Constitutional Law Commons^™

Isn't It Ironic? The Undermining Of American Public Policy By American Tax Law, And The Ramifications On Middle East Peace, Amanda Berman

Cardozo Public Law, Policy & Ethics Journal

The note critiques the broad and vague definition of "charitable" under U.S. tax law, particularly in the context of domestic organizations operating internationally. It argues that the current system allows organizations to act contrary to U.S. public policy while receiving tax-exempt status, and it calls for reform to prevent the misuse of tax-deductible funds for activities that undermine government policies. The analysis focuses on the IRS's oversight failures and the need for clearer guidelines to ensure charitable organizations align with public interest and policy goals.

The Two Faces Of American Freedom: A Reply, Aziz Rana

Cornell Law Faculty Publications

No abstract provided.

Legislating Preemption, Jamelle C. Sharpe

William & Mary Law Review

Federal preemption is perhaps the most important public law issueof the day. The stakes in preemption cases are enormous, as preemption determines whether the federal government or the statescontrol regulatory policy in a host of politically controversial contexts. Congress clearly has primary constitutional authority insetting federal preemption policy, but, for numerous political and practical reasons, cannot be solely responsible for its implementation.Determining which organ of the federal government is best at implementing preemption policy has therefore become the central preoccupation of the academic literature. While this comparative institutional analysis is certainly important in allocating preemptionpolicy-making business, it has elided a …

The Fourth Amendment Rights Of Children At Home: When Parental Authority Goes Too Far, Kristin Henning

William & Mary Law Review

Although it is virtually undisputed that children have some Fourth Amendment rights independent of their parents, it is equally clear that youth generally receive less constitutional protection than adults. In a search for continuity and coherence in Fourth Amendment jurisprudence involving minors, Professor Henning identifies three guiding principles—context, parental authority, and the minor’s capacity—that weave together children’s rights cases. She argues that parental authority too often prevails over children’srights, even when context and demonstrated capacity would supportaffirmation of those rights. Context involves both the physical settingin which Fourth Amendment protections are sought and the nature of the privacy interest at …

Citizens, United And Citizens United: The Future Of Labor Speech Rights?, Charlotte Garden

William & Mary Law Review

Within hours of its announcement, the Supreme Court’s decision in Citizens United v. FEC came under attack from progressive groups. Among these groups were some of America’s largest laborunions—even though the decision applies equally to unions and for profit corporations. The reason is clear: there exist both practical andstructural impediments that will prevent unions from benefittingfrom Citizens United to the same extent as corporations. Therefore,Citizens United stands to unleash a torrent of corporate electioneering that could drown out the countervailing voice of organized labor.

This Article, however, takes a broader view of Citizens United to explore a possible silver lining …

Madison's Full Faith And Credit Clause: A Historical Analysis, Charles M. Yablon

Cardozo Law Review

The Defense of Marriage Act (DOMA) has created a new wave of interest in the Full Faith and Credit Clause and its apparent contradictions. Important recent scholarship has shown that American lawyers in the eighteenth century often viewed the term "full faith and credit" as referring to an evidentiary rule. This interpretation ameliorates, but does not actually resolve, the apparent conflict between the first sentence of the Clause, which seems to create a mandatory rule of sister state deference, and the second sentence of the Clause, which seems to give Congress plenary power to abrogate that rule. Rather than seek …

A Brave New World Of Stop And Frisk, Ronald J. Bacigal

Law Faculty Publications

In this article, the author Ron Bacigal discusses the editorials, The Shame of New York by Bob Herbert and Fighting Crime Where the Criminals Are by Heather MacDonald. These editorials were prompted by the New York City Police Department's release of figures regarding "stop and frisk" incidents within New York City.' MacDonald and Herbert reacted to the same statistical report by putting two very different spins on the raw data. While it's always helpful to compile empirical evidence, Bacigal suggests that we also need to look beyond the mere numbers. If you put aside anecdotal versions of encounters between minorities …

Remarks Of William Van Alstyne On The Brandenburg Panel, William W. Van Alstyne

Faculty Publications

No abstract provided.

Iqbal, Al-Kidd And Pleading Past Qualified Immunity: What The Cases Mean And How They Demonstrate A Need To Eliminate The Immunity Doctrines From Constitutional Tort Law, John M. Greabe

William & Mary Bill of Rights Journal

The Supreme Court’s decisions in Ashcroft v. Iqbal and Ashcroft v. al-Kidd contain issue-framing statements indicating that a constitutional tort plaintiff is required to plead facts sufficient to establish the inapplicability of the qualified immunity defense. Yet, framing the issue in this way ignores the Court’s earlier decisions in Gomez v. Toledo and Crawford-El v. Britton and is at odds with the established law of pleading; a plaintiff is not required to anticipate an affirmative defense and negate its applicabilityin the complaint. These cases thus raise a number of questions—Does the Court really mean what its issue-framing statements suggest? If …

The Religious Liberty Of Judges, Daniel R. Suhr

William & Mary Bill of Rights Journal

This Article begins by reviewing the government employee line of cases, starting with United Public Workers v. Mitchell in 1947.29 The first section concludes that the modified Pickering balancing test set forth in United States v. National Treasury Employees Union (NTEU) is the appropriate level of scrutiny for judicial conduct rules. The body of this Article reviews ways in which the four canons of the ABA Model Code of Judicial Ethics and official interpretations of and rulings regarding them limit the religious activities of judges. I conclude that numerous applications of the Model Code are unconstitutional infringements on judges’ First …

The Auto-Authentication Of The Page: Purely Written Speech And The Doctrine Of Obscenity, Ryen Rasmus

William & Mary Bill of Rights Journal

No abstract provided.

The Judicial Power And The Inferior Federal Courts: Exploring The Constitutional Vesting Thesis, A. Benjamin Spencer

Faculty Publications

Although the Constitution vests the "Judicial Power" of the United States in the Supreme Court and in any inferior courts that Congress establishes, both Congress and the Court have long propounded the traditional view that the inferior courts may be deprived cognizance of some of the cases and controversies that fall within that power. Is this view fully consonant with the history and text of Article III? One possible reading of those sources suggests that the Constitution vests the full Judicial Power of the United States in the inferior federal courts, directly extending to them jurisdiction over matters that Congress …

September 28, 2011: The End Of Religious Legal Theory, Bruce Ledewitz

Hallowed Secularism

Blog post, “The End of Religious Legal Theory“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

State Constitutions As Interactive Expressions Of Fundamental Values, Justin R. Long

Law Faculty Research Publications

No abstract provided.

September 25, 2011: Justice Scalia At Duquesne Law School, Bruce Ledewitz

Hallowed Secularism

Blog post, “Justice Scalia at Duquesne Law School“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

September 22, 2011: Unions And The Separation Of Church And State, Bruce Ledewitz

Hallowed Secularism

Blog post, “Unions and the Separation of Church and State“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

September 19, 2011: No Clergy At The 9/11 Ceremony, Bruce Ledewitz

Hallowed Secularism

Blog post, “No Clergy at the 9/11 Ceremony“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

September 14, 2011: What Does A Resurgent Marxism Look Like?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Does a Resurgent Marxism Look Like?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

September 10, 2011: Remember The Ten Year Anniversary Of 9/11 By Eliminating Firefighter Unions, Bruce Ledewitz

Hallowed Secularism

Blog post, “Remember the Ten Year Anniversary of 9/11 By Eliminating Firefighter Unions“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Grutter V. Bollinger 123 S. Ct. 2325 (2003), Soraya Fata, Amy Schumacher

American University Journal of Gender, Social Policy & the Law

No abstract provided.