Digital Commons Network^™

Lawmakers As Lawbreakers, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

How would Congress act in a world without judicial review? Canlawmakers be trusted to police themselves? This Article examinesCongress’s capacity and incentives to enforce upon itself “the law ofcongressional lawmaking”—a largely overlooked body of law that iscompletely insulated from judicial enforcement. The Article exploresthe political safeguards that may motivate lawmakers to engage inself-policing and rule-following behavior. It identifies the majorpolitical safeguards that can be garnered from the relevant legal,political science, political economy, and social psychology scholarship,and evaluates each safeguard by drawing on a combination oftheoretical, empirical, and descriptive studies about Congress. TheArticle’s main argument is that the political safeguards that …

George Washington And The Executive Power, John C. Yoo

John C Yoo

This paper examines current debates over the scope of presidential power through the lens of the Washington administration. We tend to treat Washington’s decisions with an air of inevitability, but the constitutional text left more questions about the executive unanswered than answered. Washington filled these gaps with a number of foundational decisions - several on a par with those made during the writing and ratification of the Constitution itself. He was a republican before he was a Federalist, but ultimately Washington favored an energetic, independent executive, even at the cost of political harmony. He centralized decision-making in his office, so …

When Juveniles Face Questioning, Tamar R. Birckhead

Tamar R Birckhead

This op-ed argues that the age of a suspect should be considered when evaluating whether the questioning was custodial, thereby triggering the right to Miranda warnings.

Models Of Religious Freedom, Marcel Stuessi Swiss Human Rights Lawyer

Marcel Stüssi

MODELS OF RELIGIOUS FREEDOM

The Swiss, US American, and Syrian models are in this thesis illustrated by way of three representations. The Analytical Representation comprises more than statements of posi-tive law or mechanical comparison. Each chapter is introduced by thought-forms predominant in the respective legal culture. The objective of the Methodological Representation is to investigate the logic and legitimate pattern by which the Swiss and US American judiciary meth-odologically come to the conclusion that an alleged governmental inter-ference is covered under the right to religious freedom. The last dimen-sion, which is the Eclectic Representation, pursues a dual aim. Firstly, the …

Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari E. Waldman

Ari E Waldman

This article identifies logical and due process errors in cases involving HIV-related aggravated assaults, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this paper suggests that punishing this conduct through a charge of aggravated assault – which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death – is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the rule of thumb that HIV can possibly be transmitted through bodily fluids …

Justice Kennedy's Most Important Constitutional Opinions, Randall Kelso, Charles Kelso

Randall Kelso

Abstract for Kelso & Kelso, Justice Kennedy’s Most Important Constitutional Opinions In this article, we have undertaken to evaluate Justice Kennedy’s majority, concurring, and dissenting opinions in terms of their importance for society and the law. We have found no single criteria by which to assess importance. Instead, we have used a balancing system whose elements are: (1) how many people are likely to be affected over time; (2) how important are the competing interests to individuals, society, or government; (3) how much impact is the opinion likely to have on the development of constitutional law; and (4) what effect …

From A Constitutional Right To A Policy Of Exceptions: Abigail Alliance And The Future Of Access, Seema Shah, Patricia Zettler

Yale Journal of Health Policy, Law, and Ethics

Although there has been considerable attention to the plight of terminally ill patients with highly sympathetic constitutional and contractual claims that they should be permitted access to unapproved drugs, courts have been appropriately reluctant to grant such claims. Congress and administrative agencies, not courts, have the requisite institutional competence to decide complex policy issues related to science and health care such as those involved in establishing an expanded access program. Congress and FDA should allow only limited access to unapproved therapies because there are significant concerns about the safety and efficacy of unapproved drugs, and many of the proposals to …

Constitutional Law, James E. Leahy

Cal Law Trends and Developments

This was a year in which the reviewing courts in California were confronted with contemporary problems of constitutional law.

Constitutional Law, James E. Leahy

Cal Law Trends and Developments

This was an eventful year in the field of constitutional law. The court upheld the right of individuals to distribute antiwar literature within a railway station, struck down an injunction prohibiting county employees from peaceful picketing, upheld an ordinance punishing conduct which urges a riot or which urges others to commit acts of force or violence, and held the California loyalty oath unconstitutional.

