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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 from …

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 …

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

Faculty Publications

No abstract provided.

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 …

Dynamic Incorporation Of Federal Law, Jim Rossi

Vanderbilt Law School Faculty Publications

This Article provides a comprehensive analysis of state constitutional limits on legislative incorporation of dynamic federal law, as occurs when a state legislature incorporates future federal tax, environmental or health laws. Many state judicial decisions draw on the nondelegation doctrine to endorse an ex ante prohibition on state legislative incorporation of dynamic federal law. However, the analysis in this Article shows how bedrock principles related to separation of powers under state constitutions, such as protecting transparency, reinforcing accountability, and protecting against arbitrariness in lawmaking, are not consistent with this approach. Instead, this Article highlights two practices that can make dynamic …

The Early Years Of First Amendment Lochnerism, Jeremy K. Kessler

Faculty Scholarship

From Citizens United to Hobby Lobby, civil libertarian challenges to the regulation of economic activity are increasingly prevalent. Critics of this trend invoke the specter of Lochner v. New York. They suggest that the First Amendment, the Religious Freedom Restoration Act, and other legislative "conscience clauses" are being used to resurrect the economically libertarian substantive due process jurisprudence of the early twentieth century. Yet the worry that aggressive judicial enforcement of the First Amendment might erode democratic regulation of the economy and enhance the economic power of private actors has a long history. As this Article demonstrates, anxieties …

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

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

John C Yoo

No abstract provided.

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

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, and …

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 …

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 that …

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 how …

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

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

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

Communication

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 reconstruct …

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

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

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

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

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.

Evans V. Michigan: The Impact Of Judicial Error On Double Jeopardy Protection, Zi-Xiang Shen

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Evans v. Michigan, in which the Court has an opportunity to clarify the bounds of the prohibition on double jeopardy. More specifically, the Court will determine what, if any, impact judicial error has on double jeopardy protection under the Fifth Amendment.

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.

Between Seminole Rock And A Hard Place: A New Approach To Agency Deference, Kevin O. Leske

Faculty Scholarship

No abstract provided.

Criminal Wrongs And Constitutional Rights: A View From India, Shubhankar Dam

Shubhankar Dam

This essay offers an overview of how ideas of constitutionalism, rule of law and fundamental rights contributed to the development of criminal law in India. Various courts, and the Supreme Court in particular, have summoned these broad constitutional concepts to understand, interpret and develop criminal law doctrines. But they are also drawing on these concepts to increasingly address “structural” issues of the criminal justice system - the very apparatus responsible for implementing the doctrines.

What Is Intermediate Legislative Power?, Shubhankar Dam

Shubhankar Dam

The President in India’s parliamentary system is authorized to promulgate legislation under Article 123.1 While such legislation, or ‘ordinances’, enjoy the same force and effect as Acts, they are distinct in some ways. First, ordinances lack legislative deliberation: the President promulgates them ‘except when both Houses of Parliament are in session’. Secondly, it depends on the President’s satisfaction that ‘circumstances exist that render it necessary for him to take immediate action’. And they are transient: ordinances cease to operate on the expiry of six weeks from the reassembly of Parliament unless withdrawn earlier or formally enacted into law. Ordinances, then, …

Public Law And Public Resources In India, Shubhankar Dam

Shubhankar Dam

No abstract provided.