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Constitutional Conflict And The Development Of Canadian Aboriginal Law, Guy Charlton, Xiang Gao

The University of Notre Dame Australia Law Review

This paper argues that aboriginal rights in Canada have been greatly affected by 19 th century governmental and social conflicts within the Canadian colonial state. These conflicts, largely over the ownership of land and regulatory authority between the federal government and the provinces necessarily impacted the First Nations on the ground while affecting how their legal claims were recognized and implemented. In particular they impacted the legal efficacy of treaty rights, the scope of rights recognised by the courts and an expansive legally protected notion of indigenous sovereignty. As a result, the rights now protected under sec. 25 and 35 …

The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke

Anthony O'Rourke

Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number …

Discretionary Dockets, Randy J. Kozel, Jeffrey Pojanowski

Randy J Kozel

The Supreme Court’s workload and its method for selecting cases have drawn increasing critical scrutiny. Similarly, and separately, recent commentary has focused on the disparate approaches the Court has taken to resolving cases on its (historically small) docket. In this Essay we draw these two lines of inquiry together to argue that the Court’s case selection should align with its approach to constitutional adjudication. In doing so, we discuss four modes of constitutional decisionmaking and then examine the interplay between those modes, the Court’s management of its docket, and its sense of institutional role. The Court, we argue, has neither …

Joseph Weiler, Eric Stein, And The Transformation Of Constitutional Law, Daniel Halberstam

Book Chapters

This chapter pursues that idea in three parts. Part I reviews the key contributions of The Transformation of Europe. Part II takes us back for a critical analysis of the idea of ‘constitutionalism’ as first developed by Eric Stein and then deployed by Joseph Weiler. On closer inspection, we shall see here that The Transformation of Europe may have neglected a core element of constitutional law, something this chapter terms a ‘generative space’ for law and politics. As this part further explains, recognising this generative element of constitutionalism lies at the heart of the struggle to make sense both practically …

A Look At The Fourth Amendment Implications Of Drone Surveillance By Law Enforcement Today, Mary Mara

ConLawNOW

This paper will examine the current state of drone technology and its increasing prevalence in private and public settings. As police agencies seek to incorporate this new technology into their crime-fighting arsenal, serious Fourth Amendment privacy considerations arise. Although a national debate rages in this country about the impact of modern technology on privacy rights, Congress, the Federal Aviation Authority (FAA), and the Supreme Court have yet to weigh in on the Fourth Amendment implications of warrantless drone surveillance by law enforcement. Furthermore, while some states have attempted to step into the breach by passing legislation which limits the use …

Paliotta V. State Dep’T Of Corrections, 133 Nev. Adv. Op. 58 (Sept. 14, 2017), Anna Sichting

Nevada Supreme Court Summaries

The Court determined it must consider the sincere religious beliefs of the individual when evaluating claims under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act (RLUIPA). It is improper to evaluate those claims under the centrality test, which attempts to determine if the individual’s beliefs are central to a tenant of the religion in question. Once the sincere belief is shown, the courts must then fully examine the remaining considerations under the Free Exercise Clause and the RLUIPA.

The Constitutional Constant, Richard A. Primus

Articles

According to a conventional view of the Constitution as a precommitment strategy, constitutional rules must remain fixed over time in order for the Constitution to do its work. In practice, however, constitutional rules regularly change over time, even without formal amendment. What is actually constant over time in the American constitutional system is not the content of constitutional law: it is the correspondence between the content of constitutional law and the American people’s (or at least the decision-making class’s) most powerful intuitions about issues of structure and ethos in American government. At any given time, constitutional law reflects those intuitions. …

The Abraham Lincoln Lecture On Constitutional Law, Steven G. Calabresi

Northwestern University Law Review

These introductory remarks to the Inaugural Abraham Lincoln Lecture on Constitutional Law were delivered at Northwestern Pritzker School of Law on April 6, 2017.

The Inaugural Abraham Lincoln Lecture On Constitutional Law: Electoral College Reform, Lincoln-Style, Akhil Reed Amar

Northwestern University Law Review

This Inaugural Abraham Lincoln Lecture was delivered at Northwestern Pritzker School of Law on April 6, 2017.

