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Enforcing Principled Constitutional Limits On Federal Power: A Neo-Federalist Refinement Of Justice Cardozo's Jurisprudence, Robert J. Pushaw Jr. Feb 2019

Enforcing Principled Constitutional Limits On Federal Power: A Neo-Federalist Refinement Of Justice Cardozo's Jurisprudence, Robert J. Pushaw Jr.

William & Mary Law Review

Since the New Deal of the mid-1930s, Congress has asserted virtually absolute power to (1) “regulate Commerce ... among the States,” (2) tax and spend for the “general Welfare,” and (3) delegate “legislative Power[ ]” to the executive branch. From 1937 until 1994, the Supreme Court rejected every claim that such statutes had exceeded Congress’s Article I authority and usurped the states’ reserved powers under the Tenth Amendment. Over the past quarter century, conservative Justices have tried, and failed, to develop principled constitutional limits on the federal government while keeping the modern administrative and social welfare state largely intact.

The conservatives ...


All That Is Liquidated Melts Into Air: Five Meta-Interpretive Issues, D. A. Jeremy Telman Dec 2018

All That Is Liquidated Melts Into Air: Five Meta-Interpretive Issues, D. A. Jeremy Telman

D. A. Jeremy Telman


The promise of originalism is that it helps us to fix constitutional meaning and constrain constitutional decision-makers.  There are significant constitutional questions that originalism can help resolve, at least to the extent that constitutional decision-makers buy in to originalism. However, even assuming that originalism is normatively desirable, there are certain issues that are fundamental to constitutional decision-making but that originalism cannot help us resolve. The Framers were hopelessly divided on them, and they may not be susceptible to Madisonian “liquidation.”  That is, at least some of these issues still generate live controversies even though they some of them seem to ...


Liberty And Separation Of Powers In Judicial Review Of Privatized Governance Regimes, Jeffrey Kleeger Sep 2018

Liberty And Separation Of Powers In Judicial Review Of Privatized Governance Regimes, Jeffrey Kleeger

Journal of the National Association of Administrative Law Judiciary

This article examines the power difference between homeowner association (HOA) owners, members, and their governing boards. Administrative adjudication can remedy the imbalance to better secure member rights. What is necessary is a heightened standard of judicial review and a requirement to produce a comprehensive record for review. Boards enjoy an advantage in disputes with members—courts uphold board actions unless they are arbitrary and capricious. Boards also possess largely unrestricted state-delegated authority to make and enforce rules, as well as decide penalties for infractions. These clearly governmental functions are not restrained by the state action doctrine. Tools of administrative adjudication ...


Congressional Standing To Sue: The Role Of Courts And Congress In U.S. Constitutional Democracy, Vicki C. Jackson Jul 2018

Congressional Standing To Sue: The Role Of Courts And Congress In U.S. Constitutional Democracy, Vicki C. Jackson

Indiana Law Journal

In recent years, legislatures and their members have increasingly asserted standing to sue other branches of government, in controversies involving state legislators or legislatures as party litigants and in controversies involving members of or parts of the U.S. Congress. These cases present challenging questions for the federal Article III courts, whose jurisdiction has been interpreted to be bounded by “justiciability” doctrines, including that the party invoking federal court jurisdiction must have standing to do so. This Essay will focus on congressional standing, discussing case law involving claims by state legislatures or legislators to the extent they are relevant.1 ...


The Supreme Court Before John Marshall, Scott Douglas Gerber May 2018

The Supreme Court Before John Marshall, Scott Douglas Gerber

University of St. Thomas Law Journal

No abstract provided.


Curbing Remedies For Official Wrongs: The Need For Bivens Suits In National Security Cases, Peter Margulies Jan 2018

Curbing Remedies For Official Wrongs: The Need For Bivens Suits In National Security Cases, Peter Margulies

Law Faculty Scholarship

No abstract provided.


Substitute And Complement Theories Of Judicial Review, David E. Landau Oct 2017

Substitute And Complement Theories Of Judicial Review, David E. Landau

Indiana Law Journal

Constitutional theory has hypothesized two distinct and contradictory ways in which judicial review may interact with external political and social support. One line of scholarship has argued that judicial review and external support are substitutes. Thus, “political safeguard” theorists of American federalism and the separation of powers argue that these constitutional values are enforced through the political branches, making judicial review unnecessary. However, a separate line of work, mostly composed of social scientists examining rights issues, argues that the relationship between courts and outside support is complementary—judges are unlikely to succeed in their projects unless they have sufficient assistance ...


