Digital Commons Network^™

Brief Opposing Mma, Brendan T. Beery

Brendan T Beery

Brief challenging the constitutionality of the MMA

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Mary Margaret Meg Penrose

Meg Penrose

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

Meg Penrose

This article provides one of the first substantive treatments of United States v. Windsor, the Supreme Court's recent same-sex marriage case. The article's thesis proposes lex loci celebrationis (the place of marriage) as the proper method for determining marriage for federal law purposes. Failure to adopt lex loci celebrationis may violate the Fifth Amendment equal protection guarantee or the constitutional right to travel. Further, adoption of the lex loci celebrationis standard furthers marital stability and predictability.

Hougang By-Election Case: What Court Decision On By-Election Reveals, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

The Singapore Court of Appeal’s judgment in Vellama d/o Marie Muthu v Attorney-General [2013] SGCA 39 – popularly known as the Hougang by-election case – shows that the Court sees its role as policing the margins rather than involving itself in the heart of politics. The Court held that the Government was incorrect in asserting the Constitution confers on it the discretion not to hold a by-election at all after a parliamentary seat falls vacant. The judgment came as a surprise to those used to a judicial stance fairly deferential towards the Government, but on balance the Court did accord …

The Conflict Between Stare Decisis And Ov Erruling In Constitutional Adjudication, Steven J. Burton

steven J. burton

This article argues that the Constitution constrains the Supreme Court's power to overrule its constitutional precedents. It bases this argument on the Fifth Amendment's Due Process Clause and the conjunction of Marbury v. Madison, Martin v. Hunter's Lessee, Cohens v. Virginia, and the "case or controversy" limit on federal court jurisdiction.

Table Annexed To Article: Our Aesthetic Constitution, Peter J. Aschenbrenner

Peter J. Aschenbrenner

If natural language is deficient, then descriptions-in-words of constitutions may suffer the same fate. What other choices are there, when an investigator – or more typically, a speaker in ordered discourse – or even more usually a speaker uttering demotic elaboration – sets out to describe constitutional text? Isn’t it obvious that artifacts featuring words lock users into using more words? OCL offers (the first of) several studies.

Our Aesthetic Constitution, Peter J. Aschenbrenner

Peter J. Aschenbrenner

If natural language is deficient, then descriptions-in-words of constitutions may suffer the same fate. What other choices are there, when an investigator – or more typically, a speaker in ordered discourse – or even more usually a speaker uttering demotic elaboration – sets out to describe constitutional text? Isn’t it obvious that artifacts featuring words lock users into using more words? OCL offers (the first of) several studies.

Observaciones Personales, Jose Luis Sardon

Jose Luis Sardon

Porqué no decliné mi elección reciente como Magistrado del Tribunal Constitucional del Perú.

The Conspiracy Origin Of The First Amendment, Steven R. Morrison

Steven R Morrison

Scholars and jurists have misunderstood the import of three seminal 1919 First Amendment cases—Schenck v. United States, Frohwerk v. United States, and Abrams v. United States—as primarily free speech cases. They are better understood as free assembly cases. This is important for two reasons. First, individuals’ speech has the intended First Amendment effect only when speakers combine into groups. Second, the 1919 cases were the beginning of substantive First Amendment law, and so have resulted in a First Amendment jurisprudence that favors individual rights over group rights. This is a constitutional and normative mistake. Combined with the first reason, the …

Majoritarian Judicial Review: The Case Of Taiwan, Chien-Chih Lin

Chien-Chih Lin

Whether, and to what extent, the practice of judicial review in the United States is counter-majoritarian has been contentiously debated since its inception. Yet, whether judicial review in nascent democracies functions in the same way has not been lucidly articulated. Based on docket records, agenda setting, and case studies of the Constitutional Court in Taiwan, this paper suggests that judicial review in Taiwan is majoritarian, rather than counter-majoritarian. Specifically, the Constitutional Court is more majoritarian in the field of fundamental rights than it is in separation-of-powers cases. This finding is contradictory to conventional wisdom since high courts in new democracies …

How Much Religious Freedom Can An Arab Muslim Expect In Europe?, Marcel Stuessi

Marcel Stüssi

How much religious freedom can an Arab Muslim expect in Europe?

Arab Muslims who come to the West for work and security are often strong believers. Reli-gious law requires them to follow specific religious practices that may appear unusual to the average European observer. This situation has caused strained relations between the local (mainstream) population and Muslim migrants.

To make the position of Arab Muslims living in Europe more tangible, imagine the following situation. Assume that Mahmoud, a devout young Muslim, left Damascus to live in Zurich, Switzerland. As a young professional he was fed up with both Syria’s political …

La Incompatibilidad De Los Magistrados Constitucionales, Germán M. Teruel Lozano

Germán M. Teruel Lozano

No abstract provided.

"Merchants Of Discontent": An Exploration Of The Psychology Of Advertising, Addiction, And The Implications For Commercial Speech, Tamara R. Piety

Tamara R. Piety

In this paper, I attempt to draw parallels between the psychology of commercial advertising and marketing and the psychology of addiction. Both appear to be characterized by denial, escapism, narcissism, isolation, insatiability, impatience, and diminished sensitivity. Advertising appeals to these impulses and addiction is marked by them. In what follows, I explore these parallels in general and then explore the potential consequences or side effects in three specific contexts: the advertising of addictive products, advertising and children, and advertising and women. In these three areas, there is some evidence that advertising may be contributing to negative social phenomena in a …

The Conflict Between Stare Decisis And Overruling In Constitutional Adjudication, Steven J. Burton

steven J. burton

There is a near-consensus among Supreme Court Justices and constitutional scholars that there is no significant law, and need not be a law, constraining the Court's power to overrule its constitutional precedents. This Essay/Article argues, to the contrary, that the Court's overruling power should be constitutionally constrained for essentially the same reasons that virtually every other federal government power is constrained. It proposes and defends a constitutional law of overruling.

