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Articles 61 - 90 of 1379
Full-Text Articles in Law
From Constitutional Listening To Constitutional Learning, Leigh Jenco
From Constitutional Listening To Constitutional Learning, Leigh Jenco
Chicago-Kent Law Review
In this article, I point out some limitations of Michael Dowdle's "listening" model, particularly its basis in the "principle of charity." I try to show that listening, as well as the principle of charity, are inadvertently passive and one-sided exercises that seem to have little similarity to the deeply self-transformative "learning" Dowdle urges us to undertake. I go on to suggest other ways of accomplishing the goals Dowdle sets for this project. Specifically, I develop the "self-reflexive approach" to think about how we might change ourselves—our conversations, our terms, our concerns—in addition to, and in the process of, learning from …
The Unity Of Constitutional Values: A Comment On Ernest Caldwell's "Horizontal Rights And Chinese Constitutionalism: Judicialization Through Labor Disputes", Arif A. Jamal
Chicago-Kent Law Review
Ernest Caldwell wants to defend Chinese constitutionalism from criticism, mainly from Western constitutional scholars or scholars who hold up Western constitutional patterns as an ideal. Caldwell makes both a 'comparative' claim and a 'value' claim. The comparative claim is that Chinese constitutional law must be understood on its own terms and that on these terms it does protect rights, even if it does not do so in the same way as Western constitutional law. The value claim is that the procedures in China's legal system satisfy value concerns captured in the term 'constitutionalism' because they show how that system respects …
From Constitutional Listening To Moral Listening, Roy Tseng
From Constitutional Listening To Moral Listening, Roy Tseng
Chicago-Kent Law Review
In order to provide comments on Michael Dowdle's account of "Constitutional Listening," this paper aims to establish three counter-arguments. First of all, in contrast to Dowdle's particularly narrow understanding of liberalism, I argue that to evaluate the moral import of liberalism properly, we need to draw attention to the diversities of liberalism. According to what I will call "historicist liberalism," for example, in understanding other cultures we should try to show sensitivities toward alien political systems and moral values. Second of all, although I appreciate Dowdle's effort to avoid the misinterpretation of non-Western constitutional discourse, I do not agree with …
Discrimination In The Marcellus Shale: The Dormant Commerce Clause And Hydraulic Fracturing Waste Disposal, Eric Michel
Discrimination In The Marcellus Shale: The Dormant Commerce Clause And Hydraulic Fracturing Waste Disposal, Eric Michel
Chicago-Kent Law Review
The environmentally controversial process of hydraulic fracturing (commonly referred to as "fracking") has led to a recent explosion in the supply and sale of natural gas in the United States. However, every fracking operation creates a sizable amount of toxic wastewater that requires disposal, and drillers in Pennsylvania have increasingly been shipping their waste across the border to Ohio because of Pennsylvania's inadequate internal disposal options. In response, Ohio has passed legislation that taxes out-of-state fracking waste at a greater rate than waste derived from natural gas drilling within its borders. This Note examines whether Ohio's taxing scheme violates the …
Shall The Twain Never Meet? Competing Narratives And Discourses Of The Rule Of Law In Singapore, Jack Tsen-Ta Lee
Shall The Twain Never Meet? Competing Narratives And Discourses Of The Rule Of Law In Singapore, Jack Tsen-Ta Lee
Research Collection Yong Pung How School Of Law
This article aims to assess the role played by the rule of law in discourse by critics of the Singapore Government’s policies and in the Government’s responses to such criticisms. It argues that in the past the two narratives clashed over conceptions of the rule of law, but there is now evidence of convergence of thinking as regards the need to protect human rights, though not necessarily as to how the balance between rights and other public interests should be struck. The article also examines why the rule of law must be regarded as a constitutional doctrine in Singapore, the …
Talking Chalk: Defacing The First Amendmen In The Public Forum, Marie A. Failinger
Talking Chalk: Defacing The First Amendmen In The Public Forum, Marie A. Failinger
West Virginia Law Review
No abstract provided.
