Law Commons^™

Constitutionalizing Class Inequality: Due Process In State Farm, Martha T. Mccluskey

Buffalo Law Review

This essay takes a step toward building a story of economic class in U.S. constitutional law, as part of a special essay issue of the Buffalo Law Review developed from a series of workshops titled ClassCrits: Toward a Critical Analysis of Economic Inequality, sponsored by the Baldy Center for Law and Social Policy at the University at Buffalo. The essay focuses on the 2003 U.S. Supreme Court decision in State Farm Mutual Insurance Co. v. Campbell, one of a series of recent cases using the due process clause of the 14th Amendment to limit punitive damage awards against corporate defendants …

"The Threes": Re-Imagining Supreme Court Decisionmaking, Tracey E. George, Chris Guthrie

Vanderbilt Law Review

Article III is odd. In contrast to Articles 12 and II, which specify in some detail how the legislative and executive branches are to be assembled, Article III says virtually nothing about the institutional design of the Supreme Court.

Consistent with this Constitutional silence, the Court's look, shape, and behavior have adapted to changed circumstances. For example, the Court's membership has changed substantially. Initially, six Justices sat on the Court; in time, the Court grew to ten and shrank to seven. Only in 1869 did it settle at nine. Likewise, the Court's jurisdiction has changed, first expanding, then contracting, and …

Finding The "Income" In "Income Tax": A Look At Murphy V. Lr.S. And An Attempt To Pick Up Pieces Of Glenshaw Glass, Matthew J. O'Connor

Indiana Law Journal

No abstract provided.

Exploring The Use Of The Word "Citizen" In Writings On The Fourth Amendment, M. Isabel Medina

Indiana Law Journal

Symposium: Latinos and Latinas at the Epicenter of Contemporary Legal Discourses. Indiana University School of Law-Bloomington, March 2007.

The Land That Democratic Theory Forgot, Luis Fuentes-Rohwer

Indiana Law Journal

The island of Puerto Rico is officially designated as an unincorporated United States territory. Acquired by the United States in the aftermath of the Spanish- American war, the status of the island offers innumerable lessons and puzzles for students of the law of democracy and constitutional law. Begin with the fact that citizens ofPuerto Rico-U.S. citizens at birth-cannot vote in federal elections but are subject to the plenary powers of Congress. How do we justify this condition under American constitutional values and basic tenets of democratic theory? Looking to the moment of acquisition, how may we reconcile the acquisition of …

Something To Talk About: Is There A Charter Right To Access Government Information?, Vincent Kazmierski

Dalhousie Law Journal

Can sections 2(b) and 3 of the Canadian Charter of Rights and Freedoms be interpreted to protect a constitutional right of access to government information? The author argues that the constitutional principle of democracy provides a foundation for judicial recognition of such a constitutional right of access even though the inclusion ofan explicit right to access to government information was rejected during the process of drafting the Charter Given that the Supreme Court of Canada's section 2(b) and 3 jurisprudence has been informed by the principle of democracy, the application of the principle may now guide the Court to include …

The Style Of A Skeptic: The Opinions Of Chief Justice Roberts, Laura Krugman Ray

Indiana Law Journal

No abstract provided.

Modern Constitutional Democracy And Imperialism, James Tully

Osgoode Hall Law Journal

To what extent is the development of modern constitutional democracy as a state form in the West and its spread around the world implicated in western imperialism? This has been a leading question of legal scholarship over the last thirty years. James Tully draws on this scholarship to present a preliminary answer. Part I sets out seven central features of modern constitutional democracy and its corresponding international institutions of law and government. Part II sets out three major imperial roles that these legal and political institutions have played, and continue to play. And finally, Part III surveys ways in which …

The Constitutive Paradox Of Modern Law: A Comment On Tully, Ruth Buchanan

Osgoode Hall Law Journal

This commentary draws out and elaborates upon some of the more challenging aspects of Professor Tully's sophisticated taxonomy of the relationship between modern constitutional forms and constituent powers. Tully's article reveals the historical particularities of these formations, and at the same time encourages the reader to think beyond them, towards the potentially uncategorizable realm of democratic constitutionalism. Yet, how is it possible to use a taxonomy of modern constitutional democracy as a means of understanding what ties in the uncharted territory beyond? This commentary further explores to what extent this paradoxical modern configuration of constituent powers and constitutional forms may …

