Constitutional Law

“Revenge Porn” Reform: A View From the Front Lines

Written by: Mary Anne Franks

Abstract The legal and social landscape of “revenge porn” has changed dramatically in the last few years. Before 2013, only three states criminalized the unauthorized disclosure of sexually explicit images of adults and few people had ever heard the term “revenge porn.” As of July 2017, thirty-eight states and Washington, D.C. had criminalized the conduct; […]

Sweet Child O’ Mine: Adult Adoption & Same-Sex Marriage in the Post-Obergefell Era

Written by: Robert Keefe

Abstract Gay and lesbian partners used adult adoption to create family relationships and to ensure inheritance and property rights in the decades before the Supreme Court’s decision in Obergefell v. Hodges legalized same-sex marriage nationwide. Same-sex partners who chose adult adoption as an alternative to marriage before the Obergefell decision must now dissolve the adoption […]

By Any Other Name: Rational Basis Inquiry and the Federal Government’s Fiduciary Duty of Care

Written by: Gary Lawson & Guy I. Seidman

Abstract Under modern law, federal legislation is subject to “rational basis review” under the doctrinal rubric of “substantive due process.” That construction of the Fifth Amendment’s Due Process of Law Clause is notoriously difficult to justify as a matter of original constitutional meaning. Something functionally very similar to substantive due process, however, is easily justifiable […]

The Possibility of Illiberal Constitutionalism?

Written by: Mark Tushnet

Abstract This Essay examines the possibility of an illiberal constitutionalism in which some citizens have “second-class” status – protected against arbitrary government action but with restricted rights. Drawing on scholarship dealing with “dual states” and federalism, the Essay argues that illiberal constitutionalism is possible conceptually but may be quite difficult to sustain over time in […]

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 […]