Excavating Constitutional Antecedents In Asia: An Essay On The Potential And Perils, Arun K. Thiruvengadam
Excavating Constitutional Antecedents In Asia: An Essay On The Potential And Perils, Arun K. Thiruvengadam
Chicago-Kent Law Review
This essay seeks to endorse Tom Ginsburg's call for studies that expand the relatively limited range of historically informed scholarship on constitutional law in Asia. Such a trend will no doubt also broaden the focus of the discipline of contemporary constitutional scholarship, which remains unjustifiably narrow and excludes many regions of the globe. While appreciating the virtues of Ginsburg's broader analysis, the essay also seeks to draw attention to the potential pitfalls of such historically-oriented inquiry. I emphasize the fact that in many Asian societies, contemporary constitutional practice marks radical departures from pre-existing traditions of law and constitutionalism. Drawing upon …
Constitutional Listening, Michael W. Dowdle
Constitutional Listening, Michael W. Dowdle
Chicago-Kent Law Review
This article explores a particular methodology of comparative constitutional analysis that it calls "constitutional listening." Derived from the interpretive "principle of charity," constitutional listening involves interpreting constitutional discourse of other polities in their best light. This includes not simply polities whose constitutional structures and values resemble our own, but perhaps even more importantly, polities and constitutional systems whose values and structures seem alien to us. The value of this methodology, it is argued, lies in its ability to expand our understanding of the diversity of experiences that have gone into the human project of constitutionalism, and in the diversity of …
Why The National Popular Vote Compact Is Unconstitutional, Norman R. Williams
Why The National Popular Vote Compact Is Unconstitutional, Norman R. Williams
BYU Law Review
Unable to secure passage of a federal constitutional amendment abolishing the Electoral College, several opponents of the Electoral College have sought to establish the direct, popular election of the President via an interstate compact according to which individual signatory states agree to appoint their presidential electors in accordance with the nationwide popular vote. Ostensibly designed to prevent elections, such as the one in 2000, in which the Electoral College “misfired” and chose the candidate who received fewer popular votes, the National Popular Vote Compact has been adopted by several states, including California. In this Article, I argue that the National …
The Dual-Faceted Federalism Framework And The Derivative Constitutional Status Of Local Governments, Michael W. Cannon
The Dual-Faceted Federalism Framework And The Derivative Constitutional Status Of Local Governments, Michael W. Cannon
BYU Law Review
No abstract provided.
Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews
Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews
BYU Law Review
No abstract provided.
Repudiating The Narrow Rule In Capital Sentencing, Scott W. Howe
Repudiating The Narrow Rule In Capital Sentencing, Scott W. Howe
BYU Law Review
This Article proposes a modest reform of Eighth Amendment law governing capital sentencing to spur major reform in the understanding of the function of the doctrine. The Article urges the Supreme Court to renounce a largely empty mandate known as the “narrowing” rule and the rhetoric of equality that has accompanied it. By doing so, the Court could speak more truthfully about the important but more limited function that its capital-sentencing doctrine actually pursues, which is to ensure that no person receives the death penalty who does not deserve it. The Court could also speak more candidly than it has …
Constitutionalism: East Asian Antecedents, Tom Ginsburg
Constitutionalism: East Asian Antecedents, Tom Ginsburg
Chicago-Kent Law Review
To what degree can traditional Asian political and legal institutions be seen as embodying constitutionalist values? This question has risen to the fore in recent decades as part of a new attention to constitutionalism around the world, as well as the decline in orientalist perceptions of Asia as a region of oppressive legal traditions. This article juxtaposes East Asian analogues or antecedents of constitutionalism with a particular set of recent theoretical understandings of the concept of constitutionalism. After conducting a historical review of political and legal institutions in China, Japan and Korea, the article argues that we can indeed speak …
“Abandoned… Without A Word Of Warning”: Perspectives On Maples V. Thomas, Deborah A. Demott
“Abandoned… Without A Word Of Warning”: Perspectives On Maples V. Thomas, Deborah A. Demott
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
Clarity At Sentencing Deferred: How Dorsey V. United States Could Have Reformed Federal Sentencing, Jonathan Ross
Clarity At Sentencing Deferred: How Dorsey V. United States Could Have Reformed Federal Sentencing, Jonathan Ross
Duke Journal of Constitutional Law & Public Policy
No abstract provided.
