Digital Commons Network^™

The Death Penalty And The Fifth Amendment, Joseph Blocher

Northwestern University Law Review

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to …

Newsroom: Rwu's News First Amendment Blog 12-07-2016, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Rethinking Article 422: A Retrospective On Ecuador's 2008 Constitutional Isds Recalibration, Alexander B. Avtgis

Indiana Journal of Constitutional Design

Is Ecuador’s adoption of Article 422 in the 2008 Constitution properly viewed as a “re-statification”1 of Investor State Dispute Settlement (ISDS)? And, since its implementation, has the constitutional article been effective in institutionally insulating Ecuador from the jurisdictional reach of international ISDS? This paper answers both questions in the negative—but qualifies such an outlook by balancing the drawbacks of Article 422 against its successes. Article 422’s provisions, strident in its attempt to create an alternative development vision, did not achieve all that the Constitution’s drafters had hoped. Nevertheless, in its limited effect of detaching Ecuador from certain ISDS fora, it …

Ulysses: A Mighty Hero In The Fight For Freedom Of Expression, Marc J. Randazza

University of Massachusetts Law Review

James Joyce’s Ulysses was a revolutionary novel, and this much is common knowledge. What is not common knowledge is how useful Ulysses was in pushing the boundaries of freedom of expression. This masterpiece of literature opened the door for modern American free speech jurisprudence, but in recent years has become more of an object of judicial scorn. This Article seeks to educate legal scholars as to the importance of the novel, and attempts to reverse the anti-intellectual spirit that runs through modern American jurisprudence, where the novel is now more used as an object of mockery, or as a negative …

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

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

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 nevertheless remained …

War By Legislation: The Constitutionality Of Congressional Regulation Of Detentions In Armed Conflicts, Christopher M. Ford

Northwestern University Law Review

In this essay, Ford considers provisions of the 2016 National Defense Authorization Act (NDAA) which place restrictions on the disposition of detainees held in Guantánamo Bay. These provisions raise substantial separation of powers issues regarding the ability of Congress to restrict detention operations of the Executive. These restrictions, and similar restrictions found in earlier NDAAs, specifically implicate the Executive's powers in foreign affairs and as Commander in Chief. Ford concludes that, with the exception of a similar provision found in the 2013 NDAA, the restrictions are constitutional.

Constitutional Conundrums, Alan E. Garfield

Alan E Garfield

No abstract provided.

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 larger debates about …

A Guide To The Singapore Constitution (2nd Ed.), Smu Apolitical

Student Publications

This primer is an introductory guide to the Constitution, its history, the legal concepts associated with it (such as the separation of powers and constitutional supremacy) and so much more. With illustrations and diagrams to aid in understanding, it is designed for readers of all ages and from all walks of life. The Constitution is the supreme law of the land. It provides for, among other things, the 3 branches of the Singapore government (namely, the executive, the legislature and the judiciary) and secures our fundamental liberties. The provisions in the Constitution are applied in our daily lives, both directly …

A Plea For Constitutional Balance, Stephen M. Feldman

Stephen M. Feldman

The Political Branches And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia

Anthony J. Bellia

In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an important, …

The Voice Of The People: Public Participation In The African Continent, Rafael Macia

Indiana Journal of Constitutional Design

Public participation is becoming a more common characteristic of constitutional drafting processes around the world, and Africa has not been an exception in this regard. This paper seeks to survey several of the public participation processes undertaken in a number of African nations, in order to examine the methods followed and the effects produced by such processes. For that purpose, I have analyzed the constitutional drafting efforts in South Africa, Uganda, Eritrea, Zimbabwe, Rwanda, Kenya, and Egypt. These processes all show different circumstances and approaches, with variations in terms of their top-down or bottom-up nature, and, more importantly, in terms …

Pathways To Leadership: Four Women's Journeys To The Peace Negotiation Table In The Fight For Democracy In Burma, Brittany Shelmon

Indiana Journal of Constitutional Design

No abstract provided.

