Constitutional Law Commons^™

Indonesia’S Identity Politics And Populism: Disruption To National Cohesion, Firdaus Arifin, Rosa Tedjabuwana, Subelo Wiyono, Mohd Kamarulnizam Bin Abdullah

Jurnal Civics: Media Kajian Kewarganegaraan

The principle of unity in diversity in Indonesia is increasingly challenged by the rise of identity politics and populism. These dynamics emerge as a confluence of pragmatic political strategies and the mobilization of sectarian groups, often leveraging religious and ethnic sentiments during election campaigns. While effective in garnering popular support, such tactics undermine national unity and social cohesion, serving as a shortcut to power at the cost of societal harmony. This issue is particularly pronounced in district head elections, where the politicization of tribal, religious, racial, and inter-community identities has become pervasive. These elections, intended to reflect democratic principles, are …

The Bro-Economy And The Bro-Democracy, Floersheimer Center For Constitutional Democracy, Michael C. Pollack, Michael Abramowicz, Jennifer Lawless, Craig Holman

2024–2025 Flyers

Cardozo’s Professor Michael Pollack will host Michael Abramowicz (Professor, George Washington University Law School), Jennifer Lawless (Professor, University of Virginia), and Craig Holman (Government Affairs Lobbyist, Public Citizen) to discuss the manosphere, election betting, and prediction markets, and how these forces shape our democracy for good and for ill.

The Bro-Economy And The Bro-Democracy, Floersheimer Center For Constitutional Democracy, Michael Pollack, Michael Abramowicz, Jennifer Lawless, Craig Holman

2025 Event Invitations

Cardozo’s Professor Michael Pollack will host Michael Abramowicz (Professor, George Washington University Law School), Jennifer Lawless (Professor, University of Virginia), and Craig Holman (Government Affairs Lobbyist, Public Citizen) to discuss the manosphere, election betting, and prediction markets, and how these forces shape our democracy for good and for ill.

Detention Of Foreign Seafarers And Vessels: Pollution Prevention Or Piracy?, Edward Maccoll, Marshall Tinkle

Ocean and Coastal Law Journal

The purpose of this Article is to interrogate the legal basis for holding foreign crewmembers against their will in connection with APPS prosecutions. Part I examines the underlying justification for prosecuting foreign vessel owners for foreign conduct under APPS. It first discusses the international anti-pollution regimen from which APPS emerged. Next, the Article explores the handful of cases in which APPS prosecutions have been challenged and for the most part sustained, and then offers a critique of the rationale for such prosecutions. Part II explores the lawfulness of the techniques to detain foreign crewmembers and press those crewmembers into the …

Slow, Expensive, And Out Of Control: A Statutory Solution To The Competency Crisis, Robert Barnhart

Maine Law Review

The United States Constitution guarantees both the right to a speedy trial and the right to be competent to stand trial. United States Supreme Court decisions have recognized both of these rights but left the hard work of implementing them to legislatures and rulemakers. After turning the technicalities over to the states, the Supreme Court has generally stayed out of the business of setting bright-line rules to follow, both for setting speedy trial limits and ensuring defendants are evaluated and restored to competency. This delegation has led to a dual crisis. Cases are not resolved on time, and a substantial …

Statutes And Special Interests, Kirsten Matoy Carlson

Northwestern University Law Review

Who really decides what statutes say? Most Americans think that special interests play an outsized role in our lawmaking processes. Yet empirical studies have produced little evidence that special interests get everything, or even most of, what they ask for from Congress. This Article takes an innovative new approach to tackling the difficult question of how advocates influence legislation. It presents the first comprehensive empirical study of how advocates influence the law through amendments in the legislative process. The Article analyzes an original dataset of 2,137 witnesses and their testimony at referral hearings on 108 Indian-related bills in the 97th …

Discrimination, Private Liberty, And Public Accommodations Law, Jacob Eisler

Texas A&M Law Review

In 303 Creative LLC v. Elenis, a fiercely divided Supreme Court opined that commercial vendors enjoy First Amendment protections to decline to serve customers, even where such a choice is prohibited by state public accommodations regimes. In identifying a clash between personal liberty and state instruction, the decision could radically reshape the public accommodations statutory regime, which prevents discrimination against customers from minority and vulnerable groups. Standard constitutional interpretation cannot explain 303 Creative, and existing doctrinal and scholarly frameworks will struggle to integrate the decision into the already convoluted narrative of public accommodation law.

