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All Things To All People, Part One, Peter J. Aschenbrenner Dec 2104

All Things To All People, Part One, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic has identified the fundamental predicate of Government I, which operated, more or less, under Constitution I, the Constutiton of the year One, as a disposable government. See The Standard Model at War, 17 OCL 350. if government asserts, affirmatively, that it is disposable, isn’t it also asserting that it can replicate its systems (= structures political society) at will? OCL builds on its assertion of political society as a three-goaled contrivance. See Why Do Political Societies Exist? 2 OCL 883. Isn’t such a government asserting the primacy of the needs of civil society? By offering to ...


Does The Second Amendment Protect Firearms Commerce?, David B. Kopel Apr 2104

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel

David B Kopel

The Second Amendment protects the operation of businesses which provide Second Amendment services, including gun stores. Although lower federal courts have split on the issue, the right of firearms commerce is demonstrated by the original history of the Second Amendment, confirmed by the Supreme Court in District of Columbia v. Heller, and consistent with the Court's precedents on other individual rights.


How Do We Know When Political Societies Change?, Peter Aschenbrenner Jan 2104

How Do We Know When Political Societies Change?, Peter Aschenbrenner

Peter J. Aschenbrenner

Predicates, features, attributes and properties of a system are liable to change. How does the change get marked down? For this purpose what facet of a system should command our attention? Any system worth the name, Our Constitutional Logic argues, is aware of its own standing in civil society. OCL considers the issues raised.


A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan Oct 2019

A Modest Proposal On Supreme Court Unanimity To Constitutionally Invalidate Laws, Dwight G. Duncan

Faculty Publications

There is a problem in our constitutional history: the problem of split Supreme Court decisions invalidating democratically enacted laws. From Dred Scott[1] to Lochner[2] to Roe v. Wade[3] to Citizens United,[4] and even the recent Second Amendment decisions of Heller[5] and McDonald,[6] these patently fallible decisions on controversial political and social issues have divided the nation, politicized the Court, poisoned the Supreme Court nomination process and thwarted the political branches and democratic governance. Requiring Supreme Court unanimity to overturn legislation on constitutional grounds would therefore be morally and politically desirable. Why that is so ...


Embracing Race-Conscious College Admissions Programs: How Fisher V. University Of Texas At Austin Redefines "Affirmative Action" As A Holistic Approach To Admissions That Ensures Equal, Not Preferential, Treatment, Nancy L. Zisk Jun 2019

Embracing Race-Conscious College Admissions Programs: How Fisher V. University Of Texas At Austin Redefines "Affirmative Action" As A Holistic Approach To Admissions That Ensures Equal, Not Preferential, Treatment, Nancy L. Zisk

Nancy L. Zisk

In Fisher v. University of Texas at Austin, the United States Supreme Court affirmed well-established Supreme Court doctrine that race may be considered when a college or university decides whom to admit and whom to reject, as long as the consideration of race is part of a narrowly tailored holistic consideration of an applicant's many distinguishing features. The Court's latest decision heralds a new way of thinking about holistic race-conscious admissions programs. Rather than considering them as "affirmative action" plans that prefer any one applicant to the disadvantage of another, they should be viewed as the Court has ...


The Twenty-Fifth Amendment: Law, History, And Recommendations For Reform, John D. Feerick, John Rogan Jun 2019

The Twenty-Fifth Amendment: Law, History, And Recommendations For Reform, John D. Feerick, John Rogan

Miscellaneous

Handout for The Twenty-Fifth Amendment: Law, History, and Recommendations for Reform.


Native American Religious Accommodations, National Parks, And The Cutter Test, James Dohnalek Jun 2019

Native American Religious Accommodations, National Parks, And The Cutter Test, James Dohnalek

University of St. Thomas Law Journal

No abstract provided.


Religious Freedom And The Federal Executive Branch: Suggestions For Future Administrations, Melissa Rogers Jun 2019

Religious Freedom And The Federal Executive Branch: Suggestions For Future Administrations, Melissa Rogers

University of St. Thomas Law Journal

No abstract provided.


The Paradox Of The Black Church And Religious Freedom, Jacqueline C. Rivers Jun 2019

The Paradox Of The Black Church And Religious Freedom, Jacqueline C. Rivers

University of St. Thomas Law Journal

No abstract provided.


Ten Reasons We Need Rigorous Research On Effective Compassion, Byron R. Johnson Jun 2019

Ten Reasons We Need Rigorous Research On Effective Compassion, Byron R. Johnson

University of St. Thomas Law Journal

No abstract provided.


