Constitutional Law Commons^™

Rights, Reservations, And Religion; International Human Rights Law And The Status Of Women, Mark Goldfeder

Scholarly Works

While human rights law in its current form is less than fifty years old, the issues that it grapples with are much, much older. People oftentimes dismiss religion or religious norms as being out of date, close-minded, or old-fashioned, and label religious views as discriminatory in theory or even in practice. In reality, religions have been dealing with human rights issues since ancient times, and in some ways have laid the groundwork for the very modern discussions that have supplanted them. The answers that religions give, therefore, deserve at the very least a careful and respectful analysis before they are …

Technological Leap, Statutory Gap, And Constitutional Abyss: Remote Biometric Identification Comes Of Age, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Federal interest in using facial recognition technology (“FRT”) to collect, analyze, and use biometric information is rapidly growing. Despite the swift movement of agencies and contractors into this realm, however, Congress has been virtually silent on the current and potential uses of FRT. No laws directly address facial recognition—much less the pairing of facial recognition with video surveillance—in criminal law. Limits placed on the collection of personally identifiable information, moreover, do not apply. The absence of a statutory framework is a cause for concern. FRT represents the first of a series of next generation biometrics, such as hand geometry, iris, …

Significant Entanglements: A Framework For The Civil Consequences Of Criminal Convictions, Colleen F. Shanahan

Georgetown Law Faculty Publications and Other Works

A significant and growing portion of the United States population is or has recently been in prison. Nearly all of these individuals will face significant obstacles as they struggle to reintegrate into society. A key source of these obstacles is the complex, sometimes unknown, and often harmful collection of civil consequences that flow from a criminal conviction. As the number and severity of these consequences have grown, courts, policymakers, and scholars have struggled with how to identify and understand them, how to communicate them to defendants and the public, and how to treat them in the criminal and civil processes. …

Considering The Libel Trial Of Émile Zola In Light Of Contemporary Defamation Doctrine, Peter A. Zablotsky

Touro Law Review

Touro Law School's three-day conference on the Dreyfus affair provided an opportunity to re-examine the libel trial Émile Zola. A modern view on tort law is provided to analyze this case as if it unfolded today.

Municipal Liability And Liability Of Supervisors: Litigation Significance Of Recent Trends And Developments, Karen Blum, Celeste Koeleveld, Joel B. Rudin, Martin A. Schwartz

Touro Law Review

"The purpose of this presentation is to examine two recent Supreme Court decisions, Connick v. Thompson and Ashcroft v. Iqbal with an eye to their impact on how lower federal courts will assess such claims in the wake of new constraints imposed by these cases. The focus of the discussion will be on developments in single-incident liability cases after Connick and supervisory liability claims after Iqbal."

A Criminal Quartet: The Supreme Court's Resolution Of Four Critical Issues In The Criminal Justice System, Richard Klein

Touro Law Review

No abstract provided.

Assessing The Impeachment Of President Bill Clinton From A Post 9/11 Perspective, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

The impeachment of President Clinton was more a circus than a serious effort to remove the President of the United States. The reason is simple: Few people--in the Congress or the country--wanted to remove him or believed the impeachment effort would actually result in his removal. Instead, it was a partisan political effort to embarrass Clinton and "send a message" of disapproval. Congress was attaching a "scarlet letter." But this was an indulgence that posed considerable danger that few in Congress considered. In particular, few tried to assess the potential impact this use of the process would have on the …

The Cathedral Engulfed: Sea-Level Rise, Property Rights, And Time, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

Sea-level rise will require many new initiatives in land use regulation to adapt to unprecedented climate conditions. Such government actions will prompt regulatory and other takings claims, and also will be shaped by apprehension of such claims. This article analyzes the categories of land use regulations and other government initiatives likely to be enacted to adapt to sea-level rise and anticipates the takings claims that may be brought against them. In addition to hard and soft coastal armoring, the article considers regulations intended to force or induce development to retreat from rising waters. Retreat regulations present difficult takings problems, because …

The Disdain Campaign, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

A response to Pamela S. Karlan, The Supreme Court 2011 Term Forward: Democracy and Disdain, 126 Harv. L. Rev. 1 (2012).

In her Foreword, Professor Pamela Karlan offers a quite remarkable critique of the conservative Justices on the Supreme Court. She faults them not so much for the doctrines they purport to follow, or outcomes they reach, but for the attitude they allegedly manifest toward Congress and the people. “My focus here is not so much on the content of the doctrine but on the character of the analysis.” She describes Chief Justice Roberts’s opinion of the Court as …

Where Liberty Lies: Civil Society And Individual Rights After 9/11, David Cole

Georgetown Law Faculty Publications and Other Works

Had someone told you, on September 11, 2001, that the United States would not be able to do whatever it wanted in response to the terrorist attacks of that day, you might well have questioned their sanity. The United States was the most powerful country in the world, and had the world’s sympathy in the immediate aftermath of the attacks. Who would stop it? Al Qaeda had few friends beyond the Taliban. As a historical matter, Congress and the courts had virtually always deferred to the executive in such times of crisis. And the American polity was unlikely to object …

Faith And Fidelity: Originalism And The Possibility Of Constitutional Redemption, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay reviews Constitutional Redemption: Political Faith in an Unjust World by Jack Balkin (2011) and Living Originalism by Jack M. Balkin (2011).