This Article is the …

The Excessive Fines Clause In The Federal Courts: A Quarter-Century Of Narrowing, Michael O'Hear

Texas A&M Law Review

The Eighth Amendment prohibits “excessive fines,” but what exactly does “excessive” mean? The question has taken on some urgency in recent years as American legislatures have sharply increased the economic penalties associated with criminal convictions. In 1998, in United States v. Bajakajian, the Supreme Court for the first time established a test of sorts to determine whether an economic penalty is “excessive” in violation of the Eighth Amendment. The test was not without its ambiguities but offered some potentially robust protection against the rising tide of fines, fees, forfeiture, and restitution. However, the promise of Bajakajian has been undermined …

An "Exceedingly Persuasive Justification": Affirmative Action As Protected By The Free Exercise Clause, Kristin O'Bryan Pereira

Pepperdine Law Review

In 2023, the Supreme Court’s Students for Fair Admissions, Inc. v. Harvard (SFFA) decision effectively outlawed the use of race-based affirmative action programs in higher education, holding that such programs violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution and Title VI of the Civil Rights Act of 1964. Meanwhile, the current Supreme Court has been unprecedently friendly to claimants seeking Free Exercise Clause protection from government restraints on religious exercise. The intersection between these two areas of law has implications for a category of schools not explicitly considered in the SFFA decision—private, religious schools …

In The Age Of Garcetti: Public Teachers' Free Speech Rights Within The Transgender-Student Debates, Hannah Bradvica

Pepperdine Law Review

A culture war over gender identity is playing out on the school playground, as conservative lawmakers across the country have introduced and implemented various pieces of anti-trans legislation focused on stripping away the privacy and expression of transgender students’ identities. An important question within this legislation remains: may public school teachers be exempt from following these policies? This Comment examines teachers’ free speech rights within two contexts: mandated parental notification of transgender-student policies and guidelines requiring teachers to adhere to students’ preferred pronouns. It considers the viability of compelled-speech claims brought by teachers, applying First Amendment jurisprudence and Garcetti v. …

Kennedy V. Louisiana And The Future Of The Eighth Amendment, Alexandra L. Klein

Pepperdine Law Review

In 2023, Florida passed a law permitting the imposition of the death penalty for the rape of a child under twelve. Tennessee enacted a similar law in 2024. These laws conflict with Kennedy v. Louisiana, a 2008 decision in which the Supreme Court held that imposing the death penalty for the rape of a child violated the Eighth Amendment’s Cruel and Unusual Punishments Clause because it was inconsistent with the evolving standards of decency. Legislators in Florida and Tennessee have expressed their hope that the Supreme Court will overrule Kennedy v. Louisiana. These laws, which resemble state attempts to undo …

The Enduring Crisis In Teaching Constitutional Law, Patrick J. Sobkowski

Emory Law Journal Online

Constitutional law is in crisis. The 6-3 conservative majority of the Supreme Court has generally produced the desired results of the current Republican Party. This has led to calls of illegitimacy, activism, and partisanship from left-liberal and progressive scholars and politicians. In 2024, Jesse Wegman published an opinion essay in the New York Times documenting these criticisms from progressive law professors. In this essay, I argue that there is nothing unique about the current crisis. Rather, the political nature of cases is a result of “juristocracy,” which knows no party. In light of this, I provide important context and argue …

Legislative Reforms To End Lawfare By State And Local Prosecutors, Elizabeth Beske

Legislative Testimony & Comments

WASHINGTON, D.C. - The House Judiciary Subcommittee on the Constitution and Limited Government will hold a hearing on Tuesday, March 4, 2025, at 2:00 p.m. ET. The hearing, "Legislative Reforms to End Lawfare by State and Local Prosecutors," will examine the use of lawfare tactics by the Biden-Harris Administration to weaponize the rule of law against political opponents. It will further highlight legislative reforms to end politically motivated state and local prosecutions.

