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Randomized Judicial Review, Andrei Marmor Mar 2018

Randomized Judicial Review, Andrei Marmor

Andrei Marmor

One of the main arguments in support of constitutional judicial review points to the need to curtail the legal and political power of majority rule instantiated by democratic legislative institutions. This article aims to challenge the counter majoritarian argument for judicial review by showing that there is very little difference, at least morally speaking, between the current structure of constitutional judicial review in the US, and a system that would impose limits on majoritarian decisions procedures by an entirely randomized mechanism. The argument is based on a hypothetical model of a randomized system of judicial review, and proceeds to show ...


An Institutional Conception Of Authority, Andrei Marmor Mar 2018

An Institutional Conception Of Authority, Andrei Marmor

Andrei Marmor

The essay develops a conception of practical authorities that ties their legitimacy to the particular nature of the social practice or institution in which practical authorities invariably operate, and the terms of the subjects’ participation in that practice. The main argument of the paper draws on the distinction between what it takes to have practical authority and what would make it legitimate. The general idea is that what it takes to have practical authority is always determined by a social or institutional practice, and thus the legitimacy of any given authority crucially depends on the nature of the practice and ...


African Courts And Separation Of Powers: A Comparative Study Of Judicial Review In Uganda & South, Joseph M. Isanga Mar 2018

African Courts And Separation Of Powers: A Comparative Study Of Judicial Review In Uganda & South, Joseph M. Isanga

Joseph Isanga

Achieving political stability in a transitional democracy is a fundamental goal, the resoluteness of which is in part maintained by courts of judicial review that are independent from political bias and devoid of deference to traditionally more powerful branches of government. The recent democratic transitions occurring in the African nations of South Africa and Uganda provide a unique, contemporary insight into the formation of a constitutional jurisprudence. This study is an examination of pivotal cases decided by the Constitutional Courts of South Africa and Uganda, the roles that these decisions play in political stability, and the potential for political bias ...


African Judicial Review, The Use Of Comparative African Jurisprudence, And The Judicialization Of Politics, Joseph M. Isanga Mar 2018

African Judicial Review, The Use Of Comparative African Jurisprudence, And The Judicialization Of Politics, Joseph M. Isanga

Joseph Isanga

This Article examines African constitutional courts’ jurisprudence—that is, jurisprudence of courts that exercise judicial review—and demonstrates the increasing role of sub-Saharan Africa’s constitutional courts in the development of policy, a phenomenon commonly referred to as 'judicialization of politics' or a country’s 'judicialization project.' This Article explores the jurisprudence of constitutional courts in select African countries and specifically focuses on the promotion of democracy, respect for human rights, and the rule of law, and presupposes that although judges often take a positivist approach to adjudication, they do impact policy nevertheless. The use of judicial review in Africa ...


United States V. Hubbell: Encryption And The Discovery Of Documents, Gregory S. Sergienko Mar 2018

United States V. Hubbell: Encryption And The Discovery Of Documents, Gregory S. Sergienko

Greg Sergienko

Five years ago, in a contribution to these pages, I suggested that the Supreme Court's oldest precedents and the original intent of the framers of the Constitution precluded the use of evidence produced under a grant of immunity against the producer, even though the material produced included documents that the producer had not been compelled to write. This implied that information concealed with a cryptographic key could not be used in a criminal prosecution against someone from whom the key had been obtained under a grant of immunity. The issue, however, was doubtful given the tendency of the Court ...


Social Contract Neutrality And The Religion Clauses Of The Federal Constitution, Gregory S. Sergienko Mar 2018

Social Contract Neutrality And The Religion Clauses Of The Federal Constitution, Gregory S. Sergienko

Greg Sergienko

'Neutrality' has become the slogan that the Supreme Court uses for judging all claims of freedom of religion whether under the Establishment Clause or the Free Exercise Clause. However, the word 'neutrality' conceals the Court's inconsistent use of the concept. Thus, in Rosenberger v. Rectors of the University of Virginia, the recent debate about funding for religious publications, both the majority and the dissent asserted that only their approach was truly neutral. This inconsistency in the meaning of neutrality in the religion clauses is merely part of a general inconsistency in the Court's treatment of the religion clauses ...