The United States Supreme Court: A Creative Check Of Institutional Misdirection?, Fletcher N. Baldwin

Fletcher N. Baldwin

In the Comment which follows Professor Baldwin presents a brief for an extremely creative Supreme Court. In contrast to those who suggest limiting the function of the Court, either by subject matter or by judicial restraint, the author would have it protect the compact upon which the community is based, by taking an active role to insure that the compensation implied in the compact flows in fact not only to the community but to the individual.

Mission Creep In National Security Law, Fletcher N. Baldwin Jr., Daniel R. Koslosky

Fletcher N. Baldwin

Many anti-terrorism measures are enacted with broad public support. There is often a general willingness on the part of the public to accept greater civil liberties deprivations in the face of a specific threat, or otherwise in times of general crisis, than would otherwise be the case. Sweeping anti-terrorism legislation is frequently crafted in reaction to the presence, or perceived presence, of immense, imminent danger. The medium and long-term consequences of the legislation may not fully be comprehended when political leaders and policymakers take swift action in the face strong public pressure in light of a recent terrorist attack or …

Heroínas Forzadas: Reflexiones Sobre Aborto Terapéutico A Propósito De Las Medidas Provisionales De La Corte Interamericana De Derechos Humanos En El Asunto B. Contra El Salvador, Beatriz Ramirez

Beatriz Ramirez

Weighing One Constitutional Need Against Another, Alan E. Garfield

Alan E Garfield

No abstract provided.

Main Structural Characteristics Of Global Constitutionalism., Elizabeth Lvova

Elizabeth Lvova

Nowadays current global problems stand as burning challenges of multi-level governance and reflect the importance of advanced cooperation of the states. Moreover the expansion of international human rights revealed the necessity of modification of international legal methods of common values security, shifting them on the global level. In these conditions modern international public law vividly evolved and is apt to reconfiguration including altering positions from cooperation to constitutionalization. Modifying relations among the international public authorities and the global activity of modern international actors (individuals, transnational companies and business organizations, international non-governmental organizations, etc.) pointed out the changes in the international …

The Perfect Union – A Theoretical And Legal Analysis Of The Constitution’S Bold Aim, Thomas W. Gordon

Thomas W Gordon

No abstract provided.

La Democracia Ante El Paradigma Tecnológico, Oportunidad Para La Regeneración. Reflexiones A Partir Del Proyecto #Europein, Germán M. Teruel Lozano

Germán M. Teruel Lozano

No abstract provided.

Municipal Liability And Liability Of Supervisors: Litigation Significance Of Recent Trends And Developments, Karen Blum, Celeste Koeleveld, Joel B. Rudin, Martin A. Schwartz

Martin A. Schwartz

"The purpose of this presentation is to examine two recent Supreme Court decisions, Connick v. Thompson and Ashcroft v. Iqbal with an eye to their impact on how lower federal courts will assess such claims in the wake of new constraints imposed by these cases. The focus of the discussion will be on developments in single-incident liability cases after Connick and supervisory liability claims after Iqbal."

Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Why Protect Private Arms Possession? Nine Theories Of The Second Amendment, Michael S. Green

Michael S. Green

No abstract provided.

The Privilege's Last Stand: The Privilege Against Self-Incrimination And The Right To Rebel Against The State, Michael S. Green

Michael S. Green

No abstract provided.

Discussion: A Focus On Federalism, Jeffrey B. Morris

Jeffrey B. Morris

No abstract provided.

Elección Individual, Jose Luis Sardon

Jose Luis Sardon

La gran transformación del Perú ocurrirá cuando la elección por lista sea sustituida por la elección individual de los congresistas.

Use "The Filter You Were Born With": The Unconstitutionality Of Mandatory Internet Filtering For The Adult Patrons Of Public Libraries, Richard J. Peltz-Steele

Richard J. Peltz-Steele

The only federal court (at the time of this writing) to consider the question ruled unconstitutional the mandatory filtering of Internet access for the adult patrons of public libraries. That 1998 decision helped the American Library Association and other free speech advocates fend off mandatory filtering for two years at the state and federal level, against the vigorous efforts of filtering proponents. Then, in 2000, the U.S. Congress conditioned federal funding of libraries on filter use, forcing the question into the courts as the latest colossal struggle over Internet regulation. This Article contends that the federal court in 1998 was …

Penumbral Academic Freedom: Interpreting The Tenure Contract In A Time Of Constitutional Impotence, Richard J. Peltz-Steele

Richard J. Peltz-Steele

This article recounts the deficiencies of constitutional law and common tenure contract language - the latter based on the 1940 Statement of Principles of the American Association of University Professors - in protecting the academic freedom of faculty on the modern university campus. The article proposes an Interpretation of that common language, accompanied by Illustrations, aiming to describe the penumbras of academic freedom - faculty rights and responsibilities that surround and emanate from the three traditional pillars of teaching, research, and service - that are within the scope of the tenure contract but not explicitly described by it, and therefore …

Considering The Libel Trial Of Émile Zola In Light Of Contemporary Defamation Doctrine, Peter A. Zablotsky

Peter Zablotsky

Touro Law School's three-day conference on the Dreyfus affair provided an opportunity to re-examine the libel trial Émile Zola. A modern view on tort law is provided to analyze this case as if it unfolded today.