National Origin Bias And U.S. Public Opinion On Supreme Court Nominees: Evidence From A Conjoint Experiment, Christopher P. Dinkel, Andrew Ifedapo Thompson, Marc C. Mcallister

Pace Law Review

As the ultimate arbiter of the interpretation of federal law and the U.S. Constitution, the U.S. Supreme Court has a significant impact on businesses and individuals across an increasingly diverse country. Although the vast majority of the Justices who have served on the Court have been white males, recent Presidents have appointed nominees who have brought greater racial and gender diversity to the Court. Despite these efforts, however, not a single U.S. Supreme Court Justice in the past six decades has been born abroad, even though Americans who were born outside the United States constitute nearly a tenth of the …

Diabetes Behind Bars: Dissecting Diabetic Deliberate Indifference And Delivering Inmates A More Workable Standard Under The Fourth Amendment, Maggie J. Malloy

Cleveland State Law Review

This Note examines the inadequacies of the current Eighth Amendment framework in safeguarding the constitutional rights of diabetic inmates. It contends that the subjective element of the two-pronged Eighth Amendment claim—often used to assess deliberate indifference—leads to unfair and inconsistent outcomes. To address these shortcomings, this Note draws inspiration from the objective analysis employed in Fourth Amendment excessive force claims, specifically referencing the Supreme Court’s decision in Graham v. Connor. This new framework eliminates the subjective element, and instead replaces it with three objective factors courts should consider when evaluating Eighth Amendment violations related to diabetic medical care. Through …

From Deliberate Indifference To Civil Negligence: Protecting Male Prisoners From Sexual Violence In United States Prisons, Olivia Martini

Immigration and Human Rights Law Review

Sexual violence in United States prisons is a pervasive issue that disproportionately impacts male inmates, revealing systemic failures in the current legal framework designed to protect incarcerated individuals. The deliberate indifference standard, established by the United States Supreme Court, imposes an excessively high burden of proof on survivors, requiring evidence of prison officials’ subjective awareness of specific, substantial risks.

This article critiques the shortcomings of the deliberate indifference standard and proposes a civil negligence framework as a promising alternative. Grounded in an objective duty of care, a civil negligence approach emphasizes proactive measures that institutions must take to avoid liability. …

Pleading For The Fifth: How Assisting Law Enforcement For T & U Visas Violates Immigrants’ Right Against Self-Incrimination, Maya Huffman

Immigration and Human Rights Law Review

Human trafficking is a transnational crime that has decimated the lives of many innocent victims, especially those seeking to immigrate to the United States. In 2000, Congress enacted the Trafficking Victims Protection Act, which created T and U visas for victims of severe forms of trafficking and other crimes, respectively. Although these visas were created to protect especially vulnerable immigrants, they ultimately are more harmful than helpful. A condition for being granted a T or U visa is that the applicant must assist law enforcement in the investigation and prosecution of the perpetrator of the crime they are a victim …

The Relationship Between Religion And The State “Islam And The Constitution As A Model”, Ahmad Hosni Ashqar, Majed Abbadi

An-Najah University Journal for Research - B (Humanities)

Objective: This study aims to investigate the relationship between religion and the state within its constitutional framework when constitutional texts include a specific religion for the state, which makes this - when applied legislatively - a thorny and ambiguous issue. Methodology: This study, through the descriptive analytical approach, examines the different forms of possible relations between religion and the state to develop democratic constitutions. Results: The study concluded several results, the most prominent of which is that considering Islam the official religion of the state involves respecting the rights of Muslims to practice their duties and organize …

Adopting Permissioned Blockchain Models To Enhance Consumer Protection And Comply With Consumer Protection Laws, Erika Buenrostro

Featured Student Work

Blockchain technology enables decentralized, peer-to-peer transactions and data management, offering transparency while raising data privacy and consumer protection concerns. As the current administration promotes blockchain adoption, including cryptocurrency, more users and businesses will likely integrate the technology. This thesis provides a framework to help businesses adopt blockchain while ensuring compliance with the California Consumer Privacy Act (CCPA). To prevent data mishandling and legal penalties, consumers and businesses must stay informed about the risks and evolving state privacy laws.

A CCPA-compliant approach retains blockchain’s benefits through a permissioned model, storing only non-personal (neutral) data on-chain while keeping personal information off-chain in …

Growing Pains: The Evolution Of Jlwop Sentences In Washington, Selena M. Galvan

Washington Law Review

In 2021, the Washington State Supreme Court abolished de facto life sentences— those that amount to a life sentence despite not carrying the life without parole label—for juvenile offenders, finding them unconstitutional under article 1, section 14 of the Washington Constitution. In 2022, less than a year later, the Court reversed course in the case of State v. Anderson by upholding a sixty-one-year sentence for crimes a juvenile offender committed at age seventeen. The Washington State Supreme Court’s decision in Anderson runs contrary to what modern science demonstrates about the diminished culpability of juvenile offenders, and it runs contrary to …