Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Constitutional Law

Institution
Keyword
Publication Year
Publication
Publication Type
File Type

Articles 1 - 30 of 22102

Full-Text Articles in Law

All Things To All People, Part One, Peter Aschenbrenner Jan 2105

All Things To All People, Part One, Peter Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic has identified the fundamental predicate of Government I, which operated, more or less, under Constitution I, the Constutiton of the year One, as a disposable government. See The Standard Model at War, 17 OCL 350. if government asserts, affirmatively, that it is disposable, isn’t it also asserting that it can replicate its systems (= structures political society) at will? OCL builds on its assertion of political society as a three-goaled contrivance. See Why Do Political Societies Exist? 2 OCL 883. Isn’t such a government asserting the primacy of the needs of civil society? By offering to ...


Does The Second Amendment Protect Firearms Commerce?, David Kopel Apr 2104

Does The Second Amendment Protect Firearms Commerce?, David Kopel

David B Kopel

The Second Amendment protects the operation of businesses which provide Second Amendment services, including gun stores. Although lower federal courts have split on the issue, the right of firearms commerce is demonstrated by the original history of the Second Amendment, confirmed by the Supreme Court in District of Columbia v. Heller, and consistent with the Court's precedents on other individual rights.


How Do We Know When Political Societies Change?, Peter Aschenbrenner Jan 2104

How Do We Know When Political Societies Change?, Peter Aschenbrenner

Peter J. Aschenbrenner

Predicates, features, attributes and properties of a system are liable to change. How does the change get marked down? For this purpose what facet of a system should command our attention? Any system worth the name, Our Constitutional Logic argues, is aware of its own standing in civil society. OCL considers the issues raised.


Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati Jan 2018

Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati

Faculty Scholarship

On June 11, 2017, Puerto Rico held a referendum on its legal status. Although turnout was low, 97% of ballots favored statehood, rather than independence or the status quo. The federal government, however, has financial and political reasons to resist this preference: Puerto Rico would bring with it a massive, unpayable debt, and the potential to swing the current balance of power in Congress. That then raises the two questions of whether Congress could decide expel Puerto Rico (give it “independence”) or is legally required to give it statehood (“accession”).

The answers are not obvious. International law, we argue, suggests ...


Get Off My Porch: United States V. Carloss And The Escalating Dangers Of “Knock And Talks”, Skyler K. Sikes Jan 2018

Get Off My Porch: United States V. Carloss And The Escalating Dangers Of “Knock And Talks”, Skyler K. Sikes

Oklahoma Law Review

No abstract provided.


United States V. Carloss: Should The Police Act Like Good Neighbors?, Cole Mclanahan Jan 2018

United States V. Carloss: Should The Police Act Like Good Neighbors?, Cole Mclanahan

Oklahoma Law Review

No abstract provided.


Constitutions And Bills Of Rights: Invigorating Or Placating Democracy?, Brian Christopher Jones Dec 2017

Constitutions And Bills Of Rights: Invigorating Or Placating Democracy?, Brian Christopher Jones

Brian Christopher Jones

Champions of constitutions and bills of rights regularly portray them as possessing significant, sometimes mysterious, powers. One characterisation is that newly implemented constitutions may invigorate a democracy, particularly at the ballot box. This article challenges that notion. In particular, it examines a number of jurisdictions that have recently implemented constitutions and bill of rights, finding that in many of them, voter turnout decreased after passage, sometimes significantly. As the argument for a codified British constitution endures, the findings of this paper provide provisional evidence that those advocating for such a device should be wary of touting its potentially invigorating democratic ...


The Jewish Family – Between Family Law And Contract Law, Yehezkel Margalit Dec 2017

The Jewish Family – Between Family Law And Contract Law, Yehezkel Margalit

Hezi Margalit

Traditional Jewish family law has persevered for hundreds of years and rules covering marriage, the raising of children, and divorce are well established; yet pressures from modern society are causing long held views to be re-examined. The Jewish Family: Between Family Law and Contract Law examines the tenets of Jewish family law in the light of new attitudes concerning the role of women, assisted reproduction technologies, and prenuptial agreements. It explores, through interdisciplinary research combining the legal aspects of family law and contract law, how the Jewish family can cope with both old and modern obstacles and challenges. Focusing on ...