U.S. State Building And The Second Amendment, Darren Dale Gil

Dissertations

This dissertation used a comparative case study strategy employing a mixed methods thematic content analysis approach¹ to explore U.S. government support for Second Amendment freedoms as compared to other freedoms in the U.S. Bill of Rights in American-led state-building projects in Cuba (1898-1901), Germany (1945-1949), and Iraq (2003-2005). The dissertation tested for Republican and Democratic political party support regarding Second Amendment freedoms in U.S. state-building projects. Findings from the three case studies showed that the American government did not support individual arms rights in its state-building efforts as it did with the other nine Bill of Rights freedoms. Findings …

A Sleeping Giant: §2 Of The Kentucky Constitution, Allison I. Connelly

Allison Connelly

In this newsletter article, Professor Connelly discusses Section 2 of the Kentucky Constitution which prohibits the exercise of arbitrary official power.

Trending @ Rwu Law: Dean Yelnosky's Post: What The Tragedy In Orlando Means For Rwu Law 6/17/2016, Michael Yelnosky

Law School Blogs

No abstract provided.

The Vox Populi Of Copyright: A Tribute To Lyman Ray Patterson, Kenneth D. Crews

Journal of Intellectual Property Law

No abstract provided.

Truth Or Doubt? An Empirical Test Of Criminal Jury Instructions, Michael D. Cicchini, Lawrence T. White

University of Richmond Law Review

Part I of this article briefly discusses the concept of proof beyond a reasonable doubt, along with its importance to individuals and society generally. Part II surveys some of the truth-related language used in multiple state and federal jurisdictions. It also examines the constitutional problems created by this language and discusses courts' inadequate responses to these problems.

Part III explains our controlled experiment, including our hypotheses, study design, and empirical findings. Part IV discusses these findings and their significance and argues that courts should immediately terminate their use of truth-based jury instructions so that our constitutional guarantees are fulfilled. Finally, …

The Constitutional Limits Of Client-Centered Decision Making, Todd A. Berger

University of Richmond Law Review

No abstract provided.

Newsroom: Goldstein On Fossil Fuel Fraud Liability 04-12-2016, Edward Fitzpatrick, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

13th Annual Diversity Symposium Dinner 04-07-2016, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Federalism Cases, Leon Friedman

Touro Law Review

No abstract provided.

Reconceptualizing The Eighth Amendment: Slaves, Prisoners, And Cruel And Unusual Punishment, Alexander A. Reinert

Articles

The meaning of the Eighth Amendment’s Cruel and Unusual Punishment Clause has long been hotly contested. For scholars and jurists who look to original meaning or intent, there is little direct contemporaneous evidence on which to rest any conclusion. For those who adopt a dynamic interpretive framework, the Supreme Court’s “evolving standards of decency” paradigm has surface appeal, but deep conflicts have arisen in application. This Article offers a contextual account of the Eighth Amendment’s meaning that addresses both of these interpretive frames by situating the Amendment in eighteenth and nineteenth-century legal standards governing relationships of subordination.

In particular, I …

The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi

Northwestern University Law Review

Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines—the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly …

Newsroom: A True Original(Ist) 02-15-2016, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

The Constitution Of Cádiz In Florida, M C. Mirow

M. C. Mirow

The article explores the vibrant constitutional community that existed in St. Augustine and the province of East Florida in the final decade of Spanish control of the area. Based on relatively unexplored primary sources, it reveals a great deal of unknown information about the importance of the Constitution in Florida immediately before the territory was transferred to the United States. The article provides full description of the Constitution's promulgation in 1812 and a second promulgation of the Constitution in 1820 (something unknown in the general literature). It also addresses the construction of the St. Augustine monument to the Constitution erected …

Pre-Constitutional Law And Constitutions: Spanish Colonial Law And The Constitution Of Cádiz, M C. Mirow

M. C. Mirow

This article contributes to the intellectual and legal history of this constitutional document. It also provides a close study of how pre-constitutional laws are employed in writing constitutions. It examines the way Spanish colonial law, known as "derecho indiano" in Spanish, was used in the process of drafting the Constitution and particularly the way these constitutional activities and provisions related to the Americas. The article asserts that this pre-constitutional law was used in three distinct ways: as general knowledge related to the Americas and their institutions; as a source for providing a particular answer to a specific legal question; and …

The New Elections Clause, Michael T. Morley

Scholarly Publications

No abstract provided.