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Examines the role of the courts in requiring the Internal Revenue Service to fulfill its statutory and constitutional obligations to identify racially discriminatory private schools and to revoke their tax exempt status as charitable organizations. Available from Harvard Law Review Association, Gannett House, Cambridge, MA 02138; sc $5.95. (Author)

The constitutionality of a national tuition tax credit plan is examined with specific reference to questions that are raised under the religion clauses of the First Amendment. Recommendations are made for government plans that avoid the church-state conflict and maintain government neutrality. (BH)

The article focuses on Justice Sandra Day O'Connor's lasting impact on constitutional law and the Supreme Court, particularly in light of the evolving ideological landscape of the Court. It discusses her pragmatic and compromising approach to decision-making, highlighting key contributions in areas such as abortion jurisprudence, federalism, and affirmative action.

The article focuses on the Fifth Circuit's rejection of a claim involving the tasing of a disabled student by a school police officer, highlighting the legal complexities surrounding corporal punishment and excessive force in educational settings. It discusses the court's analysis of the incident, which involved a disabled student being repeatedly tased by the officer, and the application of legal standards concerning discrimination, and substantive due process.

A majority of the Justices today are self-described textualists. Yet even as these jurists insist that “the text of the law is the law,” they appeal to “substantive” canons of construction that stretch statutory text in the direction of favored values, from federalism to restraining the administrative state. The conflict between these commitments would seem obvious — and indeed, candid textualists have long acknowledged that there is a “tension” here. But textualist theorists have also advanced several arguments to assuage or finesse that tension, and the sheer availability of those arguments has given the textualist Justices’ resort to these devices a respectability that, we argue here, it does not deserve. With the Justices now openly debating the compatibility of textualism and substantive canons, this Article surveys and critically assesses the assorted efforts to square this particular circle. Those strategies include (1) recharacterizing substantive canons as elements of the “background” against which Congress legislates, (2) linking them to “constitutional values,” and (3) restricting their use to resolving “ambiguities.” Each of those defenses, we argue, either commits textualists to jurisprudential positions they ordinarily denounce or, at best, implies such a narrow scope for substantive canons that nothing resembling their current use would survive. The Article thus concludes that textualists should either abandon their reliance on substantive canons or else concede that their textualism is not what they have often made it out to be. [ABSTRACT FROM AUTHOR]

The article focuses on the decision of the Nevada Supreme Court in the case Mack v. Williams which recognized an implied cause of action for damages under the Nevada state constitution's search and-seizure guarantee. It mentions court's reasoning turned instead on the court's conception of its inherent judicial power to craft remedies necessary to effectuate constitutional rights. It also mentions officers violated her federal and state constitutional due process and search-and-seizure rights.

The article focuses on the Ninth Circuit's ruling in Garnier v. O'Connor-Ratcliff, where it found a First Amendment violation when school district officials blocked parents on social media. Topics include the court's application of the public forum doctrine, the limitations of applying traditional speech disruption concepts to online platforms, and the proposal to analyze disruptions based on the felicity conditions of speech acts in virtual spaces.

The article discusses the constitutionality of scored live-fire requirements for handgun carry licenses, focusing on the City of Boston's licensing regime. Topics include the statutory requirements for carrying handguns in Massachusetts, the recent constitutional framework for Second Amendment cases post-Bruen, and applies this framework to analyze whether the Qualification Test's scored live-fire exercise violates Second Amendment rights.

The article focuses on how delegation debates impacting constitutional authority distribution, with a particular emphasis on nondelegation in private businesses. It reports that, the public delegation theory restricts government authority transfer, while private delegation doctrine restricts government power and violence to private companies. It states that this raises constitutional limitations on the forms of force that the government can use against private parties.

The article discusses the evolution of comparative constitutional law, focusing on comparative constitutionalism. It reports that U.S. Supreme Court Justice Antonin Scalia and Justice Stephen Breyer disagreed on the foreign-law interpretation of the American Constitution. It reports that recent changes and crises in constitutional democracy have sparked interest in comparative literature. It mentions that research examines authoritarian turn in Hungary, India, Poland, Russia, and Venezuela.

