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Revisiting Youngstown: Against The View That Jackson's Concurrence Resolves The Relation Between Congress And The Commander-In-Chief, Mark D. Rosen
Revisiting Youngstown: Against The View That Jackson's Concurrence Resolves The Relation Between Congress And The Commander-In-Chief, Mark D. Rosen
Mark D. Rosen
Virtually all legal analysts believe that the tripartite framework from Justice Jackson’s Youngstown concurrence provides the correct framework for resolving contests between Congress (when it regulates pursuant to its powers to make rules and regulations for the land and naval forces, for instance) and the president when he acts pursuant to his commander-in-chief powers. This Article identifies a core assumption of the tripartite framework that, up to now, has not been recognized and that consequently has not been adequately analyzed or justified. While Jackson’s framework importantly recognizes that Congress’s regulatory powers may overlap with the president’s commander-in-chief powers, the framework …
Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah K. Harding
Kramer's Popular Constitutionalism: A Quick Normative Assessment, Sarah K. Harding
Sarah K. Harding
No abstract provided.
The Surprisingly Strong Case For Tailoring Constitutional Principles, Mark D. Rosen
The Surprisingly Strong Case For Tailoring Constitutional Principles, Mark D. Rosen
Mark D. Rosen
Many constitutional principles apply to more than one level of government. This is true not only of Bill of Rights guarantees that have been incorporated against the States, but of many constitutional principles whose source lies outside of the Bill of Rights. The conventional wisdom is that such multi-level constitutional principles apply identically to all levels of government. The Article's thesis is that this One-Size-Fits-All approach is problematic because the different levels of government - federal, state, and local - sometimes are sufficiently different that a given constitutional principle may apply differently to each level. This Article critically examines an …
Extraterritoriality And Political Heterogeneity In American Federalism, Mark D. Rosen
Extraterritoriality And Political Heterogeneity In American Federalism, Mark D. Rosen
Mark D. Rosen
It is commonly understood that as a matter of federal law, states' substantive policies may diverge in respect of those matters that are not violative of the United States Constitution. As a practical matter, however, what degree of political heterogeneity among states is possible vis-a-vis substantive policies that are not unconstitutional? The answer to the question turns in large part on whether states, if they so choose, can regulate their citizens even when they are out-of-state. If they cannot, citizens can bypass their home state’s laws by simply traveling to a more legally permissive state to do there what is …
Entrance, Voice And Exit: The Constitutional Bounds Of The Right Of Association, Evelyn Brody
Entrance, Voice And Exit: The Constitutional Bounds Of The Right Of Association, Evelyn Brody
Evelyn Brody
Despite the central role of organized groups as intermediary bodies in American society, the constitutional right of association is surprisingly recent and limited. As the Supreme Court struggles to define the bounds of 'the' freedom of association, it is time to take a critical look at a difficult set of questions. First, many private organizations engage in various types of selection criteria, but what subjects the Jaycees to State anti-discrimination laws but insulates the Boy Scouts of America? Second, the typical American nonprofit organization is a corporation that lacks both shareholders and members, so are there any 'associates' whose rights …
Civil Penalties And Multiple Punishment Under The Double Jeopardy Clause: Some Unanswered Questions, David S. Rudstein
Civil Penalties And Multiple Punishment Under The Double Jeopardy Clause: Some Unanswered Questions, David S. Rudstein
David S Rudstein
No abstract provided.