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Articles 61 - 90 of 422
Full-Text Articles in Entire DC Network
The Natural Born Citizen Clause As Originally Understood, Mary Brigid Mcmanamon
The Natural Born Citizen Clause As Originally Understood, Mary Brigid Mcmanamon
Mary Brigid McManamon
Article II of the Constitution requires that the President be a “natural born Citizen.” The phrase is derived from English common law, and the Supreme Court requires examination of that law to ascertain the phrase’s definition. This piece presents the pertinent English sources, combined with statements by early American jurists. Based on a reading of these materials, the article concludes that, in the eyes of the Framers, a presidential candidate must be born within the United States. The article is important because there has been a candidate that “pushed the envelope” on this question in many elections over the last …
Let Us Now Praise Corporate Persons, Kent Greenfield
Let Us Now Praise Corporate Persons, Kent Greenfield
Kent Greenfield
Also appeared as "If Corporations are People They Should Act Like It," on TheAtlantic.com, January 30, 2015.
The Potential Meanings Of A Constitutional Public Trust, John Dernbach
The Potential Meanings Of A Constitutional Public Trust, John Dernbach
John C. Dernbach
No abstract provided.
The Perilous Psychology Of Public Defending, Scott Howe
The Perilous Psychology Of Public Defending, Scott Howe
Scott W. Howe
This article examining the ethical challenges confronting most public defender attorneys is framed as a fictional talk presented by P.D. Atty, a former public defender attorney, at a small conference of new public defender attorneys. The presentation asserts that public defenders typically face psychological obstacles to providing zealous advocacy for all of their clients and that an essential aspect of the remedy starts with recognition of these psychological barriers. The author contends that these challenges relate to a typically unacknowledged aversion to representing certain kinds of criminal defendants. Contrary to common supposition, the strongest aversion is not to representation of …
And The Wall Comes Tumbling Down: How The Supreme Court Is Striking The Wrong Balance Between Majority And Minority Rights In Church And State Cases, Alan Garfield
Alan E Garfield
Robinson Township: A Model For Environmental Constitutionalism, Erin Daly, James May
Robinson Township: A Model For Environmental Constitutionalism, Erin Daly, James May
Erin Daly
In Robinson Township v. Commonwealth of Pennsylvania, a plurality of the court held that a controversial law encouraging fracking (“Act 13”) violates the state’s constitutional Environmental Rights Amendment, the provisions of which the court held are “on par” with political rights. The decision highlights the challenges of engaging constitutional environmental provisions but demonstrates that, with sufficient creativity and commitment, meeting these challenges lies well within the bounds of judicial capability and authority. Because courts around the world are increasingly being asked to engage in environmental constitutionalism, and Robinson Township's thorough examination of the issues is instructive, not only for cases …
The Pressure Is On—Criminal Defense Counsel Strategies After Padilla V. Kentucky, Bill Hing
The Pressure Is On—Criminal Defense Counsel Strategies After Padilla V. Kentucky, Bill Hing
Bill Ong Hing
The Supreme Court’s message to criminal defense attorneys in Padilla v. Kentucky was clear: when there is a risk of deportation, defense counsel has a constitutional duty to inform an immigrant defendant of the potential for deportation or adverse immigration consequences prior to pleading guilty. In my view, this constitutional duty places tremendous pressure on defense counsel to do more than advise, because once advised, the client very naturally may want to know what options are available other than going to trial. Rather than simply focusing on how to minimize the time of incarceration for the client under a particular …
The Implications Of Incorporating The Eighth Amendment Prohibition On Excessive Bail, Scott Howe
The Implications Of Incorporating The Eighth Amendment Prohibition On Excessive Bail, Scott Howe
Scott W. Howe
In its opinion in McDonald v. City of Chicago, 130 S.Ct. 3020 (2010), concerning the incorporation of the Second Amendment, the Supreme Court included a footnote that listed the Eighth Amendment prohibition on excessive bail as one of the incorporated Bill of Rights protections. Oddly, the Court had never incorporated the bail clause or even explained what protections it conferred. While strange, these circumstances provide a rare opportunity to reason backward from incorporation to the meaning of the incorporated provision. And by pursuing those backward implications, the paper offers novel arguments about the proper understanding of the bail clause.
I …
A Legislative History Of Article I, Section 27 Of The Constitution Of The Commonwealth Of Pennsylvania, John Dernbach, Edmund Sonnenberg
A Legislative History Of Article I, Section 27 Of The Constitution Of The Commonwealth Of Pennsylvania, John Dernbach, Edmund Sonnenberg
John C. Dernbach
No abstract provided.