The article focuses on the decision of the U.S. Court of Appeals for Eighth Circuit in the case Campbell v. Reisch which held that a state representative did not violate the First Amendment by blocking her constituents on Twitter. It mentions first U.S. Court of Appeals to find no First Amendment violation in such a situation and the first to rest the decision on the state action doctrine. It also mentions government officials to justify censoring opposing views on social media.

The article informs about a Ninth Circuit case, Tekoh v. County of Los Angeles which raised the question of whether a violation of Miranda rights could lead to a claim under 1983. The article discusses the classification of Miranda warnings as either "prophylactic rules" or "constitutional rules," and highlights the dissent's argument that classifying them as prophylactic undermines constitutional remedies.

The article highlights the Japanese Supreme Court's recent decision upholding the constitutionality of laws that require married couples to share a surname,topics include despite opposition and changing social factors. The court's weak judicial review approach raises concerns about the legitimacy of the Japanese Constitution and its limited use of judicial review, which has led to only a few laws being struck down.

The article discusses Texas' antiabortion law (SB 8) and its unique enforcement mechanism allowing private citizens to sue to enforce the law. It examines the challenges of enforcing unconstitutional laws through private attorneys general and proposes using defendant class actions as a viable mechanism to enjoin the enforcement of such laws by private attorneys general. The article delves into the constitutional implications, and addresses potential due process objections to this approach.

The article discusses a case (U.S. v. Perez) where the Second Circuit court ruled on the constitutionality of prohibiting firearms possession by undocumented immigrants. It highlights the complex issues around citizenship, gun rights, and constitutional law. It concluded that even if undocumented immigrants were covered by the Second Amendment, the prohibition on firearms possession was constitutional due to public safety concerns and the difficulty of regulating their behavior.

The article discusses the court case Animal Legal Defense Fund v. Reynolds, which concerns the constitutionality of an Iowa law criminalizing deceptive access to agricultural facilities ("ag-gag" laws). The court ruled that the access provision was valid under the First Amendment, but the employment provision was not. It further analyzed the precedent set by U.S. v. Alvarez and its implications for the constitutionality of "ag-gag" laws.

The article discusses the decision of the U.S. Court of Appeals for the Fourth Circuit in Leaders of a Beautiful Struggle v. Baltimore Police Department. The court held the access of data that in the aggregate allowed police to deduce the identity of an individual from the whole of their movement violated the Fourth Amendment. Topics covered include social justice, warrantless use of data, and how social movements can inform judicial reasoning and stimulate constitutional change.

The First Amendment dominates debate about freedom of speech in the United States. Yet it is not the only legal instrument that protects expressive freedom, the rights of the institutional press, or the democratic values that these rights facilitate. A rich body of local, state, and federal laws also does so, and does so in ways the First Amendment does not. This Article explores the history and present-day operation of this non–First Amendment body of free speech law. Doing so changes our understanding of both the past and the present of the American free speech tradition. It reveals that there was more legal protection for speech in the nineteenth century than scholars have assumed. It also makes evident that the contemporary system of free expression is much more majoritarian, and much more pluralist in its conception of what freedom of speech means and requires, than what we commonly assume. Recognizing as much is important not only as a descriptive matter but also as a doctrinal one. This is because in few other areas of constitutional law does the Supreme Court look more to history to guide its interpretation of the meaning of the right. And yet, the Court’s view of the relevant regulatory history is impoverished. Missing from the Court’s understanding of freedom of speech is almost any recognition of the important nonconstitutional mechanisms that legislators have traditionally used to promote it. The result is a deeply inconsistent body of First Amendment law that relies on a false view of both our regulatory present and our regulatory past — and is therefore able to proclaim a commitment to laissez-faire principles that, in reality, it has never been able to sustain. [ABSTRACT FROM AUTHOR]

The article focuses on guidance from Centers for Disease Control and Prevention (CDC) on handling the COVID-19 pandemic in prisons and jails has influenced constitutional litigation challenging conditions of confinement. It mentions pattern in cases challenging institutional responses to the pandemic under the Eighth and Fourteenth Amendments. It also mentions level of deference contravenes foundational principles in both administrative and constitutional law.

