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Full-Text Articles in Law
Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber
Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber
Faculty Scholarship
“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally …
A Textual And Historical Case Against A Global Constitution, Andrew Kent
A Textual And Historical Case Against A Global Constitution, Andrew Kent
Faculty Scholarship
he emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …
Congress’S Under-Appreciated Power To Define And Punish Offenses Against The Law Of Nations, Andrew Kent
Congress’S Under-Appreciated Power To Define And Punish Offenses Against The Law Of Nations, Andrew Kent
Faculty Scholarship
Perhaps no Article I power of Congress is less understood than the power to define and punish . . . Offences against the Law of Nations. There are few scholarly works about the Clause; Congress, the Supreme Court, and the Executive Branch have seldom interpreted the Clause, and even then they have done so in a cursory and contradictory manner. Relying on textual analysis and Founding-era history and political theory to read the Clause in a different mannner than previous commentators, this Article seeks to rescue the Clause from obscurity and thereby enrich current foreign affairs debates. Not only is …
Introductory Remarks: The Relationship Of Law And Morality In Respect To Constitutional Law, William W. Van Alstyne
Introductory Remarks: The Relationship Of Law And Morality In Respect To Constitutional Law, William W. Van Alstyne
Faculty Scholarship
This article explores the consequences of a Constitution not entirely aligned with moral law. These remarks encourage all legal minds to acknowledge such gaps when they are found, although there are a variety of ways in which such acknowledgment may take shape.
The Federal Judicial Power And The International Legal Order, Curtis A. Bradley
The Federal Judicial Power And The International Legal Order, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
School Naming Rights And The First Amendment’S Perfect Storm, Joseph Blocher
School Naming Rights And The First Amendment’S Perfect Storm, Joseph Blocher
Faculty Scholarship
In the past five years, public schools across the country have begun to explore a new avenue of fundraising: selling naming rights to school facilities. The popularity and monetary value of these sales, however, only highlight the importance of the First Amendment concerns they raise. This Article uses school naming rights as a lens through which to examine the conflicts between government speech, commercial speech, and forum analysis, three categories of First Amendment analysis that are simultaneously and problematically implicated by school naming rights sales. Courts and scholars have long noted the internal ambiguities within these three categories, but have …
The Constitution Outside The Constitution, Ernest A. Young
The Constitution Outside The Constitution, Ernest A. Young
Faculty Scholarship
Countries lacking a single canonical text define the “constitution” to include all laws that perform the constitutive functions of creating governmental institutions and conferring rights on individuals. The British Constitution, for example, includes a variety of constitutive statutes, such as the Magna Carta and the Parliament Acts. This Article proposes a thought experiment: what if we defined the U.S. Constitution by function, rather than by form? Viewed from this perspective, “the Constitution” would include not only the canonical document but also a variety of statutes, executive materials, and practices that structure our government. What these constitutive materials lack is a …