Constitutional Economic Justice: Structural Power For "We The People", Martha T. Mccluskey Jan 2017

Constitutional Economic Justice: Structural Power For "We The People", Martha T. Mccluskey

Journal Articles

Toward that goal, this essay proposes a structural principle of collective economic power for “we the people.” This principle is both consistent with longstanding Constitutional ideals and tailored to the current challenges of neoliberal ideology and policy. It develops two premises: first, it rejects the neoliberal economic ideology that defines legitimate power and freedom as individualized “choice” constrained by an existing political economy. Instead, this proposed principle recognizes that meaningful political economic freedom and power fundamentally consist of access to collective organizations with potential to create a “more perfect union” with better and less constrained options. Second, the post-Lochner principle ...


The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor Jan 2017

The Genius Of Hamilton And The Birth Of The Modern Theory Of The Judiciary, William M. Treanor

Georgetown Law Faculty Publications and Other Works

In late May 1788, with the essays of the Federalist on the Congress (Article I) and the Executive (Article II) completed, Alexander Hamilton turned, finally, to Article III and the judiciary. The Federalist’s essays 78 to 83 – the essays on the judiciary - had limited effect on ratification. No newspaper outside New York reprinted them, and they appeared very late in the ratification process – after eight states had ratified. But, if these essays had little immediate impact – essentially limited to the ratification debates in New York and, perhaps, Virginia – they were a stunning intellectual achievement. Modern scholars have made Madison ...


New Judicial Review In Old Europe, Alyssa S. King Sep 2016

New Judicial Review In Old Europe, Alyssa S. King

Georgia Journal of International & Comparative Law

No abstract provided.


Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove Jul 2016

Tiers Of Scrutiny In A Hierarchical Judiciary, Tara Leigh Grove

Faculty Publications

No abstract provided.


Premodern Constitutionalism, Martin H. Redish, Matthew Heins Apr 2016

Premodern Constitutionalism, Martin H. Redish, Matthew Heins

William & Mary Law Review

The traditional concept of American constitutionalism has long been a basic assumption not subject to tremendous examination. For generations, scholars have understood our Constitution to be the byproduct of a revolutionary war fought for representation and a foundinggeneration concernedwith preventingtyranny in any form. The traditional understandingof American constitutionalism thus consists of two elements: the underlyingprinciple of skeptical optimism, which can be found in the historical context within which the Framers gathered to draft the Constitution, and the political apparatus effectuating that idea— countermajoritarian constraint set against majoritarian power— which reveals itself through reverse engineeringfrom the structural Constitution.

Over the last ...


Eureka Cnty. V. Off. Of State Engr. Of State Of Nev., Div. Of Water Resources, 131 Nev. Adv. Op. 84 (Oct. 29, 2015), Chelsea Finnegan Oct 2015

Eureka Cnty. V. Off. Of State Engr. Of State Of Nev., Div. Of Water Resources, 131 Nev. Adv. Op. 84 (Oct. 29, 2015), Chelsea Finnegan

Nevada Supreme Court Summaries

For the State Engineer to grant water rights applications, there must be evidence to support the decision and the new rights must not substantially conflict with existing rights. On appeal from the District Court, the Court found no evidence to support the granted application, and held the use of Respondent’s rights would severely impact the water table. The Court reversed and remanded the case for proceedings consistent with the opinion.


The Judicial Safeguards Of Federalism, John C. Yoo May 2015

The Judicial Safeguards Of Federalism, John C. Yoo

John C Yoo

No abstract provided.


Who's Afraid Of The Eleventh Amendment - The Limited Impact Of The Court's Sovereign Immunity Rulings, Jesse H. Choper, John C. Yoo May 2015

Who's Afraid Of The Eleventh Amendment - The Limited Impact Of The Court's Sovereign Immunity Rulings, Jesse H. Choper, John C. Yoo

John C Yoo

No abstract provided.