On The Formation Of The American Corporate State: The Fuller Supreme Court, 1888-1910, George Skouras

George Skouras

This paper deals with the formation and legitimation of the American Corporate State by the Fuller Supreme Court. It argues that the Fuller Court was wrong to use the Due Process Clause of the 14th Amendment and natural law to support laissez-faire capitalism and the emergent corporate structure at the expense of labor and labor unions. It also argues that the corporatization of America has created a social and cultural environment that places business as the center of the American universe. This has led to a very asymmetrical relationship between corporations and citizens. It further argues that recent revisionist scholarship …

The Patient Protection And Affordable Care Act And Constitutional Challenges, Mel Cousins

Mel Cousins

Having undergone an extensive process of political discussion and debate, the Health Care Reform Act (properly the Patient Protection and Affordable Care Act) is now under intensive legal challenge with at least 20 different cases from both states and organizations and individuals currently under way. Although this litigation is at an early stage, there has already been considerable academic (and other) interest with a number of websites tracking the development of the litigation and providing links to the considerable commentary which has already been developed (albeit much of it inevitably speculative in nature). There have now been five substantive rulings …

Arizona V. Gant And Its Impact On Search And Seizure Law And Vehicle Searches, Michael Gizzi, R Curtis

Michael C Gizzi

The decision in Arizona v. Gant, handed down in April of 2009, was a surprise for law enforcement and Supreme Court observers alike. For law enforcement, it took away their unfettered discretion to search a car anytime they engaged in a routine traffic stop, which was a commonly used tool for drug interdiction and combating gangs. For Court observers, it not only was a rare decision to suppress evidence in a Fourth Amendment case but it also presented an unusual line up of justices. This study considers the implications of Gant both for law enforcement and for observers of the …

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi

Hariqbal Basi

Abstract- For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order …

Snyder V. Phelps & The Supreme Court's Speech-Tort Jurisprudence: A Prediction, Deana Ann Pollard Sacks

Deana A Pollard

In Snyder v. Phelps, members of the Westboro Baptist Church targeted a young marine’s untimely death to exemplify their hate-filled message to the world that “God Hates Fags” and retaliates against America for tolerating homosexuality by killing American soldiers. A jury awarded the marine’s father $10.9 million for invasion of privacy and emotional distress after the church members disseminated extremely hateful and personalized attacks against the fallen marine’s family. The Supreme Court is reviewing the case to determine whether civil liability based on invasive, hate-filled, injurious speech violates the First Amendment. In New York Times v. Sullivan, the Supreme Court …

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment’S Protections Against Unreasonable Searches And Seizures, Hariqbal Basi

Hariqbal Basi

Abstract- For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order …

Smt. Selvi And Ors. Versus State Of Karnataka: Case Note, Vivek Jain

vivek jain

No abstract provided.

Lessons From Hurricane Katrina: Prison Emergency Preparedness As A Constitutional Imperative, Ira P. Robbins

Ira P. Robbins

Hurricane Katrina was one of the worst natural disasters ever to strike the United States, in terms of casualties, suffering, and financial cost. Often overlooked among Katrina's victims are the 8,000 inmates who were incarcerated at Orleans Parish Prison (OPP) when Katrina struck. Despite a mandatory evacuation of New Orleans, these men and women, some of whom had been held on charges as insignificant as public intoxication, remained in the jail as the hurricane hit, and endured days of rising, toxic waters, a lack of food and drinking water, and a complete breakdown of order within OPP. When the inmates …

Iran’S “New Constitutionalism”: Constitutional Politics In Post-Revolutionary Iran, Kambiz Behi

Kambiz Behi

This Article argues that the Iranian constitutional system, although distinctive in application and in jurisprudence, is structurally and functionally similar to a set of rapidly globalizing forms of constitutional arrangement. These similarities include, in the main, legal institutions, legal thought, and methods of jurisprudence. In particular, I argue that the post-1989 constitutional reforms in Iran incorporate a globalizing constitutional mode of legal arrangement marked by proportionality analysis and judicial interventionism at the expense of representative politics. The Article also aims to make a contribution to the methodology of legal analysis by applying a Critical approach to the study of a …

No Place To Hide: First Amendment Protection For Geolocation Privacy, Theodore F. Claypoole

Theodore F Claypoole

The article analyzes the conflict between established Constitutional rights and evaporating privacy, by exploring technological changes that threaten anonymity and examining the First Amendment rights to be anonymous in association and speech.

Patriotism For Profit And Persuasion: The Trademark, Free Speech, And Governance Problems With Protection Of Governmental Marks In The United States, Malla Pollack

Malla Pollack

“Governmental marks” are words or phrases which involve the identity of a social group that is partly defined in terms of its citizenship in a government-institution. The power to name a social group (especially one from which exit is difficult) confers enormous power over the group’s members. Legally classifying such words as trademarks commodifies them, increasing the namer’s power: both by giving the word monetary value and by providing the mark-holder with the legal right to prevent others from manipulating the word’s meaning.

