Constitutional Law Commons^™

Bakke, Lochner, And Law School: The Nobility Clause Versus A Republican Form Of Medicine, James E. Lobsenz

Maine Law Review

Alan Bakke, an unsuccessful medical school applicant, filed suit challenging the constitutionality of the minority admissions program administered by the Medical School of the University of California at Davis. The practice of reserving sixteen special places for minority students out of a total of 100 positions in the entering class, Bakke contended, constituted a denial of the equal protection of the laws guaranteed by the fourteenth amendment to the United States Constitution. Bakke's suit afforded the justices of both the California Supreme Court and the United States Supreme Court a unique opportunity to examine the substantive nature of the "equality" …

The Role Of Foreseeability In Jurisdictional Inquiry: Tyson V. Whittaker & Son, Inc., Philip M. Coffin Iii

Maine Law Review

When defining the extent of their jurisdiction over nonresident defendants, state courts must be ever mindful of the principle that "all assertions of state-court jurisdiction must be evaluated according to the standards set forth in International Shoe and its progeny. In deciding jurisdictional issues against this background of Supreme Court decisions, many courts have had considerable difficulty in ascertaining the precise extent of the amorphous and discretionary standards set forth in International Shoe and subsequent cases. In the recent decision of Tyson v. Whitaker & Son, Inc., the Maine Supreme Judicial Court was put to this task in deciding whether …

Maine Abortion Statues Of 1979: Testing The Constitutional Limits, Arlyn H. Weeks

Maine Law Review

In June of 1979 the 109th Maine Legislature enacted four statutes dealing with abortion. The public and legislative debate on these issues was intense and emotional. Due to the great scope of the subject, this Comment will be limited to discussion of the statutes dealing with informed consent and parental notification, which directly raise issues of individual constitutional rights. The constitutional implications of these two statutes will be examined, and the likely outcome of a constitutional challenge to each will be suggested. Because there are as yet no Supreme Court decisions directly on point for either statute as written, this …

Women Judges And Wikipedia, Sally Kenney

ConLawNOW

Although many academics may openly discourage their students from consulting it, Wikipedia is the go-to first port-of-call for information for scholarly research, journalists, and even judges. Its info boxes are the source for Google and artificial intelligence in general. Wikipedia is the largest and most widely used encyclopedia in history. Just as feminist scholars have broken into mainstream journals and gained a toehold within university presses, these sources have become increasingly irrelevant and unavailable behind paywalls. Instead, Wikipedia has emerged as the standard research source, but it presents significant barriers to entry for feminist scholars and subjects of women, feminism, …

Jarkesy, The Seventh Amendment, And Tax Penalties, Steve R. Johnson

University of Miami Law Review

In 2024, in the Jarkesy case, a divided Supreme Court held unconstitutional a provision of the Dodd-Frank Act that allowed the SEC to assert securities law anti-fraud penalties through administrative proceedings subject to judicial review. The Jarkesy majority concluded that the invalidated procedure violated the Seventh Amendment’s guarantee of jury trial in some civil cases.

The dissent predicted that the reasoning of Jarkesy could be applied outside of the securities law area, putting hundreds of other statutes at peril of constitutional invalidation. This Article examines one such possible “spillover.” The Article explores whether Jarkesy threatens the current procedures by which …

Beware Of The Dangers Of The State-Created Danger Doctrine: A Look At The Ninth Circuit's Approach, Julia Steiner

University of Miami Law Review

The Fourteenth Amendment applies to state, not private, actors. It, like the whole of our Constitution, operates as a negative restraint on government. The Due Process Clause thus forbids states from taking certain action—but it does not and cannot compel the state to act ab initio. These core concepts formed the basis of the Supreme Court’s decision in DeShaney v. Winnebago County, where the Court reaffirmed that the only instance where the state assumes an affirmative duty to provide safety and security is when the state itself restrains an individual from protecting themselves.