Wartime Quartering With And Without Legislative Authorization, William Gill
Wartime Quartering With And Without Legislative Authorization, William Gill
William Gill
Ncaa Athletes, Unpaid Interns And The S-Word: Exploring The Rhetorical Impact Of The Language Of Slavery, Maria Ontiveros
Ncaa Athletes, Unpaid Interns And The S-Word: Exploring The Rhetorical Impact Of The Language Of Slavery, Maria Ontiveros
Maria L. Ontiveros
Constitutional Environmental Rights, Erin Daly, James R. May
Constitutional Environmental Rights, Erin Daly, James R. May
Erin Daly
Deselecting Biased Juries, Scott W. Howe
Deselecting Biased Juries, Scott W. Howe
Scott W. Howe
Critics of peremptory-challenge systems commonly contend that they inevitably inflict “inequality harm” on many excused persons and should be abolished. Ironically, the Supreme Court fueled this argument with its decision in Batson v. Kentucky by raising and endorsing the inequality claim sua sponte and then purporting to solve it with an approach that preserved peremptories. This Article shows, however, that the central problem is something other than inequality harm to excused persons. The central problem is the harm to disadvantaged litigants when their opponents use peremptories to secure a one-sided jury. This problem can arise often—whenever a venire is slanted …
Religious Institutionalism, Implied Consent And The Value Of Voluntarism, Michael A. Helfand
Religious Institutionalism, Implied Consent And The Value Of Voluntarism, Michael A. Helfand
Michael A Helfand
Increasingly, clashes between the demands of law and aspirations of religion center on the legal status and treatment of religious institutions. Much of the rising tensions revolving around religious institutions—exemplified by recent Supreme Court decisions such as Hosanna-Tabor v. EEOC and Burwell v. Hobby Lobby—stem from conflicts between the religious objectives of those institutions and their impact on third parties who do not necessarily share those same objectives. This Article aims to provide a framework for analyzing the claims of religious institutions by grounding those claims in the principle of voluntarism. On such an account, religious institutions deserve protection because …
The Challenge Of Co-Religionist Commerce, Michael A. Helfand, Barak D. Richman
The Challenge Of Co-Religionist Commerce, Michael A. Helfand, Barak D. Richman
Michael A Helfand
This Article addresses the rise of “co-religionist commerce” in the United States—that is, the explosion of commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives. To remain viable, co-religionist commerce requires all the legal support necessary to sustain all other commercial relationships. Contracts must be enforced, parties must be protected against torts, and disputes must be reliably adjudicated.
Under current constitutional doctrine, co-religionist commercial agreements must be translated into secular terminology if there are to be judicially enforced. However, religious goods and services often cannot be accurately translated without religious terms …
Unwell: Indiana V. Edwards And The Plight Of Mentally Ill Pro Se Defendants, John Blume, Morgan Clark
Unwell: Indiana V. Edwards And The Plight Of Mentally Ill Pro Se Defendants, John Blume, Morgan Clark
John H. Blume
Is It Admissible?: Tips For Criminal Defense Attorneys On Assessing The Admissibility Of A Criminal Defendant's Statements, Part One, John Blume, Emily Paavola
Is It Admissible?: Tips For Criminal Defense Attorneys On Assessing The Admissibility Of A Criminal Defendant's Statements, Part One, John Blume, Emily Paavola
John H. Blume
This article addresses the Fifth Amendment issues to be considered when analyzing the admissibility of a criminal defendant's out-of-court statements.
Fcc V. Fox Television Moot Court, Robert Barnes, Joan Biskupic, John Blume, Erwin Chemerinsky, Thomas Goldstein, Linda Greenhouse, John Mcginnis, David Savage, Paul Smith, William Van Alstyne, Timothy Zick
Fcc V. Fox Television Moot Court, Robert Barnes, Joan Biskupic, John Blume, Erwin Chemerinsky, Thomas Goldstein, Linda Greenhouse, John Mcginnis, David Savage, Paul Smith, William Van Alstyne, Timothy Zick
John H. Blume
The Bill of Rights Institute and William and Mary Law School hosted a moot court on the FCC v. Fox Television indecency case. The case rests on the FCC’s ban against the use of curse words in television broadcasts Erwin Chermerinsky and Thomas Goldstein argued the case before Joan Biskupic, Robert Barnes, John Blume, Linda Greenhouse, John McGinnis, David Savage, Paul Smith, William Van Alstyne, and Timothy Zick. After the oral argument the judgment was shown. Then the panelists responded to questions from members of the audience. This program contains language some may find offensive.
Property As A Fundamental Constitutional Right? The German Example, Gregory Alexander
Property As A Fundamental Constitutional Right? The German Example, Gregory Alexander
Gregory S Alexander
No abstract provided.