Amidst a raft of major Supreme Court decisions, a relatively quiet concurrence has planted the seeds for what may precipitate a major transformation in American constitutional law. Writing for himself in Box v. Planned Parenthood, Justice Thomas chided the Court for declining to review a decision invalidating an Indiana law that prohibited abortions undertaken “solely because of the child’s race, sex, diagnosis of Down syndrome, disability, or related characteristics.” Arguing that the challenged law was merely Indiana’s modest attempt to prevent “abortion from becoming a tool of modern-day eugenics,” Justice Thomas proceeded to elaborate a misleading history in which he associated abortion with eugenics, racism, and a broader campaign to improve the human race by limiting Black reproduction. While many decried his selective and inaccurate invocation of the history of eugenics, Justice Thomas’s ambitions for the concurrence likely went beyond the historical record. Indeed, in drafting the concurrence, Justice Thomas may have been less concerned with history than with the future — and specifically the future of abortion rights and the jurisprudence of race. As this Article explains, the concurrence’s misleading association of abortion and eugenics may well serve two purposes. First, it justifies trait-selection laws, an increasingly popular type of abortion restriction, on the ground that such measures serve the state’s interest in eliminating various forms of discrimination. But more importantly, and less obviously, by associating abortion with eugenic racism, the concurrence lays a foundation for discrediting — and overruling — Roe v. Wade on the alleged ground that the abortion right is rooted in, and tainted by, an effort to selectively target Black reproduction. Under the principle of stare decisis, a past decision, like Roe v. Wade, cannot be overruled simply because a majority of the current Court disagrees with it. Instead, a “special justification” is required. Justice Thomas’s association of abortion with eugenics constructs the case that racial injustice is the “special justification” that warrants overruling Roe. In this regard, the Box concurrence builds on past decisions, like Brown v. Board of Education, as well as more recent cases, like Ramos v. Louisiana, in which the Court overruled past precedents, in part, to correct racial wrongs. If undertaken, the Box concurrence’s latent strategy will be devastating to abortion rights, but as this Article explains, its deleterious impact goes beyond eviscerating Roe v. Wade. Under the concurrence’s logic, race may serve dual purposes in shaping the Court’s jurisprudence. As an initial matter, race — and the prospect of redressing racial injustice — furnishes the Court with a potent justification for reconsidering settled precedent. But it also provides the Court with an opportunity to articulate new law that affirms and entrenches the Court’s preferred conception of race and racial harm. In this regard, the Box concurrence is not merely an invitation to recast abortion as an issue of racial injustice; it is an invitation to entirely reconceptualize the meaning of race, racial injury, and racism. [ABSTRACT FROM AUTHOR]

The article surveys the U.S. Supreme Court's approach to congressional alternatives. It explains the Court's disparate treatment of congressional alternatives across Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics and Ex parte Young. Topics covered include claims for damages against federal officers, claims for injunctive relief and damages against state actors, and foreclosing injunctive relief under Ex parte Young.

The article focuses on the decision of the U.S. Court of Appeals for the Fifth Circuit in the case In re Abbott in which court upheld GA-09, a Texas executive order that temporarily postponed all nonessential medical procedures, including abortions, in response to the COVID-19 pandemic. It mentions court relied on principles central to common-good constitutionalism, potentially indicating that this judicial philosophy is gaining traction on emergency powers.

The article focuses on Administrative Procedure Act (APA) originalism to inform the proper scope and how a commitment to limiting courts from wading into policy judgment. It mentions Article II conservatives are generally deferential to presidential and executive power in constitutional law; deferential to agencies in administrative law; and take a narrow reading of civil liberties in criminal law, terrorism, and related contexts.

