Law Commons^™

Statutory Constraints And Constitutional Decisionmaking, Anthony O'Rourke

Anthony O'Rourke

Although constitutional scholars frequently analyze the relationships between courts and legislatures, they rarely examine the relationship between courts and statutes. This Article is the first to systematically examine how the presence or absence of a statute can influence constitutional doctrine. It analyzes pairs of cases that raise similar constitutional questions, but differ with respect to whether the court is reviewing the constitutionality of legislation. These case pairs suggest that statutes place significant constraints on constitutional decisionmaking. Specifically, in cases that involve a challenge to a statute, courts are less inclined to use doctrine to regulate the behavior of nonjudicial officials. …

Symposium On A Free Press And A Fair Trial - Introduction, Donald W. Dowd

Donald W. Dowd

No abstract provided.

Dialogue On State Action, Martin A. Schwartz, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.

Improving Taiwan’S Global Competitiveness: Toward A Safer, Internationally Friendlier Society, Chiehwen Ed Hsu

Chiehwen Ed Hsu

Assessing The Constitutionality Of Legislation: Constitutional Review In Taiwan's Legislative Yuan, Brian Christopher Jones

Brian Christopher Jones

This article examines the constitutional interpretative authority of Taiwan’s Legislative Yuan, while incorporating international viewpoints on constitutional review primarily from the United Kingdom and United States. It contends that Taiwan possesses an over-reliance on legal constitutionalism and strong judicial review, which hinders Legislative Yuan interpretative authority. Author interviews from Legislative Yuan insiders demonstrate that lawmakers and staffers may not actively be thinking about the constitutionality of the bills they are presenting, and that they possess few, if any, official consultation options when seeking advice on constitutional questions. In essence, the interviews displayed clear evidence of judicial overhang. The article further …

Discrimination In Customer Segmentation Marketing Practices, Jude A. Thomas

Jude A Thomas

Customer segmentation is a powerful analytical marketing practice that is employed by a wide range of businesses to segregate customers with similar characteristics into subgroups in order to inform operational business processes. Such practices allow firms to better allocate their resources in order to form more profitable customer relationships, but they also have the capacity to lead to unfair discriminatory impact upon customer groups. Current legislation is largely unprotective of customers so positioned, but recent trends in the insurance and lending industries suggest that a broader application of anti-discrimination laws could foretell a future of greater restrictions on the implementation …

Interpreting Acronyms And Epithets: Examining The Jurisprudential Significance (Or Lack Thereof), Brian Christopher Jones

Brian Christopher Jones

Given the rise in short title sophistication and their prominent use as evidence in U.S. v. Windsor, this essay argues that acronym short titles are a relatively unexplored interpretive phenomenon. Examining how acronyms should be approached in jurisprudence, the essay further explains how many titles are designed around a symbolic epithet, thus calling into question the interpretative value of such titles. Additionally, the essay touches on the recent NY and D.C. decisions regarding the NSA’s bulk telephony metadata collection system, and how the USA PATRIOT acronym may have played a symbolic (psycholinguistic) role.

Inclusionary Eminent Domain, Gerald S. Dickinson

Gerald S. Dickinson

This article proposes a paradigm shift in takings law, namely “inclusionary eminent domain.” This new normative concept – paradoxical in nature – rethinks eminent domain as an inclusionary land assembly framework that is equipped with multiple tools to help guide municipalities, private developers and communities construct or preserve affordable housing developments. Analogous to inclusionary zoning, inclusionary eminent domain helps us think about how to fix the “exclusionary eminent domain” phenomenon of displacing low-income families by assembling and negotiating the use of land – prior to, during or after condemnation proceedings – to accommodate affordable housing where condemnation threatens to decrease …

Respecting Democratic Constitutional Change, Craig M. Scott

Craig M. Scott

The Mask Of Virtue: Theories Of Aretaic Legislation In A Public Choice Perspective, Donald J. Kochan

Donald J. Kochan

The Constitutional Infirmity Of Warrantless Nsa Surveillance: The Abuse Of Presidential Power And The Injury To The Fourth Amendment, Robert M. Bloom, William J. Dunn