Secession And Federalism In The United States: Tools For Managing Regional Conflict In A Pluralist Society, Erin Ryan Nov 2017

Secession And Federalism In The United States: Tools For Managing Regional Conflict In A Pluralist Society, Erin Ryan

Erin Ryan

This Article explores the use of federalism and secession as tools for managing regional conflict within pluralist governance, drawing on underappreciated features of the American experience.  Epic struggles to balance autonomy with interdependence have taken on new urgency as dissatisfaction with globalization inspires political cataclysms unimaginable just a few years ago—including ‘Brexit’ from the European Union and American threats to leave NATO.  The same impetus toward devolution also surfaces in heated intra-national conflicts.  Recent calls for secession in Scotland, Catalonia, Québec, the Sudan, and even the United States reveal multiple political contexts in which questions have been raised about ...


Unmasking The Teen Cyberbully: A First Amendment-Compliant Approach To Protecting Child Victims Of Anonymous, School-Related Internet Harassment, Benjamin A. Holden Nov 2017

Unmasking The Teen Cyberbully: A First Amendment-Compliant Approach To Protecting Child Victims Of Anonymous, School-Related Internet Harassment, Benjamin A. Holden

Akron Law Review

In proposing a new rule under the First Amendment to adjudicate anonymous Cyberbullying cases, this Article first reviews and summarizes the First Amendment precedents governing regulation of speech by minors and student speech in the school environment. Second, it reviews and discusses the prevalence of minors’ online harassment or Cyberbullying, including pre-litigation disputes reported in the press. Third, it reviews and summarizes the First Amendment precedents governing the “unmasking” of anonymous speakers. Finally, the Cyberbully Unmasking Test is proposed and applied.


Church Liability For Clergy Sexual Abuse: Have Time And Events Overthrown Swanson V. Roman Catholic Bishop Of Portland?, Sonia J. Buck Nov 2017

Church Liability For Clergy Sexual Abuse: Have Time And Events Overthrown Swanson V. Roman Catholic Bishop Of Portland?, Sonia J. Buck

Maine Law Review

In Swanson v. Roman Catholic Bishop of Portland, Albert and Ruth Swanson sued their former pastor, Father Maurice Morin, after the couple's marriage counseling sessions with Father Morin led to a sexual relationship between Father Morin and Mrs. Swanson. The Swansons brought claims against Father Morin for negligent and intentional infliction of emotional distress and negligent pastoral counseling. They also sued the Roman Catholic Bishop of Portland, a corporation, and Bishop Joseph Gerry in his personal capacity (collectively referred to as the “Church”) for negligence in selecting, training, and supervising Father Morin. The Maine Superior Court dismissed the claims ...


Mediated Images Of Violence And The First Amendment: From Video Games To The Evening News, Clay Calvert, Robert D. Richards Nov 2017

Mediated Images Of Violence And The First Amendment: From Video Games To The Evening News, Clay Calvert, Robert D. Richards

Maine Law Review

In July 2004, a federal district court struck down, on First Amendment grounds, a Washington state law that restricted minors' access to video games containing “realistic or photographic-like depictions of aggressive conflict in which the player kills, injures, or otherwise causes physical harm to a human form in the game who is depicted, by dress or other recognizable symbols, as a public law enforcement officer.” The decision was anything but surprising. It followed in the footsteps of recent opinions issued by two federal appellate courts that held unconstitutional similar legislation regulating minors' access to fictional images of violence in video ...


What Got Into The Court? What Happens Next?, Linda Greenhouse Nov 2017

What Got Into The Court? What Happens Next?, Linda Greenhouse

Maine Law Review

We are now in the midst of an amazing Supreme Court term--more than half-way through on the calendar, far short of halfway through in terms of what has yet to be decided. It's been a roller-coaster term of sorts, beginning with the highly unusual early-September argument in the campaign finance case, followed by a rather quiet fall and winter, and then ending with an April sitting during which the Court will consider, in the context of the country's response to terrorism, cases that are likely to go quite far to define for the modern age the meaning of ...