Constitutional law has long assumed that mothers and fathers are fundamentally different. Maternity, that law posits, is certain, obvious, and monolithic — consolidated in an easily identifiable person who is at once a biological, social, and legal parent. Paternity, in contrast, is construed as uncertain, nonobvious, relative, and often unclear. Over time, constitutional law has grown more insistent about the obviousness of motherhood. It also has cemented its idea of maternity into a fundamental principle of sex equality law that applies in settings — like transgender rights — that have nothing to do with certain mothers and uncertain fathers. Constitutional law’s logic of maternal certainty and paternal uncertainty invites criticism for many reasons. It channels the notion that pregnant women are presumptive mothers. It perpetuates questionable stereotypes about mothers and fathers. It determines who can be a parent and how he, she, or they ought to parent. It is in serious tension with constitutional law’s disestablishment idea. For all of these reasons, constitutional maternity warrants reform, and one promising pathway of reform is family law’s less regressive and more multidimensional vision of motherhood. Never as uncomplicated as the Supreme Court has assumed, maternity has become considerably more complex in light of the new forms of kinship enabled by alternative reproduction and its legal accommodation. During the exact time that the Supreme Court has insisted that women and men are inherently different because of maternal certainty and paternal uncertainty, state family law has painted a more complicated picture. Maternity, that picture suggests, often is uncertain and nonobvious. It often is relative. Like paternity, it often is a matter of opinion — judicial opinion. Most remarkably, state family law has shown that maternity is all of these things by relying on the same body of federal constitutional doctrine that insists that mothers and fathers are fundamentally different — and fundamentally different because mothers, unlike fathers, are basic, singular, and monolithic. This Article argues that progressive advances surrounding the new maternity ought to unsettle regressive tendencies surrounding constitutional maternity. These regressive tendencies touch and burden many: from unmarried fathers and transgender individuals to nonbiological and biological mothers. This Article imagines what the new maternity emerging from family law would mean for constitutional law. The idea that the new maternity could unsettle constitutional maternity is not necessarily radical — that project has been unfolding in state courts for years. The consolidation of the new maternity in constitutional law, however, could have meaningful consequences both within and beyond the law of parenthood, destabilizing everything from parentage regimes that rest on the notion of essential biological difference to the argument that transgender discrimination is not illegal because “sex” is not “a stereotype.” [ABSTRACT FROM AUTHOR]

The article argues that cases like "NAACP v. Alabama ex rel. Patterson" upholding broader donor disclosures for nonprofit organizations represent a departure from established First Amendment jurisprudence. Topics discussed include changes in the exacting scrutiny standard required in freedom of association cases outside of the election context; need of courts to employ a proportionality-based approach in case of dark money; and freedom of association under the First Amendment.

The article informs that in case "Sims v. Hyatte," the Seventh Circuit granted habeas relief to an Indiana prisoner, holding that the state court's decision, which found evidence of a key witness's hypnosis to be immaterial, was an unreasonable application of federal law. It discusses how the constitutional privilege of habeas corpus has been a vital instrument for the protection of individual liberty.

The article argues that the sovereign self-preservation doctrine like the environmental law recognizes a judicially enforced right of a sovereign to protect itself from serious and demonstrable harm. Topics discussed include cases that govern domestic intersovereign threats, demonstrating that each of these doctrines is best understood as protecting sovereignty; deficiencies of the current patchwork of doctrines; and the U.S. Supreme Court's decision in the case "Missouri v. Illinois."

The article focuses on decision of the U.S. Supreme Court in the case Virginia House of Delegates v. Bethune-Hill which held Virginia's House of Delegates did not have standing to appeal a decision that its legislative districts were unconstitutional. It mentions separation-of-powers concerns only impact congressional standing then such standing would always be harder to achieve than state legislative standing. It also mentions compliance with section 5 of the Voting Rights Act (VRA).

The article discusses the late Dr. John Jingxiong Wu's work in drafting a new constitution for the Republic of China in the 1930s, and it mentions Wu's career, the history of Republican-era China from 1912 to 1949, and Wu's approach to civil liberties. The reasons why Wu left fundamental rights unprotected from government interference are addressed, along with China's Kuomintang Party. Chinese national security and the nation's legal culture are assessed.

