Open Access. Powered by Scholars. Published by Universities.®

Digital Commons Network

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 30 of 142

Full-Text Articles in Entire DC Network

Constituciones Duraderas – Una Crítica Democrática (Enduring Constitutions – A Democratic Critique), Allan C. Hutchinson, Joel Colon-Rios Dec 2016

Constituciones Duraderas – Una Crítica Democrática (Enduring Constitutions – A Democratic Critique), Allan C. Hutchinson, Joel Colon-Rios

Allan C. Hutchinson

This paper argues that formal constitutions and their institutional paraphernalia do more to inhibit and mitigate the emancipatory potential of democracy than to nurture and realize it. Spanish Abstract: La relación entre democracia y constituciones es larga y turbulenta. La tendencia de los que se inclinan hacia el lado constitucionalista ha sido la de percibir a la democracia como una amenaza al orden político y a la preservación de ciertos valores considerados importantes, mientras que los que adoptan una postura democrática, más que cualquier otra cosa, tienden a tratar a las constituciones como un obstáculo a la participación popular. En ...


Why Coywolf Goes To Court, Signa A. Daum Shanks Dec 2016

Why Coywolf Goes To Court, Signa A. Daum Shanks

Signa A. Daum Shanks

This article is an effort influenced by previous works considered part of "trickster" discourse. But unlike other trickster stories meant to illustrate First Nations’ contents and processes, this presentation creates a Métis-specific example of trickster methodology and knowledge. Similar to the historic role Métis individuals have had in Canadian history, this effort contains a type of "translator" system within its citations so that the main story parallels information about trends in Canadian legal analysis. By having this format, it is hoped that those less familiar with Métis courtroom struggles will gain insight into how the pursuit of Métis constitutionalism both ...


The Dual Meaning Of Evidence-Based Judicial Review Of Legislation, Ittai Bar-Siman-Tov Nov 2016

The Dual Meaning Of Evidence-Based Judicial Review Of Legislation, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This article contributes to the nascent debate about the globally emerging, yet largely undefined, phenomenon of evidence-based judicial review of legislation, by offering a novel conceptualization of evidence-based judicial review.

It argues that evidence-based judicial review can have two related, but very different, meanings: one in which the judicial decision determining constitutionality of legislation is a product of independent judicial evidence-based decision-making; and the other in which the judicial decision on constitutionality of legislation focuses on evidence about the question of whether the legislation was a product of legislative evidence-based decision-making. 

The article then employs this novel insight about the ...


Response To “Necessary To The Security Of Free States: The Second Amendment As The Auxiliary Right Of Federalism”, William G. Merkel Nov 2016

Response To “Necessary To The Security Of Free States: The Second Amendment As The Auxiliary Right Of Federalism”, William G. Merkel

William G. Merkel

No abstract provided.


Reclaiming Equality To Reframe Indigent Defense Reform, Lauren Sudeall Lucas Nov 2016

Reclaiming Equality To Reframe Indigent Defense Reform, Lauren Sudeall Lucas

Lauren Sudeall

Equal access to resources is fundamental to meaningful legal representation, yet for decades, equality arguments have been ignored in litigating indigent defense reform. At a time when underfunded indigent defense systems across the country are failing to provide indigent defendants with adequate representation, the question of resources is even more critical. Traditionally, advocates seeking indigent defense reform have relied on Sixth Amendment arguments to protect the rights of indigents in this context; however, the Sixth Amendment approach suffers from a number of shortcomings that have made it a poor tool for systemic reform, including its exclusive focus on attorney performance ...


Some Advice For President-Elect Donald Trump, Alan E. Garfield Nov 2016

Some Advice For President-Elect Donald Trump, Alan E. Garfield

Alan E Garfield

No abstract provided.


Constitutional Intent: The Illinois Supreme Court's Use Of The Record In Interpreting The 1970 Constitution, 8 J. Marshall J. Prac. & Proc. 189 (1974), Ann Lousin Nov 2016

Constitutional Intent: The Illinois Supreme Court's Use Of The Record In Interpreting The 1970 Constitution, 8 J. Marshall J. Prac. & Proc. 189 (1974), Ann Lousin

Ann M. Lousin

No abstract provided.


Speech And Strife, Robert L. Tsai Nov 2016

Speech And Strife, Robert L. Tsai

Robert L Tsai

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation ...


Constitutional Borrowing, Robert L. Tsai Nov 2016

Constitutional Borrowing, Robert L. Tsai

Robert L Tsai

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. The authors' examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law ...