Yet, since DeShaney, the circuit …

Flaws In The Preemption Defense To Liability Claims Against Generic Drug Manufacturers, Lars Noah

University of Miami Law Review

More than a dozen years have passed since the U.S. Supreme Court decided that federal preemption protects manufacturers of generic (but not brand-name) drugs from most types of products liability claims. This seemingly arbitrary distinction sprang from a peculiarity in the regulations of the U.S. Food and Drug Administration (FDA). That agency soon thereafter proposed to modify its rules in order to eliminate this asymmetry in how the implied preemption defense worked to bar inadequate warning claims, but its effort ultimately failed, while lower courts have confronted some creative efforts to circumvent the special protection enjoyed by generic drug manufacturers. …

Justice, Human Rights, And The New Charisma Of Anti-Democratic Ideologies, Cardozo Law Institute In Holocaust And Human Rights (Clihhr), Floersheimer Center For Constitutional Democracy, Matthias Mahlmann

2025 Event Invitations

Democracies are under pressure worldwide – externally by authoritarian states and internally by political forces that spread anti-democratic ideologies even if masked by avowed concern for the people. While reasons are intensely debated, this talk critically revisits explanations for the charisma of post-democratic ideologies by (1) investigating normative foundations of the exacting and fragile project of democracy and its relation to human rights and (2) discussing human rights theory in times of widespread human rights skepticism and its meaning for crises of democracy. How can we defend the project of democracy in theory and practice?

Developments In The News Media Privilege: The Qualified Constitutional Approach Becoming Common Law, Lawerence J. Mullen

Maine Law Review

In late 1977 and early 1978, the Boston Globe published a series of articles about a Delaware corporation engaged in building fiberglass boats in New Hampshire. The articles reported a number of allegedly serious defects in the boats, some of which may have contributed to sinkings. Critical comments of boat owners, surveyors, Coast Guard officers, company employees and a repairman were included. The builder was given an opportunity to respond in part of one article. Provoked by this quotidien instance of investigative journalism, the boat builder brought a libel action against the Globe in federal district court. The boat builder's …

"Fighting Words" And The First Amendment In Maine: State V. John W., Deborah J. Ross

Maine Law Review

On April 1, 1979, John W. was driving his car, accompanied by his sister Maria. The car was stopped by a police officer who requested John's license and registration. Maria asked the officer why they had been stopped. When the officer remained silent, Maria became abusive and was arrested for disorderly conduct. John demanded to know what was going on. Ordered to get back into his car, John began shouting at the police: "Hey, turn around and come back here;" "Hey, you fucking pig, you fuckin' kangaroo;" "Fuck you." John was arrested and convicted in a juvenile proceeding of disorderly …

The Constitutional Law Of Defamation—Recent Developments And Suggested State Court Responses, Susan Gail Shorey

Maine Law Review

Prior to the 1964 decision in New York Times Co. v. Sullivan, defamation law in the United States was controlled by common law principles developed in the state courts. In New York Times the United States Supreme Court staked out an area of first amendment privilege, which limited the states' power to permit recovery in defamation actions brought by public officials. Later extensions of this constitutional privilege made it appear for a time that constitutional requirements would produce a unified nation-wide body of defamation law to replace the various common law rules followed in the fifty states. In view of …

The Development And Consequences Of The "Good Faith" Exception To The Exclusionary Rule And The Qualified "Good Faith" Immunity From Liability Under Section 1983, Philip M. Coffin Iii, Paul F. Driscoll

Maine Law Review

The remedies fashioned to redress violations of the fourth amendment to the United States Constitution continue to be the subject of much judicial, legislative, and scholarly inquiry. In striking the balance between the need to protect individual freedom and the need to protect society from criminal activity, the Supreme Court and Congress have developed two principal remedies for fourth amendment violations: the exclusionary rule and civil actions under 42 U.S.C. § 1983 or under theories of constitutional tort. on the development of both of these remedies it is assumed that their effectiveness is the true measure of fourth amendment liberties. …

Masthead

UC Law Constitutional Quarterly

No abstract provided.