Self Incrimination And Cryptographic Keys, Gregory S. Sergienko Mar 2018

Self Incrimination And Cryptographic Keys, Gregory S. Sergienko

Greg Sergienko

Modern cryptography can make it virtually impossible to decipher documents without the cryptographic key thus making the availability of the contents of those documents depend on the availability of the key. This article examines the Fourth and Fifth Amendments' protection against the compulsory production of the key and the scope of the Fifth Amendment immunity against compelled production. After analyzing these questions using prevailing Fourth and Fifth Amendment jurisprudence, I shall describe the advantages of a privacy-based approach in practical and constitutional terms. [excerpt]


Hall V. Florida: The Supreme Court’S Guidance In Implementing Atkins, James W. Ellis Feb 2018

Hall V. Florida: The Supreme Court’S Guidance In Implementing Atkins, James W. Ellis

James W. Ellis

No abstract provided.


Brief Of Amici Curiae Corporate Law Professors In Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, Harold Kent Greenfield, Daniel A. Rubens Feb 2018

Brief Of Amici Curiae Corporate Law Professors In Masterpiece Cakeshop, Ltd. V. Colorado Civil Rights Commission, Harold Kent Greenfield, Daniel A. Rubens

Kent Greenfield

Professor Greenfield was the principal author of an amicus brief on behalf of 33 corporate law professors in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, argued in December 2017. The brief argues that shareholders’ religious and political beliefs should not be projected onto a corporation for purposes of First Amendment accommodation.


Planned Parenthood V. Clark County School District: "Having Your Cake And Eating It Too" In Public School Free Speech Cases, Curtis Anderson Jan 2018

Planned Parenthood V. Clark County School District: "Having Your Cake And Eating It Too" In Public School Free Speech Cases, Curtis Anderson

Curtis Anderson

No abstract provided.


Gerrymandering And Conceit: The Supreme Court's Conflict With Itself, Mckay Cunningham Jan 2018

Gerrymandering And Conceit: The Supreme Court's Conflict With Itself, Mckay Cunningham

McKay Cunningham

In November 2016, a federal court struck as unconstitutional Wisconsin’s redistricting map under both the First Amendment and the Equal Protection Clause. The court’s decision in Whitford v. Gill marks the first time a federal court invalidated a redistricting map as unconstitutional for partisan gerrymandering in over thirty years. Wisconsin has appealed the decision to the United States Supreme Court, which recently granted review. The Supreme Court has long held that extreme partisan gerrymandering violates equal protection but has simultaneously refused to determine the merits of gerrymandering disputes, instead labeling them as non-justiciable political questions. In particular, the ...


Boy Scouts & Burning Crosses: Bringing Balance To The Court’S Lopsided Approach To The Intersection Of Equality And Speech, Russell K. Robinson Jan 2018

Boy Scouts & Burning Crosses: Bringing Balance To The Court’S Lopsided Approach To The Intersection Of Equality And Speech, Russell K. Robinson

Russell K Robinson

This article identifies a previously-ignored pattern of Supreme Court decisions that privilege one competing constitutional value, either speech or equality, and subordinate the other—with little or no reasoning explaining its choice. In adjudicating such cases, including two cases decided last term, the Supreme Court has steadfastly treated these disputes as either a basic equality case or a simple speech case. This dichotomy is a problem because once the Court places a case within either a speech or equality paradigm, it is constrained by certain rigid analytical presumptions. These presumptions threaten to stunt the analysis and to deprive the Court ...


Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke Jan 2018

Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke

Anthony O'Rourke

No abstract provided.


Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke Jan 2018

Windsor Beyond Marriage: Due Process, Equality & Undocumented Immigration, Anthony O'Rourke

Anthony O'Rourke

The Supreme Court’s recent decision in United States v. Windsor, invalidating part of the federal Defense of Marriage Act, presents a significant interpretive challenge. Early commentators have criticized the majority opinion’s lack of analytical rigor, and expressed doubt that Windsor can serve as a meaningful precedent with respect to constitutional questions outside the area of same-sex marriage. This short Article offers a more rehabilitative reading of Windsor, and shows how the decision can be used to analyze a significant constitutional question concerning the use of state criminal procedure to regulate immigration.

From Windsor’s holding, the Article distills ...