U.S. public law has long taken slavery and Jim Crow segregation as a paradigm case through which to understand our constitutional law: cases adjudicating issues of slavery and segregation form the keystones of our constitutional canon. Reconstruction, or the so-called “Second Founding,” and the Civil Rights Era periodize our constitutional histories. Slavery and Jim Crow segregation supply normative lessons about the strengths and failings of our constitutional framework. This paradigm teaches that if there is too much power in the states and not enough limitation on state power in the form of national power or rights, America might again reenact similar atrocities. Although there is much to learn from the United States’ tragic history with slavery and Jim Crow segregation, resting our public law on this binary paradigm has led to incomplete models and theories. This Nation’s tragic history of colonialism and violent dispossession of Native lands, resources, culture, and even children offers different, yet equally important, lessons about our constitutional framework. In this Article, I argue for a more inclusive paradigm that reaches beyond the black/white binary, and I highlight the centrality of federal Indian law and this Nation’s tragic history with colonialism to public law. Currently, to the extent that federal Indian law is discussed at all within public law, it is generally considered sui generis and consigned to a “tiny backwater.” While I concede that the colonial status of Native peoples and the recognition of inherent tribal sovereignty do render aspects of federal Indian law exceptional, federal Indian law and Native history have much to teach about reimagining the constitutional history of the United States. Interactions between the national government and Native Nations have shaped the warp and woof of our constitutional law from the Founding across a range of substantive areas, including vertical and horizontal separation of powers, the Treaty Clause, war powers, executive powers in times of exigency, and many others. I aim to open a conversation as to whether these doctrines ought to take their rightful place in the canon or, perhaps, the anticanon. Beyond simple canonization, federal Indian law offers paradigmatic lessons about the strengths and failings of our constitutional framework. Broadening the binary paradigm to include federal Indian law could allow interventions into a range of general principles of public law. It has often been said that federal Indian law is “incoherent” and in need of reform, because the doctrine does not comport with general public law principles. But perhaps it is the general principles of public law, and the incomplete paradigm of slavery and Jim Crow segregation on which those principles rest, that are in need of reform. More than simple canonization, the inclusion of federal Indian law as an additional paradigm case could lead to fundamental reformulation. A full catalogue is beyond the scope of this Article, but I offer an example here in the hope that it will invite more. As I’ll show, federal Indian law leads public law to a very different set of principles in the context of minority protection, unsettling reigning theories of how best to distribute and limit power in order to prevent government abuse of minorities. Unlike slavery and Jim Crow segregation, federal Indian law teaches that nationalism is no panacea for majority tyranny, and that rights can wound as well as shield minorities. [ABSTRACT FROM AUTHOR]

The article discusses the history of prison strikes in America in relation to the legal rights of prisoners under the U.S. Constitution's First Amendment and a lack of adequate constitutional protections for strikes. According to the article, thousands of prisoners in various states across America carried out strikes in August and September 2018 to protest poor living conditions, understaffing, and inhumane treatment in U.S. prison facilities.

The article discusses the Commonwealth v. Knox constitutional law case in which the Pennsylvania Supreme Court upheld defendant Jamal Knox's conviction for terroristic threats and witness intimidation and determined that Knox possessed specific intent to threaten two police officers with his rap music lyrics. A heightened mens rea (criminal intent) requirement is addressed, along with a true threat doctrine and legal protections under the U.S. Constitution's First Amendment.