Robert Bloom

In recent months, there have been many revelations about the tactics used by the Bush Administration to prosecute their war on terrorism. These stories involve the exploitation of technologies that allow the government, with the cooperation of phone companies and financial institutions, to access phone and financial records. This paper focuses on the revelation and widespread criticism of the Bush Administration’s operation of a warrantless electronic surveillance program to monitor international phone calls and emails that originate or terminate with a United States party. The powerful and secret National Security Agency heads the program and leverages its significant intelligence collection …

Public Assistance, Drug Testing And The Law: The Limits Of Population-Based Legal Analysis, Candice Player

Candice T Player

In Populations, Public Health and the Law, legal scholar Wendy Parmet urges courts to embrace population-based legal analysis, a public health inspired approach to legal reasoning. Parmet contends that population-based legal analysis offers a way to analyze legal issues—not unlike law and economics—as well as a set of values from which to critique contemporary legal discourse. Population-based analysis has been warmly embraced by the health law community as a bold new way of analyzing legal issues. Still population-based analysis is not without its problems. At times Parmet claims too much territory for the population-perspective. Moreover Parmet urges courts to recognize …

Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman

Charles H. Baron

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …

The Implausibility Of Secrecy, Mark Fenster

Mark Fenster

Government secrecy frequently fails. Despite the executive branch’s obsessive hoarding of certain kinds of documents and its constitutional authority to do so, recent high-profile events—among them the WikiLeaks episode, the Obama administration’s celebrated leak prosecutions, and the widespread disclosure by high-level officials of flattering confidential information to sympathetic reporters—undercut the image of a state that can classify and control its information. The effort to control government information requires human, bureaucratic, technological, and textual mechanisms that regularly founder or collapse in an administrative state, sometimes immediately and sometimes after an interval. Leaks, mistakes, open sources—each of these constitutes a path out …

Janus Capital Group, Inc. V. First Derivative Traders: The Culmination Of The Supreme Court’S Evolution From Liberal To Reactionary In Rule 10b-5 Actions, Charles W. Murdock

Charles W. Murdock

“Political” decisions such as Citizens United and National Federation of Independent Business (“Obamacare”) reflect the reactionary bent of several Supreme Court justices. But this reactionary trend is discernible in other areas as well. With regard to Rule 10b-5, the Court has handed down a series of decisions that could be grouped into four trilogies. The article examines the trend over the past 40 years which has become increasingly conservative and finally reactionary.

The first trilogy was a liberal one, arguably overextending the scope of Rule 10b-5. This was followed by a conservative trilogy which put a brake on such extension, …

Semiprocedural Judicial Review, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article explores a novel cross-national phenomenon: the emergence of a new judicial review model that merges procedural judicial review with substantive judicial review. While this model is not yet fully defined, it has already spurred much controversy. The Article explicates this emerging model, which it terms 'semiprocedural review,' and provides a theoretical exploration of both its justifications and its objectionable aspects. It concludes by evaluating semiprocedural review's overall justifiability and suggesting guiding principles for a more legitimate model of semiprocedural review. The Article pursues these goals through the unique perspective of juxtaposing semiprocedural review with 'pure procedural judicial review' …

Inside The Civil Rights Ring: Statutory Jabs And Constitutional Haymakers, Aaron J. Shuler

Aaron J Shuler

Civil rights litigators use statutory and constitutional attacks to combat inequality. Each approach has its advantages and drawbacks developed through interpretation by U.S. courts. The first major decision that shaped modern civil rights was the Civil Rights Cases that dodged a constitutional attack to withdraw most private acts of discrimination out of reach until the Civil Rights Act of 1964 was passed and validated in Heart of Atlanta v. U.S. In addition to the coupling of statutory attacks with private discrimination and constitutional challenges to state biases, statutory attacks have proven to be more adept at addressing disparate impacts as …

Fiduciary Principles And Statutory Form In Relation To The Necessary And Proper Clause: Potential Constitutional Implications For Congressional Short Titles, Brian Christopher Jones

Brian Christopher Jones

This article explores the principles of fiduciary duty and statutory form in relation to the “proper” portion of the Necessary and Proper Clause, and especially in regard to congressional short titles for bills and laws. While the clause is one of the most influential and controversial constitutional phrases, its meaning remains shrouded in mystery. At some level amongst the founders, the Constitution was regarded as a grant of fiduciary duty from the government to its people; given this, the clause should be read from such a perspective, and the duties of loyalty and good faith, among others, come into play …

Bad News For John Marshall, David B. Kopel, Gary Lawson

David B Kopel

In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Maryland. Professor Andrew Koppelman’s response, Bad News for Everybody, wrongly conflates that argument with a wide range of interpretative and substantive positions that are not logically entailed by taking seriously the requirement that laws enacted under the Necessary and Proper Clause must be incidental to an enumerated power. His response is thus largely unresponsive to our actual arguments.

