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Articles 331 - 360 of 2594
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Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke
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
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
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 …
To Speak With One Voice: The Political Effects Of Centralizing The International Legal Defense Of The State, Guillermo J. Garcia Sanchez
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 politics. It …
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
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
Formal And Informal Amendment Of The United States Constitution, Richard S. Kay
Formal And Informal Amendment Of The United States Constitution, Richard S. Kay
Richard Kay
Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson
Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson
Stephen E Henderson
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
Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe
Scott W. Howe
The Property Question.Pdf, William A. Edmundson
The Property Question.Pdf, William A. Edmundson
William A. Edmundson
Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez
Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez
Stephen E Henderson
The Supreme Court's Political Docket: How Ideology And The Chief Justice Control The Court's Agenda And Shape Law, Benjamin B. Johnson
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 [̶T̶A̶K̶I̶N̶G̶S̶] Keepings Clause: An Analysis Of Framing Effects From Labeling Constitutional Rights, Donald J. Kochan
The [̶T̶A̶K̶I̶N̶G̶S̶] Keepings Clause: An Analysis Of Framing Effects From Labeling Constitutional Rights, Donald J. Kochan
Donald J. Kochan
Reasoning Through Clashes Between Religion And Equality: Case Law, Skeptics, And Social Coherence, Michael A. Helfand
Reasoning Through Clashes Between Religion And Equality: Case Law, Skeptics, And Social Coherence, Michael A. Helfand
Michael A Helfand
When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand
When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand
Michael A Helfand
Implied Consent To Religious Institutions: A Primer And A Defense, Michael A. Helfand
Implied Consent To Religious Institutions: A Primer And A Defense, Michael A. Helfand
Michael A Helfand
Sexual Orientation And Gender Identity Discrimination, Holning Lau
Sexual Orientation And Gender Identity Discrimination, Holning Lau
Holning Lau
From Loving To Obergefell: Elevating The Significance Of Discriminatory Effects, Holning Lau
From Loving To Obergefell: Elevating The Significance Of Discriminatory Effects, Holning Lau
Holning Lau
Introduction To Constraining The Executive, Tom Campbell
Introduction To Constraining The Executive, Tom Campbell
Tom Campbell
Half-Based Discrimination Against Gays, Alan E. Garfield
Half-Based Discrimination Against Gays, Alan E. Garfield
Alan E Garfield
No abstract provided.
Judicial Review And Non-Enforcement At The Founding, Matthew Steilen
Judicial Review And Non-Enforcement At The Founding, Matthew Steilen
Matthew Steilen
This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this …
The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke
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 …
Ideal Theory And The Limits Of Historical Narrative, Anthony O'Rourke
Ideal Theory And The Limits Of Historical Narrative, Anthony O'Rourke
Anthony O'Rourke
Some intellectual concepts that once played a central role in America’s constitutional history are, for both better and worse, no longer part of our political language.[1] These concepts may be so alien to us that they would remain invisible without carefully reexamining the past in order to challenge the received narratives of America’s constitutional development.[2] Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas in our …
The Speedy Trial Right And National Security Detentions: Critical Comments On United States V. Ghailani, Anthony O'Rourke
The Speedy Trial Right And National Security Detentions: Critical Comments On United States V. Ghailani, Anthony O'Rourke
Anthony O'Rourke
No abstract provided.
Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke
Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke
Anthony O'Rourke
Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. …
Structural Overdelegation In Criminal Procedure, Anthony O'Rourke
Structural Overdelegation In Criminal Procedure, Anthony O'Rourke
Anthony O'Rourke
In function, if not in form, criminal procedure is a type of delegation. It requires courts to select constitutional objectives, and to decide how much discretionary authority to allocate to law enforcement officials in order to implement those objectives. By recognizing this process for what it is, this Article identifies a previously unseen phenomenon that inheres in the structure of criminal procedure decision-making. Criminal procedure’s decision-making structure, this Article argues, pressures the Supreme Court to delegate more discretionary authority to law enforcement officials than the Court’s constitutional objectives can justify. By definition, this systematic “overdelegation” does not result from the …
The "Public Uses" Of Eminent Domain: History And Policy, Errol E. Meidinger
The "Public Uses" Of Eminent Domain: History And Policy, Errol E. Meidinger
Errol Meidinger
This paper examines the effects and implications of the ‘public use’ requirement for the exercise of eminent domain in the United States. It is part of an ongoing inquiry the consequences of eminent domain in the United States. The first part examines the history of the public use requirement, both how the doctrine has been articulated and logically extended and what purposes have been accomplished under it. The second part of the paper is an analytic critique of the public use doctrine. After considering whether any principled standard can be developed to delimit the proper uses of eminent domain, it …
Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey
Facing The Ghost Of Cruikshank In Constitutional Law, Martha T. Mccluskey
Martha T. McCluskey
For a symposium on Teaching Ferguson, this essay considers how the standard introductory constitutional law course evades the history of legal struggle against institutionalized anti-black violence. The traditional course emphasizes the drama of anti-majoritarian judicial expansion of substantive rights. Looming over the doctrines of equal protection and due process, the ghost of Lochner warns of dangers of judicial leadership in substantive constitutional change. This standard narrative tends to lower expectations for constitutional justice, emphasizing the virtues of judicial modesty and formalism. By supplementing the ghost of Lochner with the ghost of comparably infamous and influential case, United States v. Cruikshank …
Autonomy And Isomorphism: The Unfulfilled Promise Of Structural Autonomy In American State Constitutions, James A. Gardner
Autonomy And Isomorphism: The Unfulfilled Promise Of Structural Autonomy In American State Constitutions, James A. Gardner
James Gardner
In the American system of federalism, states have almost complete freedom to adopt institutions and practices of internal self-governance that they find best-suited to the needs and preferences of their citizens. Nevertheless, states have not availed themselves of these opportunities: the structural provisions of state constitutions tend to converge strongly with one another and with the U.S. Constitution. This paper examines two important periods of such convergence: the period from 1776 through the first few decades of the nineteenth century, when states were inventing institutions of democratic governance and representation; and the period following the Supreme Court’s one person, one …
A Retrospective On Lucas V. South Carolina Coastal Council: Public Policy Implications For The 21st Century, Kim Diana Connolly
A Retrospective On Lucas V. South Carolina Coastal Council: Public Policy Implications For The 21st Century, Kim Diana Connolly
Kim Diana Connolly
No abstract provided.