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Articles 1 - 7 of 7
Full-Text Articles in Law
Common Law Constitutionalism, The Constitutional Common Law, And The Validity Of The Individual Mandate, Abigail R. Moncrieff
Common Law Constitutionalism, The Constitutional Common Law, And The Validity Of The Individual Mandate, Abigail R. Moncrieff
Law Faculty Articles and Essays
The paper proceeds as follows. Part I describes the constitutional common law and its interactions with common-law constitutionalism. Part II uses the fight over the constitutionality of the Patient Protection and Affordable Care Act (ACA) and its so-called "individual mandate" as a case study to flesh out the core differences between common-law constitutionalism and constitutional common law. Part III argues that a viable justification for a living constitution needs to embrace and defend the courts' essentially political nature, confronting head-on the (skyscraper) originalists' sense that courts should never do politics.
Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff
Safeguarding The Safeguards: The Aca Litigation And The Extension Of Structural Protection To Non-Fundamental Liberties, Abigail R. Moncrieff
Law Faculty Articles and Essays
As the lawsuits challenging the Patient Protection and Affordable Care Act (ACA) have evolved, one feature of the litigation has proven especially rankling to the legal academy: the courts' incorporation of substantive libertarian concerns into their structural federalism analyses. The breadth and depth of scholarly criticism is surprising, especially given that judges frequently choose indirect methods, including the structural and processbased methods at issue in the ACA litigation, for protecting substantive constitutional values. Indeed, indirect protection of constitutional liberties is a well-known and well-theorized strategy, which one scholar recently termed "semisubstantive review" and another theorized as "judicial manipulation of legislative …
Cost-Benefit Federalism: Reconciling Collective Action Federalism And Libertarian Federalism In The Obamacare Litigation And Beyond, Abigail R. Moncrieff
Cost-Benefit Federalism: Reconciling Collective Action Federalism And Libertarian Federalism In The Obamacare Litigation And Beyond, Abigail R. Moncrieff
Law Faculty Articles and Essays
This Article argues that most commentators have exaggerated all three of the relevant issues with Obamacare: its efficiency gains, its liberty costs, and its departure from the status quo ante's federalist balance. The collective action problem with state insurance regulation is not as bad as scholars of collective action federalism have argued; the liberty implications of the individual mandate are not as extreme as scholars of libertarian federalism have argued; and the shift from state to national power is not as significant as the litigants and courts have argued. Although I do not make the strong claim that Obamacare reaches …
The Politicization Of Judicial Elections And Its Effect On Judicial Independence, Matthew W. Green Jr., Susan J. Becker
The Politicization Of Judicial Elections And Its Effect On Judicial Independence, Matthew W. Green Jr., Susan J. Becker
Law Faculty Articles and Essays
This article presents the proceedings of the Cleveland-Marshall College of Law Symposium, The Politicization of Judicial Elections and Its Effect on Judicial Independence and LGBT Rights, held October 21, 2011. The idea for the conference stemmed from the November 2010 Iowa judicial election, in which three justices were voted out of office as a result of joining a unanimous ruling, Varnum v. Brien, that struck down, on equal protection grounds, a state statute limiting marriage rights to heterosexual couples. The conference addresses whether the backlash that occurred in Iowa after the Varnum decision might undermine judicial independence in jurisdictions where …
Standing On Holy Ground: How Rethinking Justiciability Might Bring Peace To The Establishment Clause, John M. Bickers
Standing On Holy Ground: How Rethinking Justiciability Might Bring Peace To The Establishment Clause, John M. Bickers
Cleveland State Law Review
The Establishment Clause is home to both procedural and substantive disorder. Particularly when evaluating religious speech by the government, the Supreme Court has applied a number of distinct tests, with varying degrees of strictness. There has never been an overarching principle for determining which test would appear at which time; commentators, and occasionally the Justices themselves, have suspected that desired results drove the choice of tests. At the same time, the Court has articulated a series of requirements necessary for a plaintiff to have standing to challenge government action, only to ignore them in government religious speech cases. The resulting …
State Constitutional Prohibitions On Special Laws , Justin R. Long
State Constitutional Prohibitions On Special Laws , Justin R. Long
Cleveland State Law Review
Since the nineteenth century, most states have had constitutional clauses prohibiting “special laws.” These clauses were ratified to protect the people of each state from domination by narrow economic elites, who would use their economic power to win grants of privilege from the state legislatures. To fight the corrupt favors garnered by private interests in this way, state constitutional drafters wrote clauses requiring their legislatures to pass only “general laws” that would apply equally to all members of the regulated class. For a brief period, these clauses were enforced in the courts—but more to protect economic elites than the democratic …
Constitutional Cases And The Four Cardinal Virtues, R. George Wright
Constitutional Cases And The Four Cardinal Virtues, R. George Wright
Cleveland State Law Review
In addressing constitutional cases, judges face no shortage of legal rules, tests, principles, doctrines, and policies upon which to draw. In those cases, the challenge is assumed to be to identify and apply the most relevant such legal rules, tests, principles, doctrines, and policies. An accompanying judicial opinion tries to articulate this process, partly to legitimize the outcome, partly to provide guidance, and perhaps partly for purposes of civic education and inspiration. This Article recommends a somewhat different approach to constitutional adjudication. Specifically, this Article recommends supplementing the above standard forms of constitutional adjudication with appropriate and legitimate attention to …