The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom

Daniel Kanstroom

This article considers the problems raised by a federal law--the “REAL ID Act”--that seeks to preclude judicial review of discretionary immigration law decisions. Discretion, the flexible shock absorber of the administrative state, must be respected by our legal system. However, as Justice Felix Frankfurter once wrote, discretion is, “only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.” The article suggests that judicial construction of the REAL ID Act will plumb the deep meaning of this qualification. The new law states, essentially, that constitutional …

A Read-The-Bill Rule For Congress, Hanah Volokh

Hanah M. Volokh

In this Article, I argue that legislators have a duty to read the text of proposed legislation before voting to enact it. A Read the Bill political movement has formed in response to recent high-profile instances of rushed legislation. Putting aside partisan concerns, a rushed legislative process creates real problems because it forces legislators to vote on bills without having the time to properly evaluate the new legal rules that are being imposed on citizens If a rule or norm of reading the bill can slow the legislative process enough to provide for thorough consideration of proposed legislation, it would …

The Puzzling Resistance To Judicial Review Of The Legislative Process, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

Should courts have the power to examine the legislature’s enactment process and strike down statutes enacted contrary to procedural lawmaking requirements? This idea remains highly controversial. While substantive judicial review is well-established and often taken for granted, many judges and scholars see judicial review of the legislative process as utterly objectionable. This Article challenges that prevalent position and establishes the case for judicial review of the legislative process. The Article contends that, ironically, some of the major arguments for substantive judicial review in constitutional theory, and even the arguments in Marbury v. Madison itself, are actually more persuasive when applied …

Somebody's Watching Me: Protecting Patient Privacy In De-Identified Prescription Health Information, Christopher R. Smith

Christopher R Smith

Increasingly, legal scholars, state legislatures and the federal courts are examining patient privacy concerns that arise in the context of the dissemination, distribution and use of patient prescription information. However, less attention has been paid to the sharing of de-identified or encrypted patient prescription information versus identifiable patient prescription information. Though many patients may not realize it, identifiable, de-identified and encrypted patient prescription information is being used for a host of purposes other than insurance reimbursement and treatment, most notably for pharmaceutical marketing purposes. Existing state and federal laws and ethical guidelines provide some protection for the privacy of patient …

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 …

Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan

Patrick McKinley Brennan

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the article's terms, …

Legislative Supremacy In The United States?: Rethinking The Enrolled Bill Doctrine, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article revisits the “enrolled bill” doctrine which requires courts to accept the signatures of the Speaker of the House and President of the Senate on the “enrolled bill” as unimpeachable evidence that a bill has been constitutionally enacted. It argues that this time-honored doctrine has far-reaching ramifications that were largely overlooked in existing discussions. In addition to reexamining the soundness of this doctrine’s main rationales, the Article introduces two major novel arguments against the doctrine. First, it argues that the doctrine amounts to an impermissible delegation of both judicial and lawmaking powers to the legislative officers of Congress. Second, …

Sovereignty And The American Courts At The Cocktail Party Of International Law: The Dangers Of Domestic Invocations Of Foreign And International Law, Donald J. Kochan

Donald J. Kochan

With increasing frequency and heightened debate, United States courts have been citing foreign and “international” law as authority for domestic decisions. This trend is inappropriate, undemocratic, and dangerous. The trend touches on fundamental concepts of sovereignty, democracy, the judicial role, and overall issues of effective governance. There are multiple problems with the judiciary’s reliance on extraterritorial and extra-constitutional foreign or international sources to guide their decisions. Perhaps the most fundamental flaw is its interference with rule of law values. To borrow from Judge Harold Levanthal, the use of international sources in judicial decision-making might be described as “the equivalent of …

Clueless: The Misuse Of Batf Firearms Tracing Data, David B. Kopel

David B Kopel

Sometimes the Bureau of Alcohol, Tobacco and Firearms traces the registered sales history of a gun which was used in a crime, or which has been seized by the police. Traced guns are not representative of the broader universe of crime guns. Accordingly, drawing public policy conclusions based on tracing data is unwise.