America's Founders, Religious Liberty, And The Common Good, Mark David Hall Jun 2019

America's Founders, Religious Liberty, And The Common Good, Mark David Hall

University of St. Thomas Law Journal

No abstract provided.


The Earthly Good Of Being Heavenly Minded: The Economic Value Of Us Religion, Brian J. Grim Jun 2019

The Earthly Good Of Being Heavenly Minded: The Economic Value Of Us Religion, Brian J. Grim

University of St. Thomas Law Journal

No abstract provided.


Promises, Practices, And Consequences Of Religious Freedom: A Global Overview, Roger Finke, Dane R. Mataic Jun 2019

Promises, Practices, And Consequences Of Religious Freedom: A Global Overview, Roger Finke, Dane R. Mataic

University of St. Thomas Law Journal

No abstract provided.


Catholic Thought On The Common Good: A Place For Establishment Clause Limits To Religious Exercise, Angela C. Carmella Jun 2019

Catholic Thought On The Common Good: A Place For Establishment Clause Limits To Religious Exercise, Angela C. Carmella

University of St. Thomas Law Journal

No abstract provided.


The Common Good Requires Robust Institutional Religious Freedom, Stanley Carlson-Thies Jun 2019

The Common Good Requires Robust Institutional Religious Freedom, Stanley Carlson-Thies

University of St. Thomas Law Journal

No abstract provided.


Religious Freedom And The Common Good: A Summary Of Arguments And Issues, Thomas C. Berg Jun 2019

Religious Freedom And The Common Good: A Summary Of Arguments And Issues, Thomas C. Berg

University of St. Thomas Law Journal

No abstract provided.


What Is A Confederate Monument?: An Examination Of Confederate Monuments In The Context Of The Compelled Speech And Government Speech Doctrines Jun 2019

What Is A Confederate Monument?: An Examination Of Confederate Monuments In The Context Of The Compelled Speech And Government Speech Doctrines

Law & Inequality: A Journal of Theory and Practice

No abstract provided.


A Comparative Study On Death Penalty Statutes And Their Effects On Certain Minority Groups In Light Of Furman V. Georgia, Analise Nuxoll Jun 2019

A Comparative Study On Death Penalty Statutes And Their Effects On Certain Minority Groups In Light Of Furman V. Georgia, Analise Nuxoll

Journal of the National Association of Administrative Law Judiciary

Part One of this comment will address the recent history of the death penalty in the United States, focusing on Furman v. Georgia, which placed a four-year moratorium on the death penalty in 1972. Part Two examines which states still have death penalty statutes and the reasons for choosing the selected states for further analysis. Part Two also addresses the difference between facial and as-applied attacks on the state statutes and the reason for analyzing the statutes under as applied unconstitutionality. Part Three explains the thought behind choosing to examine the death penalty’s effect on racial minorities, low socio-economic ...


Immigration Policy: A Look At Its History And Its Future, Melisa Fumbarg Jun 2019

Immigration Policy: A Look At Its History And Its Future, Melisa Fumbarg

Journal of the National Association of Administrative Law Judiciary

This comment will examine immigration in the United States, specifically by addressing questions involving the constitutionality of Deferred Action for Childhood Arrivals (DACA) and removal procedures. Part II will look at the historical background of immigration policy in the United States, including past amnesties and the latest reform, DACA. Part III will analyze DACA and why it was rescinded. Part IV will discuss one the most detrimental consequences of DACA being rescinded—deportation, and the constitutional limits of removal procedures. Part V will deploy some future predictions on immigration and the next steps Congress should take to ensure that there ...


Chevron Deference In The States: Lessons From Three States, Carrie Townsend Ingram Jun 2019

Chevron Deference In The States: Lessons From Three States, Carrie Townsend Ingram

Journal of the National Association of Administrative Law Judiciary

The appointment of Justice Neil Gorsuch to the Supreme Court of the United States has left many wondering if a change to the Chevron doctrine is impending. Justice Gorsuch’s colleague on the Court, Justice Clarence Thomas, shares similar views on Chevron. This article will compare the federal rule to three different states: Indiana, Delaware, and Arizona. Each state has taken a different path in determining that the judiciary should not give deference to an agency’s interpretation of the statutes that it is charged with enforcing. Delaware has affirmatively declared that the Chevron doctrine is not applicable in its ...