The Constitution identifies three forms of supreme law - the Constitution, laws, and treaties - and specifies procedures for their adoption. Yet it says little about timing. It does not seem to address whether the chambers of Congress must act on bills in close proximity to each other, whether amendments may be proposed across eras or ratified across centuries, or whether a President may make a treaty decades after the Senate consents to its ratification. This Article is the first to offer a comprehensive account of existing federal lawmaking practices as they relate to time. It also considers how those timing practices have evolved over our nation's history. The Article argues that the Constitution requires some measure of synchronicity within each form of lawmaking. For statutes, all the steps requisite for a bill to become law must occur within a single congressional session, a rule immanent in the Constitution's concept of a "session." If all steps do not occur within one session, the slate is wiped clean. For constitutional amendments, the constraints are more complicated and less definite. Both chambers of Congress must pass a proposed amendment within one session. Moreover, once Congress sends an amendment to the states, it lapses if the requisite number of states does not ratify it within a reasonable period. If the proposal is to become an amendment, it must go back to square one and recommence its journey. Treaties are similarly constrained by a synchronicity requirement. In particular, Presidents must make treaties within a reasonable time after the Senate consents to their ratification. If widely accepted, these assertions would have far-reaching implications for how institutions currently make supreme law. The Article further contends that while the Constitution itself adopts a synchronicity constraint on the three forms of supreme law, the participants in each process also can impose their own more stringent limits on each. Finally, the Article uses this framework to comment on the Equal Rights Amendment and the vexing issues posed by attempts to revive that proposal. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Court of Appeals for the Eleventh Circuit's ruling in the 2018 case United States v. Touset which deals with American criminal procedure and the constitutionality of forensic searches of electronic devices at U.S. borders, and it mentions how the court determined that such searches of digital devices are legal in the absence of a warrant, probable cause, or individualized suspicion. The Fourth Amendment to the U.S. Constitution is assessed.

This Article considers whether government agents can conduct searches or seizures to enforce a different government's law. For example, can federal officers make stops based on state traffic violations? Can state police search for evidence of federal immigration crimes? Lower courts are deeply divided on the answers. The Supreme Court's decisions offer little useful guidance because they rest on doctrinal assumptions that the Court has since squarely rejected. The answer to a fundamental question of Fourth Amendment law -- who can enforce what law -- is remarkably unclear. After surveying current law and constitutional history, the Article offers a normative proposal to answer this question. Each government should have the power to control who can enforce its criminal laws. Only searches and seizures by those authorized to act as agents of a sovereign trigger the government interests that justify reasonableness balancing based on those interests. The difficult question is identifying authorization: questions of constitutional structure suggest different defaults for enforcement of federal and state law. Outside the Fourth Amendment, governments can enact statutes that limit how their own officers enforce other laws. The scope of federal power to limit federal enforcement of state law by statute should be broader, however, than the scope of state power to limit state enforcement of federal law. [ABSTRACT FROM AUTHOR]

The article discusses several U.S. Supreme Court cases, including "South Dakota v. Wayfair, Inc.," "Patchak v. Zinke" and "Sessions v. Dimaya." Topics, including constitutional law, stare decisis, judicial power in relationship with legislative power, dissenting opinions and the First Amendment's Establishment Clause, are discussed.

The article discusses the issue of rights in U.S. Supreme Court cases during its 2017 term, including in the U.S. Supreme Court case "Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission." The impact that constitutional law has on the Supreme Court's framework in determining case judgments is discussed.

The article discusses the potential unconstitutionality of America's civil asset forfeiture practice as of 2018, and it mentions the use of civil asset forfeiture during criminal law enforcement actions. U.S. President Donald Trump's expansion of an equitable sharing program, which provides financial incentives to law enforcement to forfeit property in connection with U.S. federal procedures, is examined. American state and federal laws are assessed.