Appraising 9/11: 'Sacred' Value And Heritage In Neoliberal Times, Mateo Taussig-Rubbo Jan 2018

Appraising 9/11: 'Sacred' Value And Heritage In Neoliberal Times, Mateo Taussig-Rubbo

Mateo Taussig-Rubbo

On September 11, 2001, United Airlines Flight 93 — one of the four airplanes hijacked that day — crashed into a vacant parcel of land in rural Pennsylvania, killing all on board. For many, including family members of those killed in the attack and the Park Service that now manages the national memorial at the site, the former strip mine was transformed into ‘sacred’ ground. Unable to settle on a price with the landowner, in 2009 the government took the property through eminent domain. Focusing on the ongoing effort in United States of America v. 275.81 Acres of Land to determine ...


To Speak With One Voice: The Political Effects Of Centralizing The International Legal Defense Of The State, Guillermo J. Garcia Sanchez Jan 2018

To Speak With One Voice: The Political Effects Of Centralizing The International Legal Defense Of The State, Guillermo J. Garcia Sanchez

Guillermo J. Garcia Sanchez

When a government official defends a case before an international court, whose interest should he/she be representing? In today’s era of expanding international treaties that give standing to individual claimants, international courts review the actions of different government actors through the yardsticks of international law. The state is not unitary; alleged victims can bring international claims against various government entities including the executive, the legislature, the administrative branch, and the judiciary. Yet, the international legal defense of government actions is in the hands of the executive power. This paper focuses on the consequences of this centralization for inter-branch ...


Temporary Legislation's Finest Hour?: Towards A Proper Model Of Temporary Legislation In Israel שעתן היפה של הוראות השעה?: לקראת מודל ראוי של חקיקה זמנית בישראל, Ittai Bar-Siman-Tov Dec 2017

Temporary Legislation's Finest Hour?: Towards A Proper Model Of Temporary Legislation In Israel שעתן היפה של הוראות השעה?: לקראת מודל ראוי של חקיקה זמנית בישראל, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This article discusses a major trend in Israeli legislation in recent years: the rise of temporary legislation in Israel. The first part of the article presents a first-of-its-kind empirical study that reveals that the Knesset is increasingly using temporary legislation, which is referred to in Israel as "temporary provisions." Against this background, the main purpose of the article is normative: to propose a model for proper use of temporary legislation in Israel. After reviewing the normative debate for and against temporary legislation, the article focuses on two central questions: When is it appropriate to make use of temporary legislation; and ...


Formal And Informal Amendment Of The United States Constitution, Richard S. Kay Dec 2017

Formal And Informal Amendment Of The United States Constitution, Richard S. Kay

Richard Kay

This is the United States report submitted for the session on Formal and Informal Constitutional Amendment at the Twentieth Congress of the International Academy of Comparative Law to be held in Fukuoka, Japan in July, 2018. The report reviews the rules of Article V of the United States Constitution that sets out the rules for constitutional amendment and it provides a brief chronology of the twenty-eight amendments adopted to date. It notes a number of potential problems of interpretation associated with Article V. The report considers the widely held assumption that the United States Constitution is one of the hardest ...


Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson Dec 2017

Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

Stephen E Henderson

We finally have a federal ‘test case.’  In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age.  The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher.  This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious. 
 
As for ambition, the Court must ...


Death Penalty “Trump Effect”, Michael C. Meyer Dec 2017

Death Penalty “Trump Effect”, Michael C. Meyer

M. Chance Meyer

No abstract provided.


The Common-Law Exceptions Clause: Congressional Control Of Supreme Court Appellate Jurisdiction In Light Of British Precedent, Daniel Birk Dec 2017

The Common-Law Exceptions Clause: Congressional Control Of Supreme Court Appellate Jurisdiction In Light Of British Precedent, Daniel Birk

Daniel Birk

No abstract provided.


Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe Dec 2017

Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe

Scott W. Howe

An important question for our time concerns whether the Constitution could establish a right to engage in certain marijuana-related activities. Several states have now legalized cannabis, within strict limits, for recreational purposes, and that number will grow. Yet, some states will not promptly legalize but, instead, continue to criminalize, or only “decriminalize” in minor ways, and the federal criminalization statutes also will likely survive for a time. There currently is no recognized right under the Constitution to possess, use, cultivate or distribute cannabis for recreational purposes, even in small amounts, and traditional, single-clause arguments for such a right are weak ...


Twas The Devil: Hearing The Constitutional Infirmity Of The Modern American Death Penalty In The Bygone Songs Of Ozark Folklore, Michael C. Meyer Dec 2017

Twas The Devil: Hearing The Constitutional Infirmity Of The Modern American Death Penalty In The Bygone Songs Of Ozark Folklore, Michael C. Meyer

M. Chance Meyer

No abstract provided.


