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Session Summary: New and Established Voices in Constitutional Law

Submitted by Louis Virelli

A discussion group titled “New and Established Voices in Constitutional Law” met at the SEALS annual meeting on Monday, July 29th. The discussion was moderated by Professor Akram Faizer (Lincoln Memorial University Duncan School of Law). It featured the work of nine discussants and was attended by several other conference attendees.

The session focused on several of the discussants’ ongoing scholarly projects. Professor Eric Segall (Georgia State University College of Law) began by summarizing two of his ongoing projects, one challenging the role of personal injury in the courts’ standing, ripeness, and mootness doctrines, and another focused on showing that constitutional meaning cannot be, as some originalists and others suggest, fixed.

Professor Segall was followed by Professor Jennifer Kinsley (Northern Kentucky University Salmon P. Chase College of Law), who presented her recent work on the role of psychology in free speech law. She argued that our constitutional understanding of free expression should consider not only the effect of speech on the listener, but also the therapeutic value—and corresponding social benefits—of protecting free expression for the speaker.

Professor Lori Ringhand (University of Georgia School of Law) next introduced her recent project comparing the role of free speech in American and UK election law. More specifically, Professor Ringhand offered a comparative analysis of the regulatory regimes governing online campaign spending and foreign sources of campaign donations, and of the recent reform proposals in the US and UK in those areas since the 2016 elections.

The group then discussed two recent projects from Professor Jon Michaels (UCLA School of Law). The first addressed the phenomenon of government seeking to “achieve its aims through commercial rather than (just) democratic interventions,” and of the private sector exercising “sovereign regulatory muscle in furtherance of public aims at times orthogonal to profits.” The second uses case studies involving the regulatory bureaucracy, the military, the foreign service, and public education to demonstrate how these important public institutions have been in decline and to detail a plan to reinvigorate them.

Professor William Araiza (Brooklyn Law School) presented his recent scholarship on the potential demise of the non-delegation doctrine as forecast by the Supreme Court’s recent decision in United States v. Gundy. He contends that progressives can use the Court’s decision to advocate for a new approach to non-delegation that will satisfy their preferences for an active and robust administrative state while remaining palatable to the current Court.

Professor Louis Virelli (Stetson University College of Law) presented his working thesis that Congress’s decision to categorize a special prosecutor as an inferior officer subject to appointment by someone other than the president should be nonjusticiable, and that recent judicial opinions involving the Mueller investigation have unwisely adopted rationales that threaten to render the special counsel position at best ineffective and at worst irrelevant.

The final project raised for discussion came from Professor Michael Morley (Florida State University College of Law). Professor Morley argued that, despite Chief Justice Roberts’ suggestion in Rucho v. Common Cause, political gerrymandering cannot be challenged on state constitutional grounds because the U.S. Constitution’s Elections Clause, which requires that federal congressional elections “shall be prescribed in each State by the Legislature thereof,” precludes state courts from interfering with state legislative judgments regarding federal elections.

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