Of the roughly 450,000 Americans who are in local jails awaiting trial, many are there because they are poor. When people with economic resources are arrested, they can sometimes pay bail or fines and go on with their lives. Those who cannot afford to pay meet a different fate. Some remain in jail for days or weeks while waiting to see a judge. Some remain there for months because courts did not take their indigence into account when setting or reviewing bail. If they plead guilty in order to leave jail, this often triggers a new set of fines and fees that they cannot afford to pay. Failure to pay results in a new arrest. The cycle starts anew. This Article is about federal lawsuits challenging various state and local regimes that criminalize poverty and a threshold barrier that has blocked some such federal suits. Under Younger v. Harris -- and the doctrine of Younger abstention -- federal courts may not disrupt a state criminal proceeding by means of an injunction or declaratory judgment. Federal courts' reluctance to resolve such cases is predicated on federalism interests. Traditionally, however, federal courts have nonetheless entertained suits to stop or prevent irreparable harm, especially where an underlying state process provides an inadequate means to raise federal constitutional claims. When a state is engaging in a structural or systemic constitutional violation, federalism interests diminish and the risk of irreparable harm is grave. This Article argues for an exception to Younger abstention when litigants challenge structural or systemic constitutional violations. "Structural" means a flaw that infects a judicial process's basic framework in incalculable ways, such as denial of counsel at a critical stage or a judge's financial interest in the outcome. "Systemic" means a flaw that routinely impacts litigants by way of a policy, pattern or practice, or other class-wide common set of violations. Because the United States Supreme Court has already made clear that "inadequate" state proceedings should not stand in the way of federal intervention, this exception can be adopted and implemented without major changes to existing Supreme Court precedent. No one should be in jail or punished because she is poor. Federal courts should ensure that this substantive right has practical effect. [ABSTRACT FROM AUTHOR]

The harmless constitutional error doctrine is as baffling as it is ubiquitous. Although appellate courts rely on it to deny relief for claimed constitutional violations every day, virtually every aspect of the doctrine is subject to fundamental disagreement and confusion. Judges and commentators sharply disagree about which (and even whether) constitutional errors can be harmless, how to conduct harmless error analysis when it applies, and, most fundamentally, what harmless constitutional error even is -- what source of law generates it and enables the Supreme Court to require its use by state courts. This Article offers a new theory of harmless constitutional error, one that promises to solve many of the doctrine's longstanding mysteries. There is widespread consensus that harmless constitutional error is a remedial doctrine, in which the relevant question is the appropriate remedy for an acknowledged violation of rights. But harmless error is in fact better understood as an inquiry into the substance of constitutional rights: a purported error can be harmless only if the defendant's conviction was not actually obtained in violation of the defendant's rights. That approach can help solve the doctrine's longstanding riddles. It explains why harmless error is binding on state courts; it clears up confusion about the relationship between the doctrine and statutory harmless error requirements; it shows which errors can never be treated as harmless without effectively being eliminated; and it provides useful guidance for how courts should conduct harmless error analysis where it applies. Most importantly, it reflects a more realistic understanding of the right-remedy relationship that makes it harder for courts to surreptitiously undermine constitutional values. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Court of Appeals for the Third Circuit's ruling in the 2017 case Fields v. City of Philadelphia which deals with plaintiff Richard Fields and a bystander's legal right to make video and audio recordings of police officers under the First Amendment to the U.S. Constitution. Qualified immunity legal protection for the police is examined, along with American constitutional law, unreasonable searches and seizures, and the Fourth Amendment to America's Constitution.

As it has been developed over a period of many decades, administrative law has acquired its own morality. An understanding of the morality of administrative law puts contemporary criticisms of the administrative state in their most plausible light. Reflected in a wide array of seemingly disparate doctrines, but not yet recognized as such, the morality of administrative law includes a set of identifiable principles, often said to reflect the central ingredients of the rule of law. Closely related to what Professor Lon Fuller described as the internal morality of law, the resulting doctrines do not deserve an unambiguous celebration, because many of them have an ambiguous legal source; because from the welfarist point of view, it is not clear if they are always good ideas; and because it is not clear that judges should enforce them. [ABSTRACT FROM AUTHOR]

Federal substantive criminal law and constitutional remedies might seem to be distinct bodies of law. But since the closing decades of the twentieth century, the Supreme Court has demonstrated an increasing unwillingness in both areas to impose either direct or indirect sanctions on persons who violate the law but whose conduct is not necessarily indicative of an unlawful or antisocial intent. Instead, the Court has tended to narrow liability or remedy to instances in which there is evidence that the regulated actor contravened not just the law on the books but also a social understanding of legality. We call this supervening criterion for individual criminal or civil liability an apparent fault requirement. This Article documents the contemporaneous rise of an apparent fault requirement across two domains of Supreme Court jurisprudence and explores its causes as well as its effects. We argue that the demand for apparent fault is likely to make some kinds of coercive regulation less costly even as it imposes an inhibiting tax on other species of state intervention. Rather than diagnosing apparent fault's rise as an endogenous product of legal reasoning, we situate it within a broader historical and intellectual context as a way of showing the value of understanding doctrine in the context of its sociocultural moment. [ABSTRACT FROM AUTHOR]

The article discusses the challenges to democratic integrity arising from U.S. Supreme Court judgments on voting rights and campaign financing. It mentions government actions to interfere in these actions, the lack of protection of political participation in constitutional law, and suggests possible approaches for achieving more consistent decisions.