Eaja Fees For Reasons-And-Bases Remands: The Perspective Of A Veterans' Lawyer, David E. Boelzner Apr 2015

Eaja Fees For Reasons-And-Bases Remands: The Perspective Of A Veterans' Lawyer, David E. Boelzner

Faculty Publications

No abstract provided.


Up In The Air: Department Of Homeland Security V. Maclean And The Whistleblower Protection Act, Mike Brett Feb 2015

Up In The Air: Department Of Homeland Security V. Maclean And The Whistleblower Protection Act, Mike Brett

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary analyzes the Supreme Court case Department of Homeland Security v. MacLean deciding whether an employee of the Department of Homeland Security comes under the protection of the Whistleblower Protection Act when they release potentially sensitive information to the media. Generally, the Act protects whistleblowers unless the information they release is not allowed "as specified by law." The particular statutory question in this case is whether the "law" prohibiting release must be contained in a statute, or can include the Department of Homeland Security's own promulgated regulation. The Author profiles the background of the case, applicable legal precedent ...


Zivotofsky V. Kerry: Of Passports, Politics, And Foreign Policy Powers, Cara J. Grand Feb 2015

Zivotofsky V. Kerry: Of Passports, Politics, And Foreign Policy Powers, Cara J. Grand

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary profiles the upcoming Supreme Court decision in Zivotofsky v. Kerry, which will decide, for the first time in United States history, the dividing line between legislative and executive authority to recognize foreign nations. Though it emanates from a seemingly-benign passport disagreement about a place-of-birth designation, this case will address an unprecedented and extremely controversial issue about separation of powers that has somehow evaded a Supreme Court decision. The Author profiles the case history and applicable legal precedent and analyzes the arguments for both sides before recommending that the Court should not find the President's power in this ...


Liberty, Security, And Judicial Review In The War On Terror: An Analysis Of Supreme Court Approaches To Deference In A Post-9/11 Context, Jacob Oppler Jan 2015

Liberty, Security, And Judicial Review In The War On Terror: An Analysis Of Supreme Court Approaches To Deference In A Post-9/11 Context, Jacob Oppler

Senior Independent Study Theses

In times of war, the government acts to suppress threats to national security, often curtailing or restricting American civil liberties. Over the course of American history, the Supreme Court has reviewed this legal conflict between civil liberties and national security policies during war. Scholars generally observe the Court’s judicial review as deferential to the government. The War on Terror presents new and different challenges to American civil liberties. While this legal conflict has emerged again under the conditions of a war against terrorism, the war itself is markedly unlike past wars in American history. This research seeks to explain ...


Cases Of Conscience: The Supreme Court And Conscientious Objectors To Military Service During The Post World War Ii Era, Robert S. Rutherfurd Jan 2015

Cases Of Conscience: The Supreme Court And Conscientious Objectors To Military Service During The Post World War Ii Era, Robert S. Rutherfurd

Graduate Student Theses, Dissertations, & Professional Papers

This thesis examines the history of American conscientious objectors to military service during the aftermath of World War II. It describes why conscientious objectors were viewed with distrust and suspicion for their refusal to bear arms in defense of the nation and considers how groups such as the American Legion and the Veterans of Foreign Wars attempted to prevent COs from enjoying key benefits of U.S. citizenship by demanding that conscientious objectors be excluded from public employment and denied most forms of government assistance. This thesis focuses on decisions of the United States Supreme Court following World War II ...


Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush Oct 2014

Whither Sexual Orientation Analysis?: The Proper Methodology When Due Process And Equal Protection Intersect, Sharon E. Rush

Sharon E. Rush

This Article suggests that there is Proper Methodology that courts apply when reviewing cases at the intersection of due process and equal protection. Briefly, courts operate under a rule that heightened review applies if either a fundamental right or a suspect class is involved in a case, and that rational basis review applies if neither is involved (the "Rule"). Two primary exceptions to the Rule exist, and this Article identifies them as the "Logical" and "Ill Motives" Exceptions. The Logical Exception applies when a court need not apply heightened review because a law fails rational basis review. The Ill Motives ...


Democracy, Judicial Review And The Rule Of Law In The Age Of Terrorism: The Experience Of Israel - A Comparative Perspective, Ralph Ruebner Sep 2014

Democracy, Judicial Review And The Rule Of Law In The Age Of Terrorism: The Experience Of Israel - A Comparative Perspective, Ralph Ruebner

Georgia Journal of International & Comparative Law

No abstract provided.