New York's Constitutional Guarantee Of Environmental Rights, Katrina Fischer Kuh, Nicholas A. Robinson, Scott Fein

Elisabeth Haub School of Law Faculty Publications

New York is embarking on the interpretation and implementation of potentially transformative constitutional reform, the addition of Article I, § 19 to New York’s Bill of Rights, which provides that “Each person shall have the right to clean air and water, and a healthful environment.” To ensure the fulsome and effective implementation of Article I, § 19, and give effect to the intent of the legislators and voters who adopted it, it will be important to provide substantive guidance to courts, government actors, and litigants in the interpretation and application of the new constitutional text. In Pennsylvania and other states, …

Disagreement And Historical Argument Or How Not To Think About Removal, Andrea Scoseria Katz, Noah A. Rosenblum, Jane Manners

University of Michigan Journal of Law Reform

Scholars have debated the reach of the President’s power to remove government officers for over one hundred years. This old fight is now suddenly urgent as President Trump asserts far-reaching powers to control the federal bureaucracy and the Supreme Court transforms Unitary Executive Theory into caselaw. Yet the scholarly case for an indefeasible presidential removal power has never been weaker.

This Essay continues an ongoing conversation about how to read some critical early republic evidence about removal. It briefly recapitulates the stakes of the disagreement before offering in-depth analyses of developments in Pennsylvania removal practice, including a reading of the …

Trump V. United States And The Half-Originalist Presidency, Christine Kexel Chabot

University of Michigan Journal of Law Reform

The Supreme Court’s recent decision in Trump v. United States has been criticized for its ahistorical approach to presidential immunity. This Essay offers the first account of the historical mismatch between the Trump Court’s decision to immunize presidential removal power and Founding era conceptions of the presidency. Unlike the presumptive immunity that the Court recognized for most other official presidential acts, the immunity afforded for presidential removal power is absolute. The Court ruled that the President’s “unrestricted power of removal” can never be regulated by Congress or considered as evidence of wrongdoing, even when the President threatens removal to effectuate …

The Misuse Of Ratification-Era Sources By Unitary Executive Theorists, Jed Handelsman Shugerman

University of Michigan Journal of Law Reform

This symposium essay suggests that, given an ostensibly originalist Supreme Court, the future depends on getting the past right. The unitary executive theory is approaching its political and doctrinal zenith in 2025, at the very moment it is approaching an evidentiary crisis. This essay details that crisis: a subset of misuses and misrepresentations of sources in the unitary executive scholarship. This subset focuses on serious misrepresentations of the Ratifications debates.

The Ratification debates appropriately have become the primary source of evidence for original public meaning, the dominant theory of originalism. The Ratification debates have always been a significant problem for …

Antiquated Practices In Mississippi That Are Impeding The Right To Vote, Amanda Noel

SLU Law Journal Online

Mississippi is historically one of the most difficult states to cast a vote, especially for marginalized groups. Despite voting becoming more accessible throughout the United States, recently, Mississippi courts and legislature have sought to reverse years of progress by denying those convicted of felonies the right to vote upon reform and by making it a crime to assist others in casting absentee and mail-in ballots. In this paper, Amanda Noel discusses the implications of Mississippi’s attempts at disenfranchisement and proposes feasible solutions to aid those in accessing their fundamental right to vote.

What’S Past Is Prologue: The Effects Of Shelby County V. Holder In Georgia, Jane Delworth

SLU Law Journal Online

The Supreme Court’s decision in Shelby County v. Holder, which struck down Section 4 and, by extension, Section 5 of the Voting Rights Act, created a clear path for discriminatory voting laws to take hold. This article explores how the Supreme Court decision paved the way for second-generation barriers to voting, which legally diminish the influence of minority voters and in some cases, effectively block their participation altogether. It also examines Georgia’s role as a key state advancing these second-generation barriers to voting, alongside proposed legislation aimed at preventing these discriminatory practices before they can impact voters.

Amendment 7 Ballot Candy And The Single Subject Rule: How The Legislative Supermajority Amended The State Constitution To Limit Voter Choice, Joshua A. Jones

SLU Law Journal Online

During the most recent general election, Missouri voters passed Amendment 7, a legislative ballot measure which erected bulwarks around an election process that limits voter choice. This article will discuss some of Missouri’s constitutional protections against deceptive ballot provision packages, specifically the single subject rule, as well as why they necessarily fall short of total efficacy. It does not argue for a more stringent application of the rules, because doing so would have implications for one of Missourians’ most powerful tools of direct democracy. The paper will examine Amendment 7 for its use of “ballot candy” that legislators successfully dangled …