Category Archives: Constitutional Law

John F. Preis, How the Federal Cause of Action Relates to Rights, Remedies, and Jurisdiction

Time and again, the U.S. Supreme Court has declared that the federal cause of action is “analytically distinct” from rights, remedies, and jurisdiction. Yet, just pages away in the U.S. Reports are other cases in which rights, remedies, and jurisdiction … Continue reading

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Kristen M. Blankley, Impact Preemption: A New Theory of Federal Arbitration Act Preemption

The United States Supreme Court has expanded its arbitration preemption jurisprudence to unprecedented and unexplained bounds, ultimately creating a new type of preemption, herein coined “impact preemption.” As applied by the Court, the scope of impact preemption is broader than … Continue reading

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Alafair S. Burke, Consent Searches and Fourth Amendment Reasonableness

This Article builds on a growing body of scholarship discussing the role of reasonableness in consent-search doctrine. Although the language of “voluntary consent” implies a subjective inquiry into the state of mind of the person granting consent, the U.S. Supreme … Continue reading

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Sean F. Nolon, Bargaining for Development Post-Koontz: How the Supreme Court Invaded Local Government

The U.S. Supreme Court’s decision in Koontz v. St. Johns River Water Management District injected significant confusion into negotiations over land development approvals. The principal source of this confusion is the majority’s unwillingness to clarify when and how a proposed … Continue reading

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Brannon P. Denning, One Toke over the (State) Line: Constitutional Limits on “Pot Tourism” Restrictions

Among the myriad legal issues confronting states—like Colorado—that are experimenting with the legalization of marijuana, is the need to regulate “pot tourism” by visitors from other states where marijuana remains illegal. In Colorado, the final recommendations from the Amendment 64 … Continue reading

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Margaret Tarkington, Lost in the Compromise: Free Speech, Criminal Justice, and Attorney Pretrial Publicity

The right to a jury trial, the presumption of innocence, the social compact between the individual and the State—these are among the weighty interests in our criminal justice system that can be bolstered or undermined through attorney pretrial publicity. The … Continue reading

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