Contemporary scholarly debates about originalism and living constitutionalism are filled with claims about the political valence of these two theories. Here are some examples: "Originalism remains even now a powerful vehicle for conservative mobilization. ..." "[L]iving constitutionalism...has been at the core of progressive constitutional thought since the 1970s." "[A]ny reasonably well-informed observer knows that the term 'living Constitution' encodes liberal sympathies, just as originalism encodes conservative ones. ..." "[O]riginalism cannot easily be appropriated to progressive constitutional arguments." …

Affordable Care Act Litigation: The Supreme Court And The Future Of Health Care Reform, Lawrence O. Gostin, Kelli K. Garcia

Georgetown Law Faculty Publications and Other Works

In Florida v. HHS, a lawsuit brought on behalf of 26 states challenging the constitutionality of the Patient Protection and Affordable Care Act (ACA), the Supreme Court will determine the future direction of health care reform in the United States. During the unprecedented 5-1/2 hours of oral arguments, the Court will hear 4 issues: the individual purchase mandate, severability, the Medicaid expansion and the Anti-Injunction Act.

The states challenging the ACA maintain that the purchase mandate uniquely penalizes individuals for failing to purchase insurance. Uninsured individuals, however, rarely do nothing. Instead, they self-insure, rely on family, and cost-shift to …

Who Owns The Soul Of The Child?: An Essay On Religious Parenting Rights And The Enfranchisement Of The Child, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

At common law, and (for most of the nation's history) under state statutory regimes, the authority of the parent to direct the child's upbringing was a matter of duty, not right, and chief among parental obligations was the duty to provide the child with a suitable education. It has long been a legal commonplace that at common law the parent had a "sacred right" to the custody of his or her child, that the parent's right to control the upbringing of the child was almost absolute. But this reading of the law is sorely anachronistic, less history than advocacy on …

The Limits Of Government Regulation Of Science, John D. Kraemer, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

The recent controversy over the National Science Advisory Board for Biosecurity’s (NSABB) request that Science and Nature redact key parts of two papers on transmissible avian (H5N1) influenza reveal a troubled relationship between science and security. While NSABB’s request does not violate the First Amendment, efforts to censor the scientific press by force of law would usually be an unconstitutional prior restraint of the press absent a compelling state interest. The constitutional validity of conditions on grant funding to require pre-publication review of unclassified research is unclear but also arguably unconstitutional.

The clearest case where government may restrict publication is …

Health Care And The Illegal Immigrant, Patrick J. Glen

Georgetown Law Faculty Publications and Other Works

The question of whether illegal immigrants should be entitled to some form of health coverage in the United States sits at the uneasy intersection of two contentious debates: health reform and immigration reform. Befitting this place, the rhetoric surrounding the issue has been exponentially heightened by the multiplying effects of combining two vitriolic debates. On one side, it is argued that the United States has a moral obligation to provide health care to all those within its borders needing such assistance. On the other, it is argued with equal force that those illegally present in this country should not be …

Does The Constitution Protect Economic Liberty?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The author defends the proposition that the Court in Lochner v. New York was right to protect the liberty of contract under the Fourteenth Amendment. He does not defend its use of the Due Process Clause to reach its result. As he explains, the Court should have been applying the Privileges or Immunities Clause. Nor does he contend that the Court was correct in its conclusion that the maximum‐hours law under consideration was an unconstitutional restriction on the liberty of contract. Although the statute may well have been unconstitutional, the author does not take the time to evaluate that claim. …

The First Amendment’S Borders: The Place Of Holder V. Humanitarian Law Project In First Amendment Doctrine, David Cole

Georgetown Law Faculty Publications and Other Works

In Holder v. Humanitarian Law Project, the Supreme Court’s first decision pitting First Amendment rights against national security interests since the terrorist attacks of September 11, 2001, the Court appears to have radically departed from some of the First Amendment’s most basic principles, including the maxims that speech may not be penalized because of its viewpoint, that even speech advocating crime deserves protection until it constitutes incitement, and that political association is constitutionally protected absent specific intent to further a group’s illegal ends. These principles lie at the core of our political and democratic freedoms, yet Humanitarian Law Project …

Depoliticizing Federalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In his great biography of President Andrew Jackson, Arthur Schlesinger, Jr. celebrated Jackson’s defense of the rights of states and opposition to federal power. Yet as a mid-twentieth century liberal, Schlesinger was a strong supporter of the federal government and an opponent of states’ rights. Was Schlesinger’s position inconsistent? He did not think so, and neither does the author. In Jackson’s time, an entrenched economic elite controlled the federal government and used federal power to dominate the lower classes. State governments served as a focal point for opposition to this domination. By mid-twentieth century, the federal government was an engine …

Stare Decisis In An Originalist Congress, Joel Alicea

Scholarly Articles

The concern here is with the normative status of legislative precedents for an originalist Congress: Should an originalist legislator give any weight to previous legislative constitutional judgments? This Note does not attempt to articulate the specific criteria an originalist legislator (or judge, for that matter) should use in deciding whether to retain a particular precedent. That question is a distinct inquiry for another day. Part I briefly reviews the literature on originalist extrajudicial constitutional interpretation as well as the scholarship on legislative stare decisis. Part II examines five common arguments for adherence to precedent in a judicial setting and analyzes …

The Anti-Injunction Act, Congressional Inactivity, And Pre-Enforcement Challenges To Section 5000a Of The Tax Code, Kevin C. Walsh

Law Faculty Publications

Section 5000A of the Tax Code is one of the most controversial provisions of federal law currently on the books. It is the minimum essential coverage provision of the Patient Protection and Affordable Care Act ("ACA" or "Act")-a provision more popularly known as the individual mandate. Opponents challenged this provision immediately upon its enactment on March 23, 2010. The Supreme Court is poised to hear arguments about its constitutionality in one of these challenges, just over two years later.

There is a puzzle surrounding the Supreme Court's consideration of these cases. Everyone seems to want an answer to the question …