The Transformation Of Immigration Federalism, Jennifer M. Chacón
The Transformation Of Immigration Federalism, Jennifer M. Chacón
William & Mary Bill of Rights Journal
No abstract provided.
Leaving The Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, And Their Consequences, Stephen B. Burbank, S. Jay Plager, Gregory Ablavsky
Leaving The Bench, 1970-2009: The Choices Federal Judges Make, What Influences Those Choices, And Their Consequences, Stephen B. Burbank, S. Jay Plager, Gregory Ablavsky
All Faculty Scholarship
This article explores the decisions that, over four decades, lower federal court judges have made when considering leaving the bench, the influences on those decisions, and their potential consequences for the federal judiciary and society. A multi-method research strategy enabled the authors to describe more precisely than previous scholarship such matters of interest as the role that judges in senior status play in the contemporary federal judiciary, the rate at which federal judges are retiring from the bench (rather than assuming, or after assuming, senior status), and the reasons why some federal judges remain in regular active service instead of …
Inside Voices: Protecting The Student-Critic In Public Schools, Josie F. Brown
Inside Voices: Protecting The Student-Critic In Public Schools, Josie F. Brown
Faculty Publications
First Amendment doctrine acknowledges the constructive potential of citizens’ criticism of public officials and governmental policies by offering such speech vigilant protection. However, when students speak out about perceived injustice or dysfunction in their public schools, teachers and administrators too often react by squelching and even punishing student-critics. To counteract school officials’ reflexively repressive responses to student protest and petition activities, this Article explains why the faithful performance of public schools’ responsibility to prepare students for constitutional citizenship demands the adoption of a more receptive and respectful attitude toward student dissent. After documenting how both educators and courts have mistakenly …
On The Border Patrol And Its Use Of Illegal Roving Patrol Stops., David Anton Armendariz
On The Border Patrol And Its Use Of Illegal Roving Patrol Stops., David Anton Armendariz
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract Forthcoming.
Religious Treatment Exemption Statutes: Betrayest Thou Me With A Statute., Shirley Darby Howell
Religious Treatment Exemption Statutes: Betrayest Thou Me With A Statute., Shirley Darby Howell
The Scholar: St. Mary's Law Review on Race and Social Justice
Abstract Forthcoming.
Beyond The Courts, Beyond The State: Reflections On Caldwell's "Horizontal Rights And Chinese Constitutionalism", Victor V. Ramraj
Beyond The Courts, Beyond The State: Reflections On Caldwell's "Horizontal Rights And Chinese Constitutionalism", Victor V. Ramraj
Chicago-Kent Law Review
This article provides a critical response to Ernest Caldwell's article, Horizontal Rights and Chinese Constitutionalism: Judicialization through Labor Disputes. According to Caldwell, those looking for an emerging constitutional culture in China should be looking not in the higher courts (as the American paradigm of constitutional law suggests), but in the lower courts that settle day-to-day disputes. Moreover, the constitutional discourse in those lower courts is not about limiting state power, but about the need for "horizontal" protections of citizens—specifically laborers—from their powerful employers in furtherance of constitutional values. This article offers three responses to Caldwell's thesis. First, while acknowledging and …
Constitutionalism And The Rule Of Law: Considering The Case For Antecedents, Rogers M. Smith
Constitutionalism And The Rule Of Law: Considering The Case For Antecedents, Rogers M. Smith
Chicago-Kent Law Review
Tom Ginsburg credibly establishes that East Asian legal traditions include elements that can be considered antecedents for perhaps the strongest form of the rule of law, constitutional restraints that apply even to sovereigns. Treating these precedents chiefly as anticipations of Western-style constitutionalism, however, may be historically misleading and may inhibit reflection on the desirability of practices that represent alternatives to Western conceptions of the rule of law.