The Property Question.Pdf, William A. Edmundson Dec 2017

The Property Question.Pdf, William A. Edmundson

William A. Edmundson

for presentation at the Property and Political Economy Conference at the Smith Institute,
Chapman University, April 20-21, 2018
The “property question” is the constitutional question whether a society’s basic resources are
to be publicly or privately owned; that is, whether these basic resources are to be available to
private owners, perhaps subject to tax and regulation, or whether instead they are to be
retained in joint public ownership, and managed by democratic processes. James Madison’s
approach represents a case in which prior holdings are taken for granted, and the property
question itself is kept off of the political ...


Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez Dec 2017

Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement’s collection of information can be cause for “anxiety,” meriting constitutional protection, even if subsequent uses of the information are tightly restricted.  This change is significant.  While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing.
 
Beyond offering a careful reading of Birchfield, this Article has two goals.  First ...


The Supreme Court's Political Docket: How Ideology And The Chief Justice Control The Court's Agenda And Shape Law, Benjamin B. Johnson Dec 2017

The Supreme Court's Political Docket: How Ideology And The Chief Justice Control The Court's Agenda And Shape Law, Benjamin B. Johnson

Benjamin Johnson

The Supreme Court is unique among federal courts in that it chooses - using the writ of certiotari - which cases it will decide. Justice Brennan once noted that this discretionary power is "second to none in importance." This article examines the institutional politics behind this certiorari process. Specifically, it uses an original dataset of Justices' agenda-setting votes from 1986 to 1993 to show how Justices use the rules that govern certiorari to pursue ideological goals. In addition, and in contrast to existing qualitative accounts, the data suggest some Justices queue off of the Chief Justice's vote giving the Chief's ...


The [̶T̶A̶K̶I̶N̶G̶S̶] Keepings Clause: An Analysis Of Framing Effects From Labeling Constitutional Rights, Donald J. Kochan Dec 2017

The [̶T̶A̶K̶I̶N̶G̶S̶] Keepings Clause: An Analysis Of Framing Effects From Labeling Constitutional Rights, Donald J. Kochan

Donald J. Kochan

Did you know that the “Takings Clause” was not called the “Takings Clause” by any court before 1955? That was the first time that any court of any jurisdiction referred to the provisions regarding takings of private property in either the federal or state constitutions under the label “Taking Clause.” Did you know that justices of the U.S. Supreme Court did not use that moniker “Taking Clause” in any opinion before 1978? Given this history, the phrase “takings clause,” whether an apt descriptor or not, certainly cannot be justified as the dominant way to refer to these provisions by ...


Reasoning Through Clashes Between Religion And Equality: Case Law, Skeptics, And Social Coherence, Michael A. Helfand Dec 2017

Reasoning Through Clashes Between Religion And Equality: Case Law, Skeptics, And Social Coherence, Michael A. Helfand

Michael A Helfand

A review of Nelson Tebbe's new book, Religious Freedom in An Egalitarian Age (Harvard University Press, 2017). Forthcoming 2018.


When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand Dec 2017

When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand

Michael A Helfand

In this chapter, I explore how judges—and, more generally, U.S. courts—deal with legal disputes when they must consider not only laws and facts, but also religion, or maybe even more precisely, theology. Indeed, in a wide range of circumstances, judges are confronted with cases where the outcome in some way or another requires them to issue a decision that is predicated, to varying to degrees, on a theological question upon which there is some debate. While in American law the ostensibly simple answer to this question is simply that the Constitution prohibits courts from adjudicating religious questions ...


Implied Consent To Religious Institutions: A Primer And A Defense, Michael A. Helfand Dec 2017

Implied Consent To Religious Institutions: A Primer And A Defense, Michael A. Helfand

Michael A Helfand

One of the recent fault lines over religious liberty is the scope of protections afforded religiously motivated institutions and corporations. Courts and scholars all seem to agree that such religious institutions deserve some degree of protection. But there remains significant debate over the principles that should guide judicial decisions addressing the circumstances in which religiously motivated institutions should, and in which circumstances they should not, receive the law’s protection.

In this Article, I expound, and defend, my proposed “implied consent” framework for addressing religious institutional claims. Such a framework grounds the authority of religious institutions not in a degree ...