rights now lacks a clear constitutional forum for challenge. The piece underscores a persistent ambiguity in …

Coercing Virtue Or Superintending Constitutional Order? A Comment On Munir Zulu And Celestine Mukandila V Attorney General, O'Brien Kaaba, Emmanuel N. Nyambe

SAIPAR Case Review

In Munir Zulu and Celestine Mukandila v Attorney General, the Constitutional Court of Zambia intervened for the first time in a constitutional amendment process before a bill was tabled, asserting its authority to oversee executive conduct in line with constitutional principles. While the author commends the Court’s departure from a historically passive judiciary, a pointed critique is offered of the judgment’s conceptual shortcomings. The analysis highlights the Court’s conflation of constituent and constituted power, its reliance on an inaccurate historical account of past amendments, and the jurisdictional inconsistency it created with the earlier Bill 10 ruling, all of which weaken …

The Attorney General V Rajan Mahthani (Appeal No. 4 Of 2020) [2025] Zmsc (24 July 2025): Judicial Recusal And Why It Is Important To Strike A Balance, Mwami Kabwabwa

SAIPAR Case Review

This contribution examines The Attorney General v Rajan Mahthani, a Supreme Court ruling on judicial recusal. The author critically assesses the Court’s insistence on proving actual, extrajudicial bias as a prerequisite for recusal. Though the importance of shielding the judiciary from frivolous motions is acknowledged, the piece warns that the Court’s rigid stance, paired with its admonishing tone, may undermine the right to a fair hearing guaranteed under Article 18 of the Constitution. Drawing on South African and Kenyan jurisprudence, the author proposes adopting a “reasonable apprehension of bias” standard that respects judicial independence while safeguarding public confidence in the …

Originalism’S Precedent Problem, James Bernstein

Northern Illinois University Law Review

This paper explores the tension between originalism and stare decisis in judicial decision-making. Originalism, which seeks to interpret the Constitution as understood at the time of its ratification, has gained bipartisan acceptance among judges. However, this interpretive approach faces challenges regarding precedent: How should originalist judges handle past decisions that deviate from the original public meaning of the Constitution? The paper examines this issue, particularly in light of originalists’ varied stances on the role of precedent.

Some originalists, like Antonin Scalia and Amy Coney Barrett, acknowledge the need for stare decisis to maintain legal stability, albeit with allowances for overturning …

Redistricting And The Origins Of The Good Faith Presumption, Leonard C. Brahin

Barry Law Review

Evidentiary and substantive presumptions are a well-established tool that courts employ when addressing a variety of legal problems. These presumptions streamline litigation, avoid debate over minor disputes, and ensure that the most important issues can be addressed. But these same presumptions just as frequently close the courthouse doors on meritorious claims and preemptively shut down litigation where a disputed issue exists.

One area this occurs is redistricting. In the last fifty years, the Supreme Court of the United States has expanded its substantive presumptions in redistricting matters to permit facially discriminatory redistricting plans. By invoking the presumption of good faith, …

Privacy In The Age Of Platforms: How Digital Advancements Are Outrunning Our Constitution, Haleigh Fagundes

Capstone Projects and Master's Theses

This project analyzes the procedural history of Fourth Amendment doctrine in the Supreme Court. This timeline begins with the 1928 case of Olmstead v. United States and proceeds with recent cases that resolve more modern concerns such as location tracking via cell-cite information, as seen in Carpenter v. United States (2018). Prevalent cases are analyzed through both majority and dissenting opinions to demonstrate the entire Courts’ attitude towards the interpretation. Though more recently the Court has moved towards expanding the expectation of privacy that one can assume from the Fourth Amendment, digital privacy has yet to be incorporated. The research …

Development And Practice Of Tribal Community Planning: Ensuring Indigeneity In The Planning Process, Jared E. Munster, Ph.D.

American Indian Law Journal

No abstract provided.