Originalism And The Criminal Law: Vindicating Justice Scalia's Jurisprudence - And The Constitution, Adam Lamparello, Charles E. Maclean

Akron Law Review

Justice Scalia was not perfect—no one is—but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective—namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution—that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.” Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. …

A Diverse Student Body Without Student Bodies?: Online Classrooms And Affirmative Action, Ryan H. Nelson

Pepperdine Law Review

America’s public universities engage students in myriad classroom environments that range from traditional, entirely-in-person classroom environments to entirely-online, virtual classrooms, with every shade of grey in between. These varied learning environments pose a fascinating question with respect to the ways such universities use affirmative action in admissions. In Grutter v. Bollinger, the United States Supreme Court held that “student body diversity is a compelling state interest that can justify the use of race in university admissions.” Indeed, student body diversity remains one of the few “compelling interests” that the Court has held satisfies the constitutional imperative that the “government may …

Developments In Constitutional Law: The 1994-95 Term, Hester Lessard, Bruce Ryder, David Schneiderman, Margot Young

Bruce B. Ryder

This essay explores the apparent triumph of the individual of classical liberalism in Supreme Court decision making. Our analysis examines the particular way in which this political imagery of the individual interacts with judicial assumptions about important social institutions: the family, religion, media, and the state. What is revealed is the judicial adoption of an intricate social and political map in which abstract individualism combines with, and often masks, traditional, conservative images of social order and moral choice.

2016-2017 Georgia State University Law Review Symposium: Exploring The Right To Die In The U.S., Margaret Pabst Battin

Georgia State University Law Review

This transcript is a reproduction of the Keynote Presentation at the 2016–2017 Georgia State University Law Review Symposium on November 11, 2016. Margaret Battin, is a Distinguished Professor of Philosophy and Adjunct Professor of Internal Medicine at the University of Utah.

Distinctive Factors Affecting The Legal Context Of End-Of-Life Medical Care For Older Persons, Marshall B. Kapp

Georgia State University Law Review

Current legal regulation of medical care for individuals approaching the end of life in the United States is predicated essentially on a factual model emanating from a series of high-profile judicial opinions concerning the rights of adults who become either permanently unconscious or are clearly going to die soon with or without aggressive attempts of curative therapy.

The need for a flexible, adaptable approach to medically treating people approaching the end of their lives, and a similar openness to possible modification of the legal framework within which treatment choices are made and implemented, are particularly important when older individuals are …

The Press, Privacy, And Public Figures - A Symposium - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.

Symposium On A Free Press And A Fair Trial - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.

Prisoner's Rights And The Correctional Scheme: The Legal Controversy And Problems Of Implementation - A Symposium - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.

Skyjacking: Problems And Potential Solutions - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.

50th Annual William H. Leary Lecture - Fifty Years Of Constitutional Law: What's Changed?, Erwin Chemerinsky

Erwin Chemerinsky

I truly believe that over the next fifty years there will be, as there was in the prior fifty years, an expansion of freedom; an increase in equality. Because here I believe, and I’ll conclude with this, that the late Dr. Martin Luther King got it right when he said “The arc of the moral universe is long but it bends towards justice."

Qualitative Diversity: Affirmative Action's New Reframe, Eang L. Ngov

Faculty Scholarship

No abstract provided.

Constitutionalism And Democracy Dataset, Version 1.0, Todd A. Eisenstadt, Carl Levan, Tofigh Maboudi

Political Science: Faculty Publications and Other Works

The main objective of the CDD is to quantify the process of constitution-making since 1974. This is the first public release of any data on the process of constitution-making. This release includes data on 144 national constitutions promulgated in 119 countries from 1974 to 2014. The unit of analysis in the data is national constitutions. The data in this release includes only “new” constitutions and does not include suspended, re-installed, amended, or interim constitutions. In this release, only countries with a population larger than 500,000 are included. The authors intend to update the data by including all countries, expanding the …

A Promise Unfulfilled: Challenges To Georgia’S Death Penalty Statute Post-Furman, William Cody Newsome

Georgia State University Law Review

In Furman v. Georgia, the U.S. Supreme Court agreed with Furman’s counsel. Three Justices agreed that Georgia law, as applied, was arbitrary and potentially discriminatory. Moreover, one Justice challenged the value of the death penalty and doubted it served any of the alleged purposes for which it was employed.