Ten Years Of Takings, Gregory Alexander
Ten Years Of Takings, Gregory Alexander
Gregory S Alexander
No area of property law has been more controversial in the past decade than takings. No aspect of constitutional law more sharply poses the dilemma about the legitimate powers of the regulatory state than the just compensation question. No question concerning constitutional property is more intractable than what sorts of government regulatory actions constitute uncompensated "takings" of private property. Limitations of space, not to mention my own ambivalence about many of the issues, prevent me from developing a complete normative theory of the proper scope of the Takings Clause. My aim here is vastly more modest: to outline the basic …
Rethinking Proportionality Under The Cruel And Unusual Punishments Clause, John Stinneford
Rethinking Proportionality Under The Cruel And Unusual Punishments Clause, John Stinneford
John F. Stinneford
Although a century has passed since the Supreme Court started reviewing criminal punishments for excessiveness under the Cruel and Unusual Punishments Clause, this area of doctrine remains highly problematic. The Court has never answered the claim that proportionality review is illegitimate in light of the Eighth Amendment’s original meaning. The Court has also adopted an ever-shifting definition of excessiveness, making the very concept of proportionality incoherent. Finally, the Court’s method of measuring proportionality is unreliable and self contradictory. As a result, a controlling plurality of the Court has insisted that proportionality review be limited to a narrow class of cases. …
Immigration Surveillance, Anil Kalhan
Immigration Surveillance, Anil Kalhan
Anil Kalhan
In recent years, immigration enforcement levels have soared, yielding a widely noted increase in the number of noncitizens removed from the United States. Less visible, however, has been an attendant sea change in the underlying nature of immigration governance itself, hastened by new surveillance and dataveillance technologies. Like many other areas of contemporary governance, immigration control has rapidly become an information-centered and technology-driven enterprise. At virtually every stage of the process of migrating or traveling to, from, and within the United States, both noncitizens and U.S. citizens are now subject to collection and analysis of extensive quantities of personal information …
Ten Good Practices In Environmental Constitutionalism: Structure, Text And Justiciability, James May, Erin Daly
Ten Good Practices In Environmental Constitutionalism: Structure, Text And Justiciability, James May, Erin Daly
Erin Daly
Environmental constitutionalism is a relatively recent phenomenon at the confluence of constitutional law, international law, human rights, and environmental law. It embodies the recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts worldwide. This White Paper posits ten “good practices” – those attributes that make effective outcomes more likely, but not assured – in environmental constitutionalism for advancing positive environmental outcomes considering energy, and governance and sustainability. Good practices in environmental constitutionalism can serve as a useful construct for considering the relationship between sustainability, energy and governance. Accordingly, Section A …
Beard And Uber-Beard, Mark Graber
El Futuro Del Tribunal De Aforados, Javier Revelo-Rebolledo
El Futuro Del Tribunal De Aforados, Javier Revelo-Rebolledo
Javier E Revelo-Rebolledo
No abstract provided.
A Toolkit For The Citizen Journalist, Chiehwen Ed Hsu
A Toolkit For The Citizen Journalist, Chiehwen Ed Hsu
Chiehwen Ed Hsu
No abstract provided.
Juvenile Offenders: Life Without Parole (Lwop), Term Of Years And A Reasonable Opportunity For Release, Robert Sanger
Juvenile Offenders: Life Without Parole (Lwop), Term Of Years And A Reasonable Opportunity For Release, Robert Sanger
Robert M. Sanger
A juvenile offender (a person who committed an offense before the age of 18 years) can be tried as an adult and will be subject to adult punishments, with some restrictions. Juveniles cannot be executed and they cannot be mandatorily confined to life imprisonment without the possibility of parole. Justice Kagen of the United States Supreme Court stated for a majority of the Court in Miller v. Alabama, that a mandatory life sentence for a juvenile violates the 8th and 14th Amendments to the United States Constitution. In other words, life without hope should be unconstitutional for juveniles.
Prosecutors have …
La Reforma Político-Judicial De Santos, Javier Revelo-Rebolledo
La Reforma Político-Judicial De Santos, Javier Revelo-Rebolledo
Javier E Revelo-Rebolledo
No abstract provided.
Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark Graber
Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark Graber
Mark Graber
This paper sharpens debates over whether the Constitution of the United States and the American constitutional order are presently dysfunctional, the nature of any dysfunctions, and how underlying regime flaws are likely to be corrected. Rather than focusing primarily on constitutional text, this Article explores the dynamic ways in which constitutional processes have influenced and been influenced by the structure of constitutional politics. Constitutional dysfunction is best conceptualized as the failure of a constitutional order rather than as a consequence of a flawed constitutional text, and dysfunction typically occurs when a regime is unable to transition from a dysfunctional constitutional …
Hobby Lobby's Challenge To Officialdom's 'Compelling Interest', Michael Helfand
Hobby Lobby's Challenge To Officialdom's 'Compelling Interest', Michael Helfand
Michael A Helfand
No abstract provided.