Kaley V. United States: The Right To Counsel Of Choice Caught In The Wide Net Of Asset Forfeiture, Adam J. Fine Jan 2014

Kaley V. United States: The Right To Counsel Of Choice Caught In The Wide Net Of Asset Forfeiture, Adam J. Fine

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Kaley v. United States, in which the Court may decide whether a defendant who needs potentially forfeitable assets to retain counsel of choice is entitled, under the Due Process Clause, to a hearing to challenge the grand jury's finding of probable cause.


The Child Independence Is Born: James Otis And Writs Of Assistance, James M. Farrell Jan 2014

The Child Independence Is Born: James Otis And Writs Of Assistance, James M. Farrell

Communication Scholarship

This chapter is a reexamination of the Writs of Assistance speech by James Otis. In particular, it is a reconsideration of the evidence upon which rests the historical reputation of Otis’s address. Are the claims by historians who credit Otis with sparking the Revolutionary movement in colonial America warranted or not? That reassessment begins with a detailed review of the nature and function of writs of assistance within the political, legal, and economic environment of colonial Massachusetts. It then turns to an analysis of the legal dispute over writs of assistance in the 1761 trial. From there we will ...


Who's Afraid Of The Eleventh Amendment - The Limited Impact Of The Court's Sovereign Immunity Rulings, Jesse H. Choper, John C. Yoo Aug 2013

Who's Afraid Of The Eleventh Amendment - The Limited Impact Of The Court's Sovereign Immunity Rulings, Jesse H. Choper, John C. Yoo

Jesse H Choper

No abstract provided.


The Voting Rights Act's Fight To Stay Rational: Shelby County V. Holder, Sudeep Paul Jun 2013

The Voting Rights Act's Fight To Stay Rational: Shelby County V. Holder, Sudeep Paul

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Shelby County v. Holder, in which the Court may decide whether Congress's 2006 reauthorization of Section 5 and Section 4(b) of the Voting Rights Act was constitutional.


In All Fairness: Us Airways V. Mccutchen And The Use Of Equitable Defenses In Erisa Reimbursement Claims, Ravi Patel Jan 2013

In All Fairness: Us Airways V. Mccutchen And The Use Of Equitable Defenses In Erisa Reimbursement Claims, Ravi Patel

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, US Airways v. McCutchen, in which the Court will decide whether courts are permitted to use equitable principles to rewrite contractual language for benefit plans under ERISA. In so doing, the Court must decide whether to give effect to the Third Circuit's holding, that ERISA does permit this use of equitable principles, which runs contrary to the majority of circuits.


The Prying Nose: Florida V. Jardines And Warrantless Dog-Sniff Tests On Private Property, Ali Mirsaidi Jan 2013

The Prying Nose: Florida V. Jardines And Warrantless Dog-Sniff Tests On Private Property, Ali Mirsaidi

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Florida v. Jardines, in which the Court will decide whether a dog-sniff test at the front door of a home constitutes a Fourth Amendment search. The case asks the Court to resolve its prior decisions holding that dog-sniff tests are minimally intrusive when conducted in public with its decisions affording higher protections for searches of private residences.


Clapper V. Amnesty International: Who Has Standing To Challenge Government Surveillance?, Elisa Sielski Jan 2013

Clapper V. Amnesty International: Who Has Standing To Challenge Government Surveillance?, Elisa Sielski

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Clapper v. Amnesty International, in which the Court will examine whether plaintiffs have standing to challenge possible government surveillance under the Foreign Intelligence Surveillance Act. In so doing, the Court will have to revisit the standards for standing in surveillance cases in light of Laird v. Tatum and a circuit split stemming from that case.


Take The Money And Run: Detainment Incident To A Search Warrant In Bailey V. United States, Alexander Hall Jan 2013

Take The Money And Run: Detainment Incident To A Search Warrant In Bailey V. United States, Alexander Hall

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Bailey v. United States, in which the Court will examine the scope of permissible non-arrest seizures in the context of a detainment incident to a search warrant. The case offers the Court an opportunity to clarify its holding in Michigan v. Summers--that occupants of premises being searched pursuant to a valid warrant may be detained during the search--by determining whether such a detainment is permissible when the occupants have left the premises.