Democracy's Handmaid, Robert L. Tsai Nov 2016

Democracy's Handmaid, Robert L. Tsai

Robert L Tsai

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Tsai draws from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this ...


John Brown's Constitution, Robert L. Tsai Nov 2016

John Brown's Constitution, Robert L. Tsai

Robert L Tsai

It will surprise many Americans to learn that before John Brown and his men briefly captured Harper’s Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These acts of writing, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but ...


The Death Penalty In The Twenty-First Century , Stephen B. Bright, Edward Chikofsky, Laurie Ekstrand, Harriet C. Ganson, Paul D. Kamenar, Robert E. Morin, William G. Otis, Jasmin Raskin, Ira P. Robbins, Diann Rust-Tierney, Charles F. Shilling, Andrew L. Sooner, Ronald J. Rabak, David V. Drehle, James Wootton Nov 2016

The Death Penalty In The Twenty-First Century , Stephen B. Bright, Edward Chikofsky, Laurie Ekstrand, Harriet C. Ganson, Paul D. Kamenar, Robert E. Morin, William G. Otis, Jasmin Raskin, Ira P. Robbins, Diann Rust-Tierney, Charles F. Shilling, Andrew L. Sooner, Ronald J. Rabak, David V. Drehle, James Wootton

Jamin Raskin

No abstract provided.


Independent Agencies In The United States: The Responsibilities Of Public Lawyers, Marshall J. Breger, Gary Edles Nov 2016

Independent Agencies In The United States: The Responsibilities Of Public Lawyers, Marshall J. Breger, Gary Edles

Gary Edles

Independent federal agencies occupy a special constitutional position in the governmental structure. Their stock-in-trade is the expert, apolitical resolution of regulatory issues. They are supposedly “independent” of the political will of the executive branch. Because most are multi-member organizations, they are also perceived as accommodating diverse views and able to prevent extreme outcomes through the compromise inherent in the process of collegial decision-making. But such a view is not universally held. A well known examination of such agencies in the 1930s described them uncharitably as a “headless ‘fourth branch’ of government, a haphazard deposit of irresponsible agencies and uncoordinated powers ...


Foundational Myths And The Reality Of Dependency: The Role Of Marriage , Ann Shalleck Nov 2016

Foundational Myths And The Reality Of Dependency: The Role Of Marriage , Ann Shalleck

Ann Shalleck

No abstract provided.


Before Election Day, Some Reminders Of America's Greatness, Alan E. Garfield Nov 2016

Before Election Day, Some Reminders Of America's Greatness, Alan E. Garfield

Alan E Garfield

No abstract provided.


Brief Of Amicus Curiae Academic Authors And Legal Scholars In Support Of Defendants Appellees And Affirmance, Nos. 12-14676-Ff, 12-15147-Ff (April 25, 2013), David R. Hansen, Peter A. Jazsi, Pamela Samuelson, Jason Schultz, Rebecca Tushnet Oct 2016

Brief Of Amicus Curiae Academic Authors And Legal Scholars In Support Of Defendants Appellees And Affirmance, Nos. 12-14676-Ff, 12-15147-Ff (April 25, 2013), David R. Hansen, Peter A. Jazsi, Pamela Samuelson, Jason Schultz, Rebecca Tushnet

David R Hansen

No abstract provided.


Virtue And The Constitution Of The United States, John M. Finnis Oct 2016

Virtue And The Constitution Of The United States, John M. Finnis

John M. Finnis

In this Article, Finnis reflects on the following five questions: (1) Does the Constitution require or presuppose, or thwart or even forbid, a formative project of government inculcating in citizens the civic virtue necessary to promote and sustain a good society?; (2) To what extent can the institutions of civil society support or even supplant government in inculcating civic virtue?; (3) What is the content of the civic virtue that should be inculcated in circumstances of moral disagreement, and how does it relate to traditional moral virtue?; (4) Does it include respect for and appreciation of diversity?; (5) Should a ...


Lost Fidelities, Barry Cushman Oct 2016

Lost Fidelities, Barry Cushman

Barry Cushman

Owen Roberts was accused of a variety of things in 1937, but “fidelity” was not among them. Justice Harlan Fiske Stone and Professor Felix Frankfurter were among many who accused Roberts of performing, as Frankfurter put it, a jurisprudential “somersault” “incapable of being attributed to a single factor relevant to the professed judicial process.” To Frankfurter, it was “all painful beyond words,” and gave him “a sickening feeling which is aroused when moral standards are adulterated in a convent.” Yet when Roberts announced his retirement from the Court eight years later, Chief Justice Stone, along with now-Justices Frankfurter and Robert ...


