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Articles 31 - 60 of 269
Full-Text Articles in Law
"Believe Me," We Do Not Have A Foreign Emoluments Clause Violation, Scotty N. Teal
"Believe Me," We Do Not Have A Foreign Emoluments Clause Violation, Scotty N. Teal
Indiana Journal of Global Legal Studies
President Trump was sued in New York District Court for allegedly violating the Foreign Emoluments Clause. In its brief, the Citizens for Responsibility and Ethics in Washington (CREW) alleged that the president's international businesses and real estate holdings positioned him to receive money from foreign governments. These business interests, or entanglements, could "sway" or create an opportunity for negative foreign influence in violation of the Emoluments Clause. CREW states that these "entanglements between American officials and foreign powers could pose a creeping, insidious threat to the Republic." CREW argued that President Trump violated the Emoluments Clause because the clause "cover[s] …
Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D.A. Jeremy Telman
Originalism And Second-Order Ipse Dixit Reasoning In Chisholm V. Georgia, D.A. Jeremy Telman
Cleveland State Law Review
This Article presents a new perspective on the Supreme Court’s constitutional jurisprudence during the Early Republic. It focuses on what I am calling second-order ipse dixit reasoning, which occurs when Justices have to decide between two incommensurable interpretive modalities. If first-order ipse dixit is unreasoned decision-making, second-order ipse dixit involves an unreasoned choice between or among two or more equally valid interpretive options. The early Court often had recourse to second-order ipse dixit because methodological eclecticism characterized its constitutional jurisprudence, and the early Court established no fixed hierarchy among interpretive modalities.
Chisholm, the pre-Marshall Court’s most important constitutional decision, illustrates …
The Faces Of The Second Amendment Outside The Home, Take Three: Critiquing The Circuit Courts Use Of History-In-Law, Patrick J. Charles
The Faces Of The Second Amendment Outside The Home, Take Three: Critiquing The Circuit Courts Use Of History-In-Law, Patrick J. Charles
Cleveland State Law Review
This article seeks to critique the circuit courts’ varying history-in-law approaches, as well as to provide advice on the proper role that history-in-law plays when examining the scope of the Second Amendment outside the home. This article sets forth to accomplish this task in three parts. Part I argues why history-in-law is appropriate when adjudicating Second Amendment decisions outside the home. Part II examines the benefits and burdens of utilizing history-in-law as a method of constitutional interpretation, while breaking down the alternative approaches employed by circuit courts when adjudicating Second Amendment decisions outside the home. Lastly, Part III offers practical …
Article Ii And Antidiscrimination Norms, Aziz Z. Huq
Article Ii And Antidiscrimination Norms, Aziz Z. Huq
Michigan Law Review
The Supreme Court’s opinion in Trump v. Hawaii validated a prohibition on entry to the United States from several Muslim-majority countries and at the same time repudiated a longstanding precedent associated with the Japanese American internment of World War II. This Article closely analyzes the relationship of these twin rulings. It uses their dichotomous valences as a lens on the legal scope for discriminatory action by the federal executive. Parsing the various ways in which the internment of the 1940s and the 2017 exclusion order can be reconciled, the Article identifies a tension between the Court’s two holdings in Trump …
Fire, Aim, Ready! Militarizing Animus: “Unit Cohesion