Takings And Transitions, Holly Doremus
The Right To Refuse Life Sustaining Medical Treatment And The Noncompetent Nonterminally Ill Patient: An Analysis Of Abridgment And Anarchy, Elizabeth Helene Adamson
The Right To Refuse Life Sustaining Medical Treatment And The Noncompetent Nonterminally Ill Patient: An Analysis Of Abridgment And Anarchy, Elizabeth Helene Adamson
Pepperdine Law Review
No abstract provided.
A First Amendment Right Of Access To A Juror's Identity: Toward A Fuller Understanding Of The Jury's Deliberative Process , Robert Lloyd Raskopf
A First Amendment Right Of Access To A Juror's Identity: Toward A Fuller Understanding Of The Jury's Deliberative Process , Robert Lloyd Raskopf
Pepperdine Law Review
No abstract provided.
Boland In The Wind: The Iran-Contra Affair And The Invitation To Struggle , Bretton G. Sciaroni
Boland In The Wind: The Iran-Contra Affair And The Invitation To Struggle , Bretton G. Sciaroni
Pepperdine Law Review
No abstract provided.
Table Annexed To Article: Hamilton And Madison Deploy ‘Constitution’ Surveyed By Percent Of Words In Source, Peter J. Aschenbrenner
Table Annexed To Article: Hamilton And Madison Deploy ‘Constitution’ Surveyed By Percent Of Words In Source, Peter J. Aschenbrenner
Peter J. Aschenbrenner
In the last of three articles, OCL surveys the deployment of ‘constitution’ through The Federalist Papers, the bank bill debates and the remainder of Madison’s life (post-presidency). Numeric values for hits are computed for the range of semantic values, with the focus being constitution = text (locatable in only one place) competing with constitution = government. A net score is proposed which measures the effort an author has expended to ‘cleanse’ his semantic palette by employing one semantic value over a competing value.
The Constitutional Right To Education In India: Horizontal Dimensions, Shubhankar Dam
The Constitutional Right To Education In India: Horizontal Dimensions, Shubhankar Dam
Shubhankar Dam
No abstract provided.
Fundamental Rights And Theory Of Constitutional Common Goods, Carlos Luiz Strapazzon
Fundamental Rights And Theory Of Constitutional Common Goods, Carlos Luiz Strapazzon
Carlos Luiz Strapazzon
This article discusses fundamental rights on the ground of republican theory of fundamental rights. Its aims to provide connections between fundamental social rights and the notion of the constitutional common good. The criticisms and justifications are grounded in a neorepublicanism political theory of the Constitution. The paper starts with the analysis of legal concepts established in the normative material, to follow an empirical adequacy, based on case law, and develops argumentative criticism from various theoretical references relevant to fundamental rights.
Da Universidade. Reflexão Jurídica Em Tempo De Crise, Paulo Ferreira Da Cunha
Da Universidade. Reflexão Jurídica Em Tempo De Crise, Paulo Ferreira Da Cunha
Paulo Ferreira da Cunha
Há princípios constitucionais para as Universidades. É bom que tal não se esqueça num tempo em que a Constituição está, mais que metida na gaveta, apedrejada todos os dias. E há princípios de bom senso, também. A Universidade não pode ser desvirtuada nem por asfixia financeira, nem por burocracia antidemocrática, nem por modismos que distraiam os professores (e até os estudantes) dos fins naturais e primaciais que tem: aprender e ensinar.