Marriage Equality And A Lawyer's Role In The Emergence Of "New" Rights, Daniel J. Canon Jun 2019

Marriage Equality And A Lawyer's Role In The Emergence Of "New" Rights, Daniel J. Canon

Indiana Journal of Law and Social Equality

The last few decades have seen a dramatic change in the way in which Americans view LGBT rights, and the right to same-sex marriage in particular. In 1972, the Supreme Court issued its first opinion on same-sex marriage. In sharp contrast with Obergefell v. Hodges, which established the constitutional right to marriage equality in 2015, the case of Baker v. Nelson held in one sentence that the idea that such a right might exist was not even worth discussing. What happened in the intervening forty years to change the outcome so profoundly? And how can attorneys seek to replicate that ...


Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama Jun 2019

Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama

Journal of Legislation

This Article proposes possible legislative reforms to Congress’s exercise of its contempt power in combating non-compliance with subpoenas duly issued as part of congressional investigations. With the recent trends in leveraging congressional investigations as an effective tool of separation of powers, this Article seeks to explore the exact bounds of congressional power in responding to executive officers’ noncompliance with congressional subpoenas, and whether or not current practice could be expanded beyond what has historically been tried by the legislative branch. This Article provides a brief summary of the historic practice behind different options for responding to non-compliance with subpoenas ...


The Need To Codify Roe V. Wade: A Case For National Abortion Legislation, Kathryn N. Peachman Jun 2019

The Need To Codify Roe V. Wade: A Case For National Abortion Legislation, Kathryn N. Peachman

Journal of Legislation

No abstract provided.


Challenging The Constitutionality Of Private Prisons: Insights From Israel, Angela E. Addae Jun 2019

Challenging The Constitutionality Of Private Prisons: Insights From Israel, Angela E. Addae

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.


Lopez And The Federalization Of Criminal Law, Russell L. Weaver Jun 2019

Lopez And The Federalization Of Criminal Law, Russell L. Weaver

Russell L. Weaver

No abstract provided.


Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee Jun 2019

Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee

Faculty Scholarship at Penn Law

This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that ...


Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten Jun 2019

Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten

Ocean and Coastal Law Journal

In Maine, the intertidal zone has seen many disputes over its use, access, and property rights. Recently, in Ross v. Acadian Seaplants, Ltd., the Maine Supreme Judicial Court, sitting as the Law Court, held that rockweed seaweed in the intertidal zone is owned by the upland landowner and is not part of a public easement under the public trust doctrine. The Court held harvesting rockweed is not fishing. This case will impact private and public rights and also the balance between the State's environmental and economic interests. This Comment addresses the following points: first, the characteristics of rockweed and ...


Fisher’S Forewarning: Using Data To Normalize College Admissions, Shakira D. Pleasant Jun 2019

Fisher’S Forewarning: Using Data To Normalize College Admissions, Shakira D. Pleasant

Shakira D. Pleasant

This Article presents a nuanced view of Fisher v. University of Texas that has largely been ignored in mainstream discourse in the case. In Fisher, Justice Anthony Kennedy cast the deciding vote to uphold the University of Texas (“UT”) race-conscious admissions policy. This was the first time that Justice Kennedy voted to uphold a race-conscious policy, and many commentators have focused on this aspect of his Fisher majority opinion. However, Justice Kennedy also gave a stern forewarning to UT and other universities: in the future, they better have strong data to show that they need to use race-conscious admissions. Kennedy ...


On "Clear And Present Danger", Leslie Kendrick Jun 2019

On "Clear And Present Danger", Leslie Kendrick

Notre Dame Law Review

Justice Oliver Wendell Holmes’s dissent in United States v. Abrams gave us the “marketplace of ideas” metaphor and the “clear and present danger” test. Too often unremarked is the contradiction between the two. At the same time that Holmes says “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” he also says that “the present danger of immediate evil” permits Congress to restrict the expression of opinion. When the anticipated harm comes about through acceptance of the speaker’s idea, then the imposition of the clear and ...


Compelled Commercial Speech And The First Amendment, Martin H. Redish Jun 2019

Compelled Commercial Speech And The First Amendment, Martin H. Redish

Notre Dame Law Review

For the most part, the First Amendment is viewed as a means of restricting government’s authority to suppress expression. Both speakers and listeners are assumed to benefit from speech, and, therefore, the more communication of opinion and information, the better it is for both society and the democratic system. However, for a variety of important reasons, the courts have extended First Amendment protection to limit government’s power to compel expression by private individuals and entities. The Court has wisely recognized that governmental compulsion to speak can often bring about many of the very same constitutional and democratic pathologies ...