Destination marketing employing governmental marks has become ubiquitous. The municipal governments of both New York City and …

Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss

David Sloss

In Medellin v. Texas, the Supreme Court held that Article 94 of the United Nations Charter is non-self-executing. In so holding, the Court applied the “intent-based” doctrine of self-execution. Conventional wisdom traces that doctrine to an 1829 opinion by Chief Justice Marshall in Foster v. Neilson. The conventional wisdom is wrong. Marshall applied the “two-step” approach to self-execution, not the modern intent-based doctrine. The two-step approach distinguishes clearly between questions of international and domestic law. International law governs the content and scope of the United States’ treaty obligations. Domestic law determines which government officers are responsible for domestic treaty implementation. …

Section 7: Individual Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Completing Ely's Representation Reinforcing Theory Of Judicial Review By Accounting For The Constitutional Values Of State Citizenship, Shane Pennington

Shane Pennington

John Hart Ely famously proposed a representation reinforcing theory of judicial review. Ely said that the Constitution embodies certain procedural principles that make the ideal of American representative democracy possible. Thus, where courts find that the political process has broken down, putting that republican goal out of reach, they must step in and exercise judicial review to correct for the procedural breakdown and to reinforce the representational principles the Constitution embodies.

Whether Ely’s theory is constructed on a foundation of sand or stone depends—to a large extent—on the rigor of his conception of “American representative democracy,” which he gleans largely …

Government Under Party, Party Under Constitution: On The Construction Of Chinese State-Party Rule Of Law Constitutionalism, Larry Cata Backer

Larry Cata Backer

Since the establishment of the Soviet Union, constitutional theory has tended to look suspiciously at the constitutionalization of Marxist Leninist state apparatus under the control of a single party in power. These judgments have formed the basis of analysis of Chinese constitutionalism as well. But are these criticisms inevitably correct in general, and wholly applicable in the post 1989 Chinese context after the structural reforms of Deng Xiaoping and his successors? This paper explores those questions, developing a constitutional theory for states organized on a state-party model. The thesis of the article is this: Chinese constitutionalism presents a coherent and …

Anti-Cyber Bullying Statutes: Threat To Student Free Speech, John O. Hayward

John O. Hayward

In October 2006, thirteen-year-old Megan Meier committed suicide because of postings on MySpace, an Internet social networking site. As a result, twenty-one states have passed statutes prohibiting cyber bullying, i.e., bullying by electronic means. Many of these laws threaten student free speech. This article examines cyber bullying, the laws it has spawned, how they chill student speech, their constitutionality, and proposes a Model Anti-Cyber Bullying Law.

Tax Lawyers, Tax Defiance, And The Ethics Of Casual Conversation, Michael Hatfield

Michael Hatfield

Tax Lawyers, Tax Defiance, and the Ethics of Casual Conversation Tax lawyers routinely navigate politically-charged waters when a tax topic is dropped into conversation. Increasingly, however, tax lawyers are confronted with comments that undermine the authority of the federal tax system itself. These comments may take several forms, including arguments that the income tax is unconstitutional. Regardless of form, this rhetoric differs from legitimate criticisms of the tax system because it encourages non-compliance as either a moral right or a political good . In the current environment, the tax bar should take up the call to be public educators with …

A Modest Appeal For Decent Respect, Jessica Olive, David C. Gray

David C. Gray

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits imposing a sentence of life in prison without the possibility of release for nonhomicide crimes if the perpetrator was under the age of eighteen at the time of his offense. In so holding, Justice Kennedy cited foreign and international law to confirm the Court’s independent judgment. In his dissent, Justice Thomas recited now-familiar objections to the Court’s reliance on these sources. Those objections are grounded in his originalist jurisprudence. In this short invited essay, which expands on prior work, we argue that Justice Thomas should abandon these …

A Framework To Apply The Article Iii Case Or Controversy Requirement To Motions To Confirm Or Vacate Arbitral Awards Pursuant To The Federal Arbitration Act, Aaron Franklin

Aaron Franklin

Arbitration is an important method of dispute resolution but it requires courts that can confirm or vacate arbitral awards. When parties move to confirm or vacate these awards, federal courts largely ignore the Article III case or controversy requirement’s role as a limit on their power. Applying this requirement is not as simple as it sounds, and courts have little guidance in doing so. This Article therefore provides a framework that resolves two problems. First, motions to confirm or vacate arbitral awards always involve an underlying dispute (the dispute that necessitated arbitration) and a dispute about whether to grant the …

Déjà Vu: From Comic Books To Video Games: Legislative Reliance On “Soft Science” To Protect Against Uncertain Societal Harm Linked To Violence V. The First Amendment, Terri R. Day, Ryan C.W. Hall M.D.

Terri R. Day

This article discusses the weaknesses and limitations of social science evidence to prove that the virtual world of violent video games causes any real world harm. The Supreme Court, in its next term, will consider the constitutionality of California’s ban on the sale and rental of violent video games to minors. The controversy on violent video games is the latest legislative attempt to ban access and distribution of violent materials to children, reminiscent of the comic books debate over sixty years ago. This paper goes beyond a discussion of the First Amendment obstacles to violent video game restrictions. It focuses …

A Criminal Justice System That Works, Alan E. Garfield

Alan E Garfield

No abstract provided.