Measuring The Chilling Effect, Brandice Canes-Wrone, Michael C. Dorf Nov 2017

Measuring The Chilling Effect, Brandice Canes-Wrone, Michael C. Dorf

Michael C. Dorf

Supreme Court doctrine grants special protection against laws that “chill” protected speech, most prominently via the overbreadth doctrine. The overbreadth doctrine permits persons whose own speech is unprotected to challenge laws that infringe the protected speech of third parties. The Court has not generally applied overbreadth and the other speech-protective doctrines to other constitutional rights even though other rights could also be subject to a chilling effect. The case law simply assumes that the chilling effect only acts on the exercise of speech, and that this justifies treating speech differently from other rights. We tested these assumptions with respect to ...


Contra Scalia, Thomas, And Gorsuch: Originalists Should Adopt A Living Constitution, R. Randall Kelso Nov 2017

Contra Scalia, Thomas, And Gorsuch: Originalists Should Adopt A Living Constitution, R. Randall Kelso

University of Miami Law Review

Two main approaches appear in the popular literature on constitutional interpretation: originalism and non-originalism. An originalist approach refers back to some aspect of the framers’ and ratifiers’ intent or action to justify a decision. A non-originalist approach bases the goal of constitutional interpretation in part on consideration of some justification independent of the framers’ and ratifiers’ intent or action.

What is often unappreciated in addressing the question of whether to adopt an originalist or non-originalist approach to constitutional interpretation is the complication that emerges if one concludes that the framing and ratifying generation believed in the model of a living ...


@Potus: Rethinking Presidential Immunity In The Time Of Twitter, Douglas B. Mckechnie Nov 2017

@Potus: Rethinking Presidential Immunity In The Time Of Twitter, Douglas B. Mckechnie

University of Miami Law Review

President Donald Trump’s use of Twitter portends a turning point in presidential communication. His Tweets animate his base and enrage his opponents. Tweets, however, like any form of communication, can ruin reputations. In Nixon v. Fitzgerald, the Supreme Court determined that a president retains absolute immunity for all actions that fall within the “outer perimeter” of his official duties. This Article explores the “outer perimeter” of presidential immunity. It suggests the First, Fifth, and Fourteenth Amendments inform the demarcation of the “outer perimeter,” and that when a president engages in malicious defamation, his speech falls outside this perimeter and ...


The Constitutionality Of Polygamy Prohibitions After Lawrence V. Texas: Is Scalia A Punchline Or A Prophet?, Joseph Bozzuti Nov 2017

The Constitutionality Of Polygamy Prohibitions After Lawrence V. Texas: Is Scalia A Punchline Or A Prophet?, Joseph Bozzuti

The Catholic Lawyer

No abstract provided.


Finding Marriage Amidst A Sea Of Confusion: A Precursor To Considering The Public Purposes Of Marriages, Randy Lee Nov 2017

Finding Marriage Amidst A Sea Of Confusion: A Precursor To Considering The Public Purposes Of Marriages, Randy Lee

The Catholic Lawyer

No abstract provided.


Shh! State Legislators Bite Your Tongues: Semantics Dictates The Constitutionality Of Public School "Moment Of Silence" Statutes, Elizabeth Anne Walsh Nov 2017

Shh! State Legislators Bite Your Tongues: Semantics Dictates The Constitutionality Of Public School "Moment Of Silence" Statutes, Elizabeth Anne Walsh

The Catholic Lawyer

No abstract provided.


Religion, Neutrality, And The Public School Curriculum: Equal Treatment Or Separation?, Matthew D. Donovan Nov 2017

Religion, Neutrality, And The Public School Curriculum: Equal Treatment Or Separation?, Matthew D. Donovan

The Catholic Lawyer

No abstract provided.


Silent Protest: A Catholic Justice Dissents In Buck V. Bell, Phillip Thompson Nov 2017

Silent Protest: A Catholic Justice Dissents In Buck V. Bell, Phillip Thompson

The Catholic Lawyer

No abstract provided.


The Expansion Of Charitable Choice, The Faith Based Initiative, And The Supreme Court's Establishment Clause Jurisprudence, Steven Fitzgerald Nov 2017

The Expansion Of Charitable Choice, The Faith Based Initiative, And The Supreme Court's Establishment Clause Jurisprudence, Steven Fitzgerald

The Catholic Lawyer

No abstract provided.


