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Articles 1 - 12 of 12
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State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller
State Domas, Neutral Principles, And The Möbius Of State Action, Darrell A. H. Miller
Faculty Scholarship
This essay uses the Mobius strip as a mathematical metaphor for how state "defense of marriage amendments" (DOMAs) can twist the Shelley v. Kraemer contribution to state action doctrine. It argues that Shelley's core insight -- that judicial enforcement of private agreements can constitute state action and must meet federal Fourteenth Amendment commands -- can be used by state judiciaries to hold that state judicial enforcement of private agreements between same sex-couples is a species of state action forbidden by state DOMA. As explored in this essay, the potential doctrinal contortion of Shelley by state DOMAs is at once a …
Executive Preemption, Ernest A. Young
Executive Preemption, Ernest A. Young
Faculty Scholarship
Preemption of state regulatory authority by national law is the central federalism issue of our time. Most analysis of this issue has focused on the preemptive effects of federal statutes. But as Justice White observed in INS v. Chadha,“[f]or some time, the sheer amount of law . . . made by the [administrative] agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process.” Whether one views this development as a “bloodless constitutional revolution” or as a necessary “renovation” of the constitutional structure in response to the complexity of modern society, the advent of the administrative state …
Cultural Values And Government, Walter E. Dellinger Iii
Cultural Values And Government, Walter E. Dellinger Iii
Faculty Scholarship
Mr. Dellinger Mr. Dellinger originally delivered these remarks for the panel entitled The Role of Government in Defining Our Culture, at the Federalist Society’s 2006 National Lawyers Convention, on Saturday, November 18, 2006, in Washington, D.C. commenting on the Ninth Circuit decision Finley v. National Endowment for the Arts. The case involved the constitutionality of the Helms Amendment which required that the National Endowment for the Arts take decency into account in choosing who should be awarded artistic grants.
Quintessential Elements Of Meaningful Constitutions In Post-Conflict States, William W. Van Alstyne
Quintessential Elements Of Meaningful Constitutions In Post-Conflict States, William W. Van Alstyne
Faculty Scholarship
This examination compares several successful constitutions formulated to govern countries just formed from the conclusion of armed conflicts (including the U.S.). Some of the most important elements gleaned from these successful constitutions include an independent court before which one may appeal to the new constitution because such a constitution adequately secures the integrity of the court itself.
Unratified Treaties, Domestic Politics, And The U.S. Constitution, Curtis A. Bradley
Unratified Treaties, Domestic Politics, And The U.S. Constitution, Curtis A. Bradley
Faculty Scholarship
Under contemporary treaty practice, a nation's signature of a treaty typically does not make the nation a party to the treaty. Rather, nations become parties to treaties through an act of ratification or accession, which sometimes occurs long after signature. Nevertheless, Article 18 of the Vienna Convention on the Law of Treaties, which many commentators regard as reflecting customary international law, provides that when a nation signs a treaty it is obligated to refrain from actions that would defeat the object and purpose of the treaty until such time as it makes clear its intent not to become a party …
California Climate Change And The Constitution, Christopher H. Schroeder, Neil S. Siegel, Erwin Chemerinsky, Brigham Daniels, Brettny Hardy, Tim Profeta
California Climate Change And The Constitution, Christopher H. Schroeder, Neil S. Siegel, Erwin Chemerinsky, Brigham Daniels, Brettny Hardy, Tim Profeta
Faculty Scholarship
While the United States has of yet not passed meaningful legislation that addresses climate change, several U.S. states are taking steps to reduce the carbon footprints of their industries and citizens. As it has in the past, California is leading the way. But are its actions legal?
Self-Execution And Treaty Duality, Curtis A. Bradley
Self-Execution And Treaty Duality, Curtis A. Bradley
Faculty Scholarship
The Supremacy Clause of the U.S. Constitution states that, along with the Constitution and laws of the United States, treaties made by the United States are part of the "supreme Law of the Land." At least since the Supreme Court's 1829 decision in Foster v. Neilson, however, it has been understood that treaty provisions are enforceable in U.S. courts only if they are "self-executing." The legitimacy and implications of this self-execution requirement have generated substantial controversy and uncertainty among both courts and commentators. This Article attempts to clear up some of the conceptual confusion relating to the self-execution doctrine and, …
White Cartels, The Civil Rights Act Of 1866, And The History Of Jones V. Alfred H. Mayer Co., Darrell A. H. Miller
White Cartels, The Civil Rights Act Of 1866, And The History Of Jones V. Alfred H. Mayer Co., Darrell A. H. Miller
Faculty Scholarship
In 2008, Jones v. Alfred H. Mayer Co. turned forty. In Jones, the U.S. Supreme Court held for the first time that Congress can use its enforcement power under the Thirteenth Amendment, which abolished slavery, to prohibit private racial discrimination in the sale of property. Jones temporarily awoke the Thirteenth Amendment and its enforcement legislation--the Civil Rights Act of 1866--from a century-long slumber. Moreover, it recognized an economic reality: racial discrimination by private actors can be as debilitating as racial discrimination by public actors. In doing so, Jones veered away from three decades of civil rights doctrine--a doctrine that had …
The Constitutive And Entrenchment Functions Of Constitutions: A Research Agenda, Ernest A. Young
The Constitutive And Entrenchment Functions Of Constitutions: A Research Agenda, Ernest A. Young
Faculty Scholarship
No abstract provided.
Amending The Exceptions Clause, Joseph Blocher
Amending The Exceptions Clause, Joseph Blocher
Faculty Scholarship
Jurisdiction stripping is the new constitutional amendment, and the Exceptions Clause is the new Article V. But despite legal academia’s long-running obsessions with the meaning of constitutional amendment and the limits (if any) on Congress’s power to control federal jurisdiction, we still lack even a basic understanding of how these two forms of constitutional politicking interact. As legislators increasingly propose and pass jurisdiction-stripping legislation and pursue politically charged constitutional amendments, these constitutional processes have begun to step off of the pages of law reviews and into the halls of Congress. The looming collision between them makes it all the more …
Curricula And Complacency: A Response To Professor Levinson, Ernest A. Young
Curricula And Complacency: A Response To Professor Levinson, Ernest A. Young
Faculty Scholarship
No abstract provided.
Preemption And Federal Common Law, Ernest A. Young
Preemption And Federal Common Law, Ernest A. Young
Faculty Scholarship
No abstract provided.