"Other Worlds Are Actual": Tully On The Imperial Roles Of Modern Constitutional Democracy, Michael Simpson

Osgoode Hall Law Journal

The globalization of modern legal and economic practices has not ushered in a state of perpetual peace as Kantians have famously predicted. Rather, it has reinforced the perpetual crises and violence that is today's realm of the political. This article examines James Tully's claim that the formalization of diverse legal traditions into the modular confines of modern constitutions, as nation-states and international taw, is a project of today's imperial hegemony. The global imperialism of modern constitutionalism is one that suppresses the vast multiplicity of existing legal pluralities and, consequently, fuels war and aggression, not perpetual peace. Tully's important analysis of …

Constitutional Law—First Amendment & Freedom Of Speech—Students May Be Regarded As Closed-Circuit Recipients Of The State's Anti Drug Message: The Supreme Court Creates A New Exception To The Tinker Student Speech Standard. Morse V. Frederick, 127 S. Ct. 2618 (2007), Megan D. Hargraves

University of Arkansas at Little Rock Law Review

This note argues that the Supreme Court's decision in Morse significantly weakens students' free speech rights. Although the Court stated that students "do not shed their constitutional rights at the school house gates," its decisions, in effect, weakens Tinker's important holding that students are entitled to First Amendment protection. The note asserts that the Court's opinion broadens schools' authority to regulate student speech in ways that are contrary to fundamental First Amendment values and explicitly allows schools to engage in highly suspect viewpoint discrimination.

The note first examines some of the fundamental First Amendment values at stake in student speech …

Payment Finality And Discharge In Funds Transfers, Benjamin Geva

Chicago-Kent Law Review

The article explores the occurrence of "final payment" in funds transfers in the form of "accountability" by a bank instructed to pay to a payee/beneficiary. Both the accountability of the drawee/payor bank in a check-collection debit-pull system and that of the beneficiary's bank in a wire-transfer credit-push system are discussed. The article further examines the relationship between "final payment" and the discharge of an obligation paid by means of the "funds transfer." It analyzes relevant provisions of Articles 3, 4, and 4A of the Uniform Commercial Code, sometimes against the background of general common law principles. The article proposes minor …

Brennan V. Scalia, Justice Or Jurisprudence? A Moderate Proposal, Travis A. Knobbe

West Virginia Law Review

No abstract provided.

The Constitutional Dimension Of Immigration Federalism, Clare Huntington

Vanderbilt Law Review

In Farmers Branch, Texas, the city council enacted a measure to fine landlords who rent their premises to unauthorized migrants,' and in Arizona, the state legislature passed a law imposing stiff penalties on employers who intentionally or knowingly hire unauthorized migrants. In San Francisco, the board of supervisors passed a measure that bars law enforcement officers from inquiring into the immigration status of an individual in the course of a criminal investigation. In Alabama and Florida, state officials have entered into agreements with the federal government permitting state law enforcement officers to arrest and detain non-citizens on immigration charges. Other …

Non-Judicial Precedent, Michael J. Gerhardt

Vanderbilt Law Review

This Article proposes a new paradigm for analyzing the role of precedent in constitutional law. The conventional perspective equates precedent with judicial decisions, particularly those of the Supreme Court, and almost totally ignores the constitutional significance of precedents made by public authorities other than courts. Yet, non- judicial actors produce precedents that are more pervasive than those made by courts in constitutional law. Non-judicial precedents are not only confined to the backwaters of constitutional law, but they also pertain to serious constitutional matters-presidential succession, secession, congressional power to remove Presidents and Justices, and the respective authorities of the President and …

Big Boi, Dr. Seuss, And The King: Expanding The Constitutional Protections For The Satirical Use Of Famous Trademarks , Aaron Jaroff

American University Law Review

No abstract provided.

The Suspension Clause As A Structural Right, Stephen I. Vladeck

University of Miami Law Review

No abstract provided.