"Reasonable Accommodation" Under Title Vii: Is It Reasonable To The Religious Employee?, Thomas D. Brierton Nov 2017

"Reasonable Accommodation" Under Title Vii: Is It Reasonable To The Religious Employee?, Thomas D. Brierton

The Catholic Lawyer

No abstract provided.


Supreme Court Decision-Making: An Empirical Analysis Of 2013 Certiorari-Granting, Sam Gersten Nov 2017

Supreme Court Decision-Making: An Empirical Analysis Of 2013 Certiorari-Granting, Sam Gersten

SPICE: Student Perspectives on Institutions, Choices and Ethics

No abstract provided.


Calling Crawford: Minnesota Declares A 911 Call Non-Testimonial In State V. Wright, Alistair Y. Raymond Nov 2017

Calling Crawford: Minnesota Declares A 911 Call Non-Testimonial In State V. Wright, Alistair Y. Raymond

Maine Law Review

In State v. Wright, 1 the State of Minnesota charged David Wright with possession of a firearm by a felon and two counts of second-degree assault against his girlfriend and her sister. A jury found Wright guilty on all charges and sentenced him to sixty months in jail for each crime, with sentences served concurrently. Wright’s girlfriend, R.R., and her sister, S.R., did not testify against him at trial. The prosecution, however, used the transcript of a 911 call placed by R.R. against Wright in the trial. Although the 911 call was hearsay, the court admitted ...


Parsing Personal Predilections: A Fresh Look At The Supreme Court's Cruel And Unusual Death Penalty Jurisprudence, Susan M. Raeker-Jordan Nov 2017

Parsing Personal Predilections: A Fresh Look At The Supreme Court's Cruel And Unusual Death Penalty Jurisprudence, Susan M. Raeker-Jordan

Maine Law Review

The now well-known case of Atkins v. Virginia decided that the execution of those with mental retardation constituted cruel and unusual punishment under the Eighth Amendment. The more recent case of Roper v. Simmons decided that execution of those who were under the age of eighteen when they committed their crimes also constituted cruel and unusual punishment. Both decisions changed the law that had existed since 1989, when the Court held in Penry v. Lynaugh and Stanford v. Kentucky that executions of members of both classes were not unconstitutional. Writing for the Court in Atkins v. Virginia, Justice Stevens was ...


Kelo V. City Of New London-Wrongly Decided And A Missed Opportunity For Principled Line Drawing With Respect To Eminent Domain Takings, Orlando E. Delogu Nov 2017

Kelo V. City Of New London-Wrongly Decided And A Missed Opportunity For Principled Line Drawing With Respect To Eminent Domain Takings, Orlando E. Delogu

Maine Law Review

No eminent domain taking case in the last twenty-five years has excited the level of interest, attention, and debate as has Kelo v. City of New London. The Supreme Court’s decision has not quelled that debate. If anything the stridency, the emotional tenor, of the debate has increased. And in the few months since the decision came down, several dozen states (in the absence of any meaningful federal limitation on what constitutes “public use”) have proposed statutes or constitutional amendments that would limit their exercise of eminent domain (taking) powers. There is even talk of federal legislation to temper ...


Cláusula Del Debate Y Del Discurso Parlamentario R 2017.Pdf®, Daniel Fernando Gómez Tamayo Nov 2017

Cláusula Del Debate Y Del Discurso Parlamentario R 2017.Pdf®, Daniel Fernando Gómez Tamayo

Daniel Fernando Gómez Tamayo. PhD

Cláusula del Debate y del Discurso Parlamentario.
 
Estudio de la argumentación de la sentencia SU 047/1999


Mitchell V. Helms: Does Government Aid To Religious Schools Violate The First Amendment? An Extensive Analysis Of The Decision And Its Repercussions, Peter Swift Nov 2017

Mitchell V. Helms: Does Government Aid To Religious Schools Violate The First Amendment? An Extensive Analysis Of The Decision And Its Repercussions, Peter Swift

The Catholic Lawyer

No abstract provided.


Illusion Or Protection? Free Exercise Rights And Laws Mandating Insurance Coverage Of Contraception, Edward T. Mechmann, Esq. Nov 2017

Illusion Or Protection? Free Exercise Rights And Laws Mandating Insurance Coverage Of Contraception, Edward T. Mechmann, Esq.

The Catholic Lawyer

No abstract provided.