Constitutional Law

Rational Basis Is The Only Rational Solution: Resolving Foreign Commerce Clause Confusion

Written By: Justin Senior

Abstract Congress enacted the PROTECT Act in 2003 to curtail the sexual abuse of children by U.S. citizens abroad. While the Act has not received much attention from scholars or courts, defendants in court consistently challenge its constitutionality. Congress maintains that it has the Foreign Commerce Clause power to prohibit the illicit sex activity in […]

Judging Implicit Bias: A National Empirical Study of Judicial Stereotypes

Written by: Justin D. Levinson, Mark W. Bennett, & Koichi Hioki

Abstract American judges, and especially lifetime-appointed federal judges, are often revered as the pinnacle of objectivity, possessing a deep commitment to fairness, and driven to seek justice as they interpret federal laws and the U.S. Constitution. As these judges struggle with some of the great challenges of the modern legal world, empirical scholars must seek […]

Undignified: The Supreme Court, Racial Justice, and Dignity Claims

Written by: Darren Lenard Hutchinson

Abstract The Supreme Court has interpreted the Equal Protection Clause as a formal equality mandate. In response, legal scholars have advocated alternative conceptions of equality, such as antisubordination theory, that interpret equal protection in more substantive terms. Antisubordination theory would consider the social context in which race-based policies emerge and recognize material distinctions between policies […]

Takings and Extortion

Written by: Daniel P. Selmi

Abstract The Supreme Court has repeatedly employed an extortion narrative in deciding when governmental actions imposing exactions on development projects constitute takings under the Fifth Amendment. In that narrative, local officials act in ever-present bad faith by misusing their regulatory powers to coerce concessions by developers seeking land use approvals. While the extortion narrative has […]

Andrew Jay McClurg, The Second Amendment Right To Be Negligent

68 Fla. L. Rev. 1 Abstract Only two constitutional rights—the First and Second Amendments—have a realistic capacity, through judicial interpretation or legislative action or inaction, to confer a “right to be negligent” on private citizens; that is, a right to engage in objectively unreasonable risk-creating conduct without legal consequences. In the First Amendment context, for […]

R. George Wright, Content-Neutral and Content-Based Regulations of Speech: A Distinction That Is No Longer Worth the Fuss

Introduction The binary distinction between content-neutral and content-based speech regulations is of central importance in First Amendment doctrine. This distinction has been the subject of U.S. Supreme Court attention on several occasions.  As the case law has evolved, however, this apparently crucial distinction has become less clear, coherent, and practical, such that further attempts to […]