No Praise For Process Federalism: The Political Safeguards Mirage And The Necessity Of Substantial, Substantive Judicial Review, Tuan Samahon Sep 2016

No Praise For Process Federalism: The Political Safeguards Mirage And The Necessity Of Substantial, Substantive Judicial Review, Tuan Samahon

Tuan Samahon

No abstract provided.


Town Of Greece And City Of Saguenay: Non-Establishment Principles With Or Without An Establishment Clause, 14 First Amend. L. Rev. 343 (2016), Donald L. Beschle Sep 2016

Town Of Greece And City Of Saguenay: Non-Establishment Principles With Or Without An Establishment Clause, 14 First Amend. L. Rev. 343 (2016), Donald L. Beschle

Donald L. Beschle

No abstract provided.


Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen E. Henderson Sep 2016

Testimony On Unmanned Aircraft Systems Rules And Regulations, Stephen E. Henderson

Stephen E Henderson

Chairman Barrington, Vice Chair Brooks, members of the Committee on Public Safety, Senators, and distinguished guests, I am grateful for the opportunity to speak to you today about unmanned aerial systems, or drones, and more particularly about their federal constitutional implications and what might be the constitutional restrictions on any legislation you might like to enact. I am the Judge Haskell A. Holloman Professor of Law at the University of Oklahoma, where my teaching and research focus on criminal law and procedure and privacy, including the constitutional rights pertaining thereto.

My topic is not an easy one. The constitutional law ...


Test Your Knowledge Of Church And State, Alan E. Garfield Sep 2016

Test Your Knowledge Of Church And State, Alan E. Garfield

Alan E Garfield

No abstract provided.


Take Our Quiz About Constitutional Law, Judith L. Ritter Sep 2016

Take Our Quiz About Constitutional Law, Judith L. Ritter

Judith L Ritter

No abstract provided.


Equality: A Test On Equal Protection, Alan E. Garfield Sep 2016

Equality: A Test On Equal Protection, Alan E. Garfield

Alan E Garfield

No abstract provided.


Implied Vs. Fundamental Freedom: A Test, Alan E. Garfield Sep 2016

Implied Vs. Fundamental Freedom: A Test, Alan E. Garfield

Alan E Garfield

No abstract provided.


A Quiz On Federal Power And States’ Rights, Alan E. Garfield Sep 2016

A Quiz On Federal Power And States’ Rights, Alan E. Garfield

Alan E Garfield

No abstract provided.


Constitutional Conundrums, Alan E. Garfield Sep 2016

Constitutional Conundrums, Alan E. Garfield

Alan E Garfield

No abstract provided.


Rlupia And The Limits Of Religious Institutionalism, Zachary A. Bray Sep 2016

Rlupia And The Limits Of Religious Institutionalism, Zachary A. Bray

Zachary Bray

What special protections, if any, should religious organizations receive from local land use controls? The Religious Land Use and Institutionalized Persons Act (“RLUIPA”)—a deeply flawed statute—has been a magnet for controversy since its passage in 2000. Yet until recently, RLUIPA has played little role in debates about “religious institutionalism,” a set of ideas that suggest religious institutions play a distinctive role in developing the framework for religious liberty and that they deserve comparably distinctive deference and protection. This is starting to change: RLUIPA’s magnetic affinity for controversy has begun to connect conflicts over religious land use with ...


Children Of Two Logics: A Way Into Canadian Constitutional Culture, Benjamin Berger Aug 2016

Children Of Two Logics: A Way Into Canadian Constitutional Culture, Benjamin Berger

Benjamin L. Berger

Through an analysis of the Canadian case, this article explores the tension between the universal and the particular in modern constitutional imagination, arguing that the points of friction between these two “logics” of constitutionalism are invaluable entry points into understanding the defining features of various constitutional cultures. The article argues that to understand Canadian constitutional culture, both at the structural level and also in the finer strokes surrounding given issues, one must appreciate that Canadians are the children of two constitutional logics: that of the local, the particular, and harmonious relations between diverse communities achieved through political compromise, and that ...


A Plea For Constitutional Balance, Stephen M. Feldman Aug 2016

A Plea For Constitutional Balance, Stephen M. Feldman

Stephen M. Feldman

The fundamentalist approach of the conservative bloc of Justices on the U.S. Supreme Court in regards to corporate spending on political campaigns skews government processes and generates unintended consequences.  This paper discusses the historical approach of the Framers to invigorate the new republican democratic government while protecting individual liberties by separating these into public and private spheres of activity.