Although many challenges subsequent to Furman have been raised and arguably resolved by the Court, the underlying challenges raised by Furman appear to remain prevalent with the Court. Justice Breyer recently echoed the concurring opinions of Furman in his dissenting opinion from Glossip v. Gross, when he stated: “In …

Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke

William & Mary Bill of Rights Journal

This Article integrates two scholarly conversations to shed light on the divergent ways in which courts and legislatures implement constitutional texts. First, there is a vast literature examining the different ways in which courts and extrajudicial institutions, including legislatures, implement the Constitution’s textually vague expressions. Second, in recent years legal philosophers have begun to use philosophy of language to elucidate the relationship between vague legal texts and the content of laws. There is little scholarship, however, that uses philosophy of language to analyze the divergent ways in which legislatures and courts implement vague constitutional provisions. This Article argues that many …

The Vice Presidency In The Twenty-First Century, Jody C. Baumgartner

Pepperdine Law Review

The vice presidency has undergone almost revolutionary change since its inception 227 years ago. Conceived as a convenient solution to a problem created by the Electoral College, the Vice President has only two constitutional functions—to serve as a successor to the President and as the President of the Senate. However, over the past sixty years, vice presidents have become increasingly part of and integral to American governance, and the last three (Al Gore, Dick Cheney, and Joe Biden) have been exceptionally active executive actors. What was once an all-but forgotten office is now an essential part of a president’s administration. …

The Vice President-More Than An Afterthought?, Richard B. Cheney, Edwin Meese Iii, Douglas W. Kmiec

Pepperdine Law Review

A round-table discussion among former U.S. Vice President Richard B. Cheney, Caruso Family Professor of Law and retired U.S. Ambassador Douglas Kmiec, and former U.S. Attorney General Edwin Meese III considered the practical implications of conceiving the Vice President as a legislative officer, an executive officer, or both. It was noted that until the second half of the twentieth century, the Office of the Vice President was conceived as legislative. Funding for the Office appeared in budget lines relating to Congress and physically, the Vice President’s office was in the Capitol. Beginning with Walter Mondale’s service as Vice President, presidents …

A Constitutional Afterthought: The Origins Of The Vice Presidency, 1787 To 1804, Edward J. Larson

Pepperdine Law Review

At the origins of the office, even though the Vice President was, as its first occupant John Adams declared, “only one breath” away from the presidency, the Office of the Vice President was an afterthought of the Constitutional Convention. Never discussed during the first three months of the four-month long Convention, the Committee of Eleven introduced the vice presidency as a byproduct of how it resolved to fix the presidential selection process. Under this process, the Electoral College emerged, with each state assigned the same number of electors as its members in the House of Representatives and Senate. Each elector …

Perspectives From The Bench On Feminist Judgments, Elinore Marsh Stormer

ConLawNOW

Judge Elinore Marsh Stormer, probate judge in Summit County, Ohio, gave these remarks as part of a panel discussion on feminist judging. The discussion took place at a conference sponsored by the Center for Constitutional Law at the University of Akron in October 2016. Judge Stormer offered insights on her own experience as a woman judge and on the role of judges addressing issues of gender equality in their courts.

Erisa Preemption After Gobeille V. Liberty Mutual: Completing The Retrenchment Of Shaw, Edward A. Zelinsky

Faculty Articles

Gobeille v. Liberty Mutual Insurance Co. is the U.S. Supreme Court’s most recent preemption decision under the Employee Retirement Income Security Act of 1974 (ERISA). In Gobeille, the Court completed the process of reconciling the restrained approach to ERISA preemption announced in New York State Conference of Blue Cross & Blue Shield Plans v. Travelers Insurance Co. with the Court’s literal and expansive approach adopted earlier in Shaw v. Delta Air Lines, Inc. Gobeille consummated this reconciliation by confirming the sub silentio retrenchment of Shaw and its “plain language” approach in favor of Traveler’s broader construction of ERISA preemption. …

A Meaningful Opportunity For Release: Resentencing Hearings For Juvenile Offenders Sentenced To Life Without Parole Following Aiken V. Byars, Robert M. Dudek

South Carolina Law Review

No abstract provided.

The Political Process Argument For Overruling Quill, Edward A. Zelinsky

Faculty Articles

Should the U.S. Supreme Court overrule Quill Corporation v. North Dakota? In Quill, the Court held that, under the dormant Commerce Clause of the U.S. Constitution, the states cannot impose the obligation to collect sales taxes on out-of-state vendors which lack physical presence in the taxing state. As internet commerce has grown, Quill’s physical presence test has severely hampered the states’ ability to enforce their sales taxes.

Much of the Supreme Court’s case law suggests that, under the banner of stare decisis, the Court should not overturn Quill. This case law indicates that it is Congress’s …