Vicarious Criminal Liability And The Constitutional Dimensions Of Pinkerton, Alex Kreit

American University Law Review

This article considers what limits the constitution places on holding someone criminally liable for another's conduct. While vicarious criminal liability is often criticized, there is no doubt that it is constitutionally permissible as a general matter. Under the long-standing felony murder doctrine, for example, if A and B rob a bank and B shoots and kills a security guard, A can be held criminally liable for the murder. What if, however, A was not involved in the robbery but instead had a completely separate conspiracy with B to distribute cocaine? What relationship, if any, does the constitution require between A's …

The Fallacy Of Mandating Contraceptive Equity: Why Laws That Protect Women With Health Insurance Deepen Institutional Discrimination, Phyra M. Mccandless

University of San Francisco Law Review

This Comment takes a close look at the United States' approach to health insurance and various unsuccessful efforts at broadening the health care choices of American women in the form of contraceptive equity laws.

Constitutional Possibilities, Lawrence B. Solum

Indiana Law Journal

No abstract provided.

The "High-Crime Area" Question: Requiring Verifiable And Quantifiable Evidence For Fourth Amendment Reasonable Suspicion Analysis [Pdf], Andrew Guthrie Ferguson, Damien Bernache

American University Law Review

This article proposes a legal framework to analyze the "high crime area" concept in Fourth Amendment reasonable suspicion challenges. Under existing Supreme Court precedent, reviewing courts are allowed to consider that an area is a "high crime area" as a factor to evaluate the reasonableness of a Fourth Amendment stop. See Illinois v. Wardlow, 528 U.S. 119 (2000). However, the Supreme Court has never defined a "high crime area" and lower courts have not reached consensus on a definition. There is no agreement on what a "high-crime area" is, whether it has geographic boundaries, whether it changes over time, whether …

Solving The Parents Involved Paradox, Lino A. Graglia

Seattle University Law Review

The Supreme Court's decision in Parents Involved in Community Schools v. Seattle School District No. 1 (Parents Involved) presents the seeming paradox that the Constitution can on one day require a school district to take drastic measures, including busing students across a giant school district to increase racial integration in schools, and then prohibit school districts from taking even the mildest measures, such as using race as a tie-breaker in making student assignments, on the next. How, a rational observer must wonder, can this be possible? The answer is that, as usual in the making of “constitutional law,” the Constitution …

Harmless Constitutional Error And The Institutional Significance Of The Jury, Roger A. Fairfax, Jr.

Fordham Law Review

Appellate harmless error review, an early twentieth-century innovation prompted by concerns of efficiency and finality, had been confined to nonconstitutional trial errors until forty years ago, when the U.S. Supreme Court extended the harmless error rule to trial errors of constitutional proportion. Even as criminal procedural protections were expanded in the latter half of the twentieth century, the harmless error rule operated to dilute the effect of many of these constitutional guarantees--the Sixth Amendment right to jury trial being no exception. However, while a trade-off between important process values and the Constitution's protection of individual rights is inherent in the …

Keynote Address, A Community Of Reason And Rights, Harold Hongju Koh, William Michael Treanor

Fordham Law Review

No abstract provided.

Getting Beyond The Crossfire Phenomenon: A Militant Moderate's Take On The Role Of Foreign Authority In Constitutional Interpretation, Melissa A. Waters

Fordham Law Review

No abstract provided.

Lower Courts And Constitutional Comparativism, Roger P. Alford

Fordham Law Review

No abstract provided.

The Return Of Reasonableness: Saving The Fourth Amendment From The Supreme Court, Melanie D. Wilson

Case Western Reserve Law Review

No abstract provided.

Shot Down: The D.C. Circuit Disarms Gun Control Laws In Parker V. District Of Columbia, Allison L. Mollenhauer

Villanova Law Review

No abstract provided.

Expansion Of Family Rights While Searching For The Meaning Of Life, Individuality, And Self, Saby Ghoshray

Santa Clara Law Review

No abstract provided.

Do Churches Matter - Towards An Institutional Understanding Of The Religion Clauses, Richard W. Garnett

Villanova Law Review

No abstract provided.