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Solidifying Supremacy Clause Immunity
Get PDFStates have often taken different approaches to polarizing issues such as the legalization of marijuana, voting rights, and gun safety. Generally, the federal government has stayed out of the fray honoring the concept of the “states as laboratories.” That is, until recently. With increasing debate among political leaders and diverging viewpoints among Department of Justice officials, clashes between federal officers and state governments have increased. But what happens to a federal officer caught in the crossfire, charged by a state prosecutor for breaking state criminal law while attempting to enforce federal law? The answer lies in the doctrine of Supremacy Clause immunity. As the issue has seldom arisen, scholarship and case law on the subject is limited. In light of the rise in federal-state disputes, and considering the competing constitutional concerns and the criminal charges federal officers could face, a solidified framework for handling these types of cases is desperately needed. Moreover, these cases often involve motions to dismiss under Federal Rule of Criminal Procedure 12(b)(6), which presents a unique procedural question: whether a judge or jury should decide disputed issues of material fact. We propose a framework wherein juries should decide disputed issues of material fact in Supremacy Clause immunity cases. Further, we propose a Supremacy Clause immunity test that more thoroughly defines when (1) a federal officer is authorized by federal law to take certain actions, and (2) when a federal officer’s actions are “necessary and proper.” While our proposals do not solve every foreseeable problem in a Supremacy Clause immunity case, they do prevent the issues associated with the patchwork approach adopted by Supremacy Clause immunity’s cousin—qualified immunity
The Coddling of the American Worker\u27s Mind: The Anti-Free Speech Nature of Popular Labor Law Reforms
Get PDFAs the nation enters an era in which a new presidential administration will likely push such labor law reforms, it is worth considering whether transparently anti-free speech reform measures make sense for the future of labor policy and law. This Article argues that they do not. Because employee free choice is furthered, not diminished, by hearing both sides of an issue, American workers should have the opportunity to hear and evaluate employer speech in the course of union campaigns. Only then can employees make an informed decision about their workplace future. In the end, freedom of speech furthers employee freedom of choice—the NLRA’s statutory goal in union elections. For these reasons, many labor law reform proposals should be rejected and seen for what they are: an attempt to suppress a particular viewpoint in furtherance of unionization, without regard for employee freedom of choice or a free and fair debate.
This abstract has been taken from the author\u27s introduction
First Amendment Scholar Timothy Zick Dismantles Trump v. CNN Lawsuit
Get PDFFormer President Donald Trump filed a $475 million defamation lawsuit against CNN arguing the network has maligned him with “fake news” for the purposes of damaging his political future heading into 2024.
The complaint filed Oct. 3 stated, “CNN has sought to use its massive influence – purportedly as a ‘trusted’ news source – to defame the Plaintiff in the minds of its viewers and readers for the purpose of defeating him politically, culminating in CNN claiming credit for ‘[getting] Trump out’ in the 2020 presidential election.”
First Amendment Watch asked First Amendment scholar Timothy Zick to annotate the 29-page lawsuit for the legal claims it made and the precedents it cited
Charting a Course to Conserve 30% of Freshwaters by 2030
Get PDFOne of President Biden’s earliest executive orders established an ambitious national goal to conserve at least 30 percent of U.S. lands, waters, and oceans by 2030. The Biden administration is not alone; over 100 countries support this goal as a means of combating climate change and slowing the pace of species extinction, both of which are accelerating at a rate that is unprecedented in history.
Despite its vow to pursue a wide-sweeping, all-of-government approach, Biden’s 30 by 30 initiative overlooks a critical component of the conservation goal—it pays virtually no attention to freshwater. Freshwater ecosystems are among the most endangered in the world due to diminished streamflows, pollution, wetlands destruction, nonnative species’ invasions, and hydrological modifications. Yet in the United States, there are extreme institutional barriers to holistic watershed management. Complexity, controversy, and conflict arise from fragmentation and long-entrenched interests, making reforms especially difficult.
This Article explores federal freshwater conservation law, along with a handful of potential reforms that could advance the 30 by 30 objective without requiring statutory revisions. It covers provisions of existing federal laws that protect the quality, quantity, and integrity of freshwater ecosystems, specifically the Clean Water Act, the Wild & Scenic Rivers Act, federal hydropower, reclamation, and flood control statutes, and the Endangered Species Act. It also identifies ways these laws could be implemented more effectively to conserve 30 percent of the nation’s freshwater resources by 2030, focusing primarily on the agencies’ ability to utilize statutory planning requirements to promote biodiversity and climate resilience
Smith\u27s Last Stand? Free Exercise and Foster Care Exceptionalism
Get PDFPart I first situates Fulton [Fulton v. City of Philadelphia] within two broader contexts—the clash between social equality rights for sexual minorities and religious freedom, and a pattern of eliding children from legal contests over their lives. It then explains why the standard constitutional framing of social equality versus religious freedom contests is improper when the state is acting as guardian and proxy for children or other non-autonomous persons. Part II sets out a proper framework for analyzing these conflicts, elucidating the scope and nature of the state’s parens patriae authority—a lacuna in constitutional jurisprudence. Part III applies that framework to the foster care context, concluding that the correct practical outcome in Philadelphia from a child-welfare perspective is for the City to continue contracting with CSS, as the Supreme Court has effectively ordered, while noting how different circumstances might yield a different outcome in other localities.
This abstract has been adapted from the author\u27s introduction
A World Without Roe: The Constitutional Future of Unwanted Pregnancy
Get PDFWith the demise of Roe v. Wade, the survival of abortion access in America will depend on new legal paths. In the same moment that Dobbs v. Jackson Women’s Health Organization has constrained access to abortion in the United States, other constitutional democracies have moved in the opposite direction, expanding access to safe, legal, and free abortions. They have done so without reasoning from Roe’s vision of the private zone of unwanted pregnancy. The development of abortion law outside the United States provides critical insights that can inform future efforts to vindicate the constitutional rights of women facing unwanted pregnancies. This Article maps out the constitutional paths of reproductive justice in a world without Roe.
Constitutional democracies around the world that have progressed from banning most abortions to legalizing many of them have embraced the public dimensions of childbearing and childrearing. Laws protecting abortion access have recently emerged from strong pro-life constitutional baselines in several jurisdictions, including the notable example of Ireland. Rather than constitutionalizing the individual’s privacy interest in unwanted pregnancy, many constitutional orders recognize the social and public value of reproducing the community, and the disproportionate role played by people who stay pregnant and raise children in the production of these public goods. Banning abortion effectively coerces people to contribute disproportionate sacrifices to the State, without properly valuing these contributions.
This Article shows how this insight from global abortion law norms can be pursued in U.S. constitutional law. The formulation of takings- and Thirteenth Amendment-based challenges to abortion bans would focus on just compensation for the risks, burdens, and sacrifices of compelled motherhood, beyond the enjoining of abortion restrictions. Global experience also points to the importance of incrementally establishing reasonable, expanded definitions of medical necessity exceptions to abortion bans. Such avenues for reestablishing abortion access, as well as public support for pregnancy and parenting, imagine a broader world of reproductive justice than the one defined by Roe