The article discusses the U.S. Court of Appeals for the Ninth Circuit's ruling in the 2017 case United States v. Sanchez-Gomez which deals with American constitutional law, substantive due process, and the determination that a policy requiring pretrial detainees to wear shackles in trial courts is unconstitutional. The U.S. criminal justice system and an innocent until proven guilty legal principle are examined, along with litigant Rene Sanchez-Gomez, dignity, and criminal justice reform.

Agency fees are mandatory payments that certain employees are required to make to labor unions. In recent years, the Supreme Court has moved closer to declaring these fees an unconstitutional form of compelled speech and association and may soon invalidate them entirely. The Court -- and the scholarship on agency fees -- proceeds from the assumption that such fees are employees' money that employees pay to a union. This Article argues, however, that this is the wrong way to understand agency fees for two sets of reasons. One, the Court treats agency fees as employees' money because fees pass through employee paychecks on the way from employers to unions. But this is simply an accounting formalism required by labor law. Because employees have no choice but to pay the fees, the fact that the fees pass through paychecks is irrelevant for purposes of First Amendment analysis. Instead, under the First Amendment, agency fees are -- and must be treated as -- payments made directly by employers to unions. And payments made by employers to unions raise no compelled speech or association problems for employees. Two, irrespective of the accounting regime, the Article shows why agency fees ought to be treated as union property rather than as the property of individual employees. Unionization, by allowing employees to negotiate collectively, produces a premium for employees covered by union contracts. Agency fees are a small fraction of this union premium. Because it is the union that produces the premium out of which agency fees are paid, and because individual employees would never earn the premium as individuals, the premium and the fees that come out of it should be treated -- under the Court's own cases -- as the property of the union that secured them. The Article thus provides two sets of arguments with the same fundamental implication: agency fees are not properly understood as payments made by employees to unions, and there is accordingly no compelled speech or association problem with agency fees. [ABSTRACT FROM AUTHOR]

The article discusses the U.S. Court of Appeals for the Ninth Circuit's determination in the 2017 case Robins v. Spokeo Inc. that a plaintiff who claims to have been harmed by the defendant's violation of America's Fair Credit Reporting Act (FCRA) suffered an injury that is sufficient to confer legal standing to file a lawsuit. The U.S. constitutional law-related separation of power doctrine is examined, along with class action cases and Article III of the nation's Constitution.

In several recent high-profile cases, federal district judges have issued injunctions that apply across the nation, controlling the defendants' behavior with respect to nonparties. This Article analyzes the scope of injunctions to restrain the enforcement of a federal statute, regulation, or order. This analysis shows the consequences of the national injunction: more forum shopping, worse judicial decisionmaking, a risk of conflicting injunctions, and tension with other doctrines and practices of the federal courts. This Article shows that the national injunction is a recent development in the history of equity. There was a structural shift at the Founding from a single-chancellor model to a multiple-chancellor model, but the vulnerabilities in the latter did not become visible until the mid- to late twentieth century, when there were changes in how judges thought about legal challenges and invalid laws. Only with those changes -- only in the second half of the twentieth century -- did the national injunction emerge. This Article proposes a single clear rule for the scope of injunctions against federal defendants. A federal court should give what might be called a "plaintiff-protective injunction," enjoining the defendant's conduct only with respect to the plaintiff. No matter how important the question and no matter how important the value of uniformity, a federal court should not award a national injunction. This rule is based on equitable principles and on the scope of the "judicial Power" granted by the Constitution of the United States. [ABSTRACT FROM AUTHOR]