Law Commons^™

The Hydraulics And Politics Of Party Regulation, Michael S. Kang

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No abstract provided.

New Light On The Decision Of 1789, Sai Prakash

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In the Constitution’s earliest days, members of the House engaged in one of the nation’s most momentous constitutional debates. While deliberating on the Department of Foreign Affairs bill, representatives considered the mechanisms for removing executive officers. The final Act conveyed no removal authority but discussed what would happen when the president removed the Secretary of Foreign Affairs. The traditional view of the Decision, voiced by James Madison, Alexander Hamilton, and William Howard Taft, is that because the Act conveyed no removal authority and laid out what would happen when the president removed, the Act presumed that the president had a …

A Right To No Meaningful Review: The Aftermath Of Shalala V. Illinois Council On Long Term Care, Inc., Ruqaiijah Ayanna Yearby

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A RIGHT TO NO MEANINGFUL REVIEW: THE AFTERMATH OF SHALALA v. ILLINOIS COUNCIL ON LONG TERM CARE, INC. Ruqaiijah A. Yearby

The Due Process Clause of the Fifth Amendment has been perverted in the federal administrative system. Federal agencies, such as the U.S. Department of Health and Human Services (HHS), regularly deprive individuals of liberty and property with little to no review. In its regulation of the health care industry through the Medicare program, HHS often turns a blind eye to procedural Due Process protections, such as providing individuals an opportunity to challenge the deprivation of property at a hearing, …

Is Tiger Woods’S Swing Really A Work Of Art? Defining The Line Between The Right Of Publicity And The First Amendment, Michael R. Suppappola

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My Comment, “Is Tiger Woods’s Swing Really a Work of Art? Defining the Line Between the Right of Publicity and the First Amendment,” focuses on the controversial “right of publicity,” a legal doctrine which is now recognized in the majority of states either at common law or by statute. The right of publicity allows athletes and celebrities to exclude others from using an entertainer’s likeness or image absent express permission. Although advocates claim that the right is needed to allow celebrities to profit from their own labor and goodwill, my Comment outlines how the right of publicity endangers traditional First …

The Dual Model Of Balancing: A Model For The Proper Scope Of Balancing In Constitutional Law, Iddo Porat

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One of the most pressing problems of current constitutional law in the aftermath of September 11 is how to balance constitutional rights and national security interests. No one however seems to pause and ask should we balance individual rights and national security interests and if so when. One of the reasons for this is the widespread acceptance of what I shall term in this Article, the balancing consciousness: the view that every problem can and should be solved through balancing conflicting considerations. This Article demonstrates that the balancing consciousness is misleading. Not every problem can and should be solved through …

The Irrational Supreme Court, Michael I. Meyerson

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Abstract: The Irrational Supreme Court

The pejorative “irrational” is used to describe many defects in legal reasoning, but is generally not meant to be understood as a literal lack of rational thinking. Similarly, the “rational basis test” is not meant to determine whether a legislature is “not endowed with reason or understanding,” but rather if it has acted with some hidden, invidious motive. Incredibly, though, the Supreme Court has frequently issued truly “irrational opinions,” simply due to the fundamental nature of group decision-making.

Much has been written about Nobel Prize winner Kenneth Arrow’s “Impossibility Theorem,” which proved that, when faced …

Book Review: Forensic Linguistics, Dru Stevenson

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Review of John Gibbons' text "Forensic Linguistics"

In Or Out? Groups And The Fourteenth Amendment After Lawrence V. Texas, Miranda Mcgowan

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This article explores a line of Supreme Court cases that have struck down state laws using a rigorous form of rational basis scrutiny, culminating in Lawrence v. Texas. The facts of these rigorous rational basis cases are diverse, but they share a common denominator: the Court has applied more rigorous rational basis scrutiny when a government has restricted the liberties of, or denied some state benefit, to a group—specifically, gays, lesbians, persons with disabilities, illegal immigrant children, and hippies.

Rigorous rational basis scrutiny has not wholly supplanted regular rational basis scrutiny. Courts still use regular rational basis scrutiny to review …

The Opacity Of Transparency, Mark Fenster

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The normative concept of transparency, along with the open government laws that purport to create a transparent public system of governance promise the world—a democratic and accountable state above all, and a peaceful, prosperous, and efficient one as well. But transparency, in its role as the theoretical justification for a set of legal commands, frustrates all parties affected by its ambiguities and abstractions. The public’s engagement with transparency in practice yields denials of reasonable requests for essential government information, as well as government meetings that occur behind closed doors. Meanwhile, state officials bemoan the significantly impaired decision-making processes that result …

Water Justice In South Africa: Natural Resources Policy At The Intersection Of Human Rights, Economics, & Political Power, Rose Francis

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This paper analyzes water as a social justice issue in South Africa, a nation that has undergone tremendous political and legal transformations over the last fifteen years, but whose population nonetheless continues to suffer from severe inequities in access to freshwater resources. In light of growing water scarcity worldwide, this paper highlights that legal treatment of water resources has significant socioeconomic and distributive justice impacts, even in progressive constitutional democracies that have embraced principles of human rights and international legal norms. The paper explores historical changes in South African water law and evaluates the current political and legal status of …

Federal-State Negotiations Over Federal Enclaves In The Early Republic, Adam S. Grace

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This article examines practical solutions arrived at by the federal and state governments in resolving early interpretive issues that arose under Article I's "Enclave Clause." Focusing on the federal government's creation of federal "enclaves" for use in a national lighthouse system, the article compares these politically-based solutions with the later development of Supreme Court "Enclave Clause" jurisprudence.

Compliance Theory And The Inter-American Court Of Human Rights, Morse Hyun-Myung Tan

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This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.

The Supreme Court And The Trusts: Antitrust And The Foundations Of Modern American Business Regulation From Knight To Swift, Donald J. Smythe

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The period from 1870-1920 was a turning point in modern history. It was during this time that the contours of the modern industrial state were formed. A “Great Merger Movement” occurred right in the middle of this period across most of the industrialized nations of the world. The trend toward industrial concentration, which was known at the time as the “trust problem,” generated considerable public alarm. Some have argued that it was caused by antitrust policy and the Supreme Court’s early antitrust decisions. Indeed, the idea has become the conventional wisdom among some antitrust scholars, especially those connected with the …

The Case For The Legislative Override, Nicholas Stephanopoulos

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What is the optimal arrangement of judicial review? Most scholars who have addressed this question have assumed that there are only two important alternatives: judicial supremacy and parliamentary sovereignty. The literature has neglected the conceptual space that exists between these two poles, in particular the innovative legislative override model. This Article describes and evaluates the experiences of the two countries that have adopted the override, Canada and Israel. It also introduces a refined override model that promises to protect fundamental rights while promoting democratic decision-making. Finally, the Article explains which institutional and political contexts are hospitable to the override and …

Substantive Due Process As A Source Of Constitutional Protection For Nonpolitical Speech, Gregory P. Magarian

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Present First Amendment doctrine presumptively protects anything within the descriptive category “expression” from government regulation, subject to balancing against countervailing government interests. As government actions during the present war on terrorism have made all too clear, that doctrine allows intolerable suppression of political debate and dissent – the expressive activity most integral to our constitutional design. At the same time, present doctrine fails to give a clear account of why the Constitution protects expressive autonomy and when that protection properly should yield to government interests, leading to an inconsistent and unsatisfying free speech regime. In this article, Professor Magarian advocates …

A Positive Theory Of The War Powers Constitution, Jide O. Nzelibe

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This Article explores the division of war-making authority between the President and Congress through the prism of positive political theory. For the most part, the scholarly treatment of the war-powers debate has been normative with various commentators offering various textual or functional accounts of what the proper allocation of war-making authority should be. This Article provides a positive account of the war-making powers by focusing on the domestic political constraints that the political branches face in the context of an imminent international crisis. This Article argues that the presidential decision to seek congressional authorization is determined by a two-level strategic …

Reclaiming The Public Forum: Courts Must Stand Firm Against Governmental Efforts To Displace Dissidence, Christopher B. Ford

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Recognizing that the right to free speech for dissidents is increasingly at risk in the United States, this submission catalogs manifold methods the government has employed to constrain free speech and urges that courts not only serve as a bulwark against further erosion of public expression of dissent but endeavor to restore access to the public forum that recently has been lost. The submission surveys the background of the right to free expression and provides details and examples of the government’s increasing tendency to suppress dissident speech by deploying heavily armed police in demonstrations, committing violent acts against peaceful protesters, …

What Is A Tragedy Of The Commons? Overfishing And The Campaign Spending Problem, Shi-Ling Hsu

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Over the thirty-seven years since its publication, Garden Hardin's "Tragedy of the Commons" has clearly become one of the most influential writings of all time. The tragedy of the commons is one of those rare scholarly ideas that has had an enormous impact in academia and is also commonly used outside of academia. In legal scholarship, the tragedy of the commons has been used to characterize a wide variety of resource problems, including intellectual property rights, overcrowding of telecommunications spectra, air and water pollution, and of course, the classic environmental commons problem, overfishing. But I suggest this embarrassment of citation …

Awakening An Empire Of Liberty: Exploring The Roots Of Socratic Inquiry And Political Nihilism In American Democracy, Maurice R. Dyson

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This book review timely examines Cornel West’s latest sequel to his 1992 best seller, Race Matters. In Democracy Matters, West unflinchingly examines the waning of democratic energies and nihilistic practices of private and public sector in our present age of democracy. This review takes a critical examination of the logic underpinning West’s arguments, his nomenclature of various nihilism plaguing our society, the sometimes clumsy employment of literary devices and his thesis regarding the ‘niggerization’ of America after 9/11 that can serve as a basis for unifying collective action against imperialism. West makes a compelling argument that the public needs to …

Congressional Oversight Of Counterterrorism And Its Reform, Robert F. Blomquist

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No abstract provided.

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, 88 Minn. Law Rev. 1233, Suzanne B. Goldberg

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Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas looks in depth at the dissonance between the Supreme Court’s rhetorical support for morals-based lawmaking and the Court’s jurisprudence. In taking this approach, the article responds to a central post-Lawrence question regarding the sufficiency of a government’s moral agenda as a justification for restricting individual rights. It turns out, on close review of the cases going back to the mid-1800s, that the Court has almost never relied explicitly on a morals rationale to sustain an allegedly rights-infringing government action.

The article develops several explanations for this avoidance of explicit morals …