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\u3cem\u3eDobbs\u3c/em\u3e and the New Doctrine of \u3cem\u3eStare Decisis\u3c/em\u3e
No full textAlongside the historic and troubling annulment of the half-century-old Substantive Due Process right to abortion, Dobbs produced another significant outcome. To get its substantive constitutional law result, the Court’s majority also had to reconceive—and significantly weaken—the doctrine of stare decisis. This was necessary because, following Planned Parenthood of Southeastern Pennsylvania v. Casey, the constitutional right to abortion largely depended on respect for precedent as the basis for its survival. To overturn Roe, the Dobbs majority had to blast through the established practice of precedent and articulate a new doctrine of stare decisis. It seems that precedent was meant to be the last (jurisprudential) casualty of America’s long-running abortion war. This Article outlines the new doctrine of stare decisis that emerged from the majority’s tectonic ruling in Dobbs
Race, the Academy, and \u3cem\u3eThe Constitution of the War on Drugs\u3c/em\u3e
No full textThe war on drugs is widely viewed as a policy failure. Despite massive government intrusions on personal liberty, drug addiction, overdoses, and drug-related violence have only increased since the war was declared in 1971. David Pozen’s new book, The Constitution of the War on Drugs, reveals a constitutional failure as well. Pozen chronicles a host of constitutional arguments that American litigants deployed to protect a “right” to use drugs with surprising, if fleeting, success. Pozen asks what might have been, exploring why the courts backtracked and effectively removed the Constitution as a meaningful obstacle to drug prohibitions.
This Review highlights, supplements, and critiques Pozen’s important contribution to our understanding of the war on drugs. We begin with a look in the mirror, acknowledging the legal academy’s own role in enabling the drug war. Next, we introduce alternate explanations for the judicial passivity that Pozen criticizes. Chief among these is race-making: the drug war helped its proponents shape the evolving meaning of race.
We also challenge Pozen’s nuanced explanations for judicial resistance to substantive constitutional challenges. The constitutional terrain where litigants most frequently challenged the drug war was procedural: the Fourth Amendment. And in those battles, the Supreme Court proved to be an eager drug warrior, not an ambivalent conscript. The same pattern repeats itself throughout federal and state courts and across the broader “war on crime.” Our critiques do not take away from Pozen’s contribution—the unearthing of a forgotten history of early battles in the drug war where litigants and judges briefly pushed back on the now widely accepted notion that drug use and possession could be criminalized. But we situate his findings within a broad backdrop of race, crime, and, above all, the judiciary’s eagerness to just say “yes” to the war on drugs
Brigham-Kanner Property Rights Journal, Volume 14
No full textGideon Kanner Remembrance
September 12-13, 2024
Restructuring Property: A Tribute to Lee Fennell
Background Principles, General Law, & Constitutional Property
Roundtable: Unfinished Business & Emerging Issues
Property Rights and Housing In Crisis
Government Trespass: The Fourth Amendment Open Fields Doctrine Turns 100https://scholarship.law.wm.edu/propertyjournal/1014/thumbnail.jp
Easing the Limits of the Statute of Limitations: A Path to a More Equitable IDEA
No full textPart I of this Note discusses the special education framework, outlining the rights and obligations of parents and school systems created by the Individuals with Disabilities in Education Act (IDEA). Part II evaluates the IDEA’s statute of limitations as the gatekeeping instrument of the due process complaint system and discusses the Third Circuit’s reconciliation of the seemingly conflicting statutory provisions of the IDEA in G.L. v. Ligonier Valley School District Authority. Part III situates the implications of the Ligonier decision within the broader special education landscape, discussing other courts’ adoption of or deviations from the Third Circuit’s interpretation, interpretations of the “known or should have known” (KOSHK) standard, and the applicability of the withholding of information exception. Part IV offers solutions for amending the limitations period so that it aligns with the IDEA’s legislative intent while making the burdens and obligations created by the IDEA more equitable between parents and school systems.
This abstract has been taken from the author\u27s introduction
Regulating Deception to Protect Democracy: Global Election Misinformation Regulations Analyzed Under U.S. First Amendment Doctrine
No full textThis Note argues that the marketplace of ideas may not always be a workable theory for the election misinformation that pervades social media platforms. Social media is a unique medium because it does not have the same safeguards as television, radio, and newspapers that are used to filter out false claims and information. Due to the lack of safeguards and the algorithms that promote misinformed posts, social media platforms provide a thriving environment for election misinformation. In addition, the presence of online “echo chambers” and the speed at which misinformation can spread calls for some form of government regulation. In Part I, this Note explores France and Indonesia’s attempts to regulate election misinformation and the success of each program’s efforts toward combating election misinformation. Part II of this Note analyzes how France and Indonesia’s regulations would fare under the United States’ First Amendment doctrine. Part III of this Note offers recommendations for the United States to effectively and constitutionally regulate election misinformation, in part based on the analysis of French and Indonesian misinformation regulations.
This abstract has been taken from the author\u27s introduction
Mired in \u3cem\u3eMeyer\u3c/em\u3e\u27s Mischief A Century After Fabrication of Constitutional Parents\u27 Rights
Full text linkThe seminal Supreme Court decisions Meyer v. Nebraska and Pierce v. Society of Sisters, now commemorated on their centenary anniversary, are odd doctrinal ducks. They are both still routinely cited as the foundation for ascribing to persons on whom the state has conferred legal parent status a right under the Fourteenth Amendment Due Process Clause of the United States Constitution. (According to Westlaw, judicial citation count for Meyer now nears 3000, and secondary-source citations have surpassed 7000.) It is a constitutional right to force states to confer on them greater legal power than the state is otherwise inclined to give them, power to dictate the lives of children they are raising, even against the state’s own efforts to protect and promote what it views as healthy development of children. That sounds like something today’s conservatives should like, and they do. But the way the Court created that right is directly contrary to the view conservatives generally trumpet regarding the proper role of the judiciary. Part I explains this conservative paradox. Part II shows that the analytical framework for parent-state disputes that Meyer introduced is both deeply problematic, conceptually and normatively, and contrary to classic liberal principles. Part III lays out an alternative framework more consistent with those principles.
This abstract has been taken from the author\u27s introduction
This Is an Intervention: The Role of Federal Courts in Suppressing Non-Compete Agreements
Full text linkPart I of this Note will provide background information on noncompete agreements, focusing primarily on those executed in conjunction with employment. Part I will also provide background on the FTC’s rule and the preliminary injunction analysis. Part II will explore how different jurisdictions treat the public interest factor when analyzing whether to enforce a non-compete. Part III will examine how the FTC’s rule has already impacted the public interest analysis in court. Finally, Part IV will address potential challenges to this proposal and argue why federal courts—as opposed to state legislatures, for example—are in the best position to protect workers from the harms of non-competes. This Note ultimately proposes that, when examining the public interest factor in light of the FTC’s rule and shifting state policies, there is hardly a public interest in using an extraordinary remedy like the preliminary injunction to uphold an agreement as restrictive as the noncompete.
This abstract has been taken from the author\u27s introduction
A Human Right to a Sustainable Climate?
Full text linkIs a fundamental right to a sustainable climate progressively being recognized globally? Climate change is triggering parallel progressive developments in the human rights arena at both the domestic and international levels. Firstly, it is fostering an extensive interpretation of first- and second-generation human rights, protecting collective environmental interests rather than individual entitlements. Secondly, climate change has decisively accelerated the evolution of first and second generation human rights into a third generation right to a sustainable environment. Thirdly, emerging evidence discloses the possibility of conceiving a specific human right to a sustainable climate. This Article explores the trajectory of climate rights and the significance of the possibility of recognizing a specific fundamental right to a sustainable climate, particularly in international law. The analysis shows that all human rights provide concurrent protection against climate change. De lege ferenda, recognizing a specific right to a sustainable climate would introduce a flexible approach facilitating climate action in international human rights bodies, particularly based on the erga omnes nature of protection afforded. De lege lata, the right to life—extensively interpreted as a right to live in a sustainable climate—already covers some of the implications of the prospective right to a sustainable climate, but the latter would arguably afford more extensive protection both subjectively and territorially
Lessons Learned from the Mountain Valley Pipeline: Can Nature\u27s Rights or Environmental Justice Be the New MVPs in Pipeline Litigation?
Full text linkThis Note will provide an introduction and proscriptive application of two litigation strategies for future pipeline litigation by using the MVP [Mountain Valley Pipeline] as a case study: (1) environmental justice and (2) nature’s rights. To understand how these strategies differ from the present, Part I will first examine the primary way opponents sought to prevent construction in the case of the MVP: challenging agency findings. Then, Part II will provide context for the two proposed litigation strategies. Finally, Part III will describe possibilities for how these strategies might be employed to prevent the construction of future pipelines.
This Note aims to provide an outline for how opponents of pipeline construction and natural gas infrastructure may proceed in the wake of Congress’s willingness to rubber stamp required licenses. The goal of this Note is to provide alternatives in the face of what seems like a massive blow to activist efforts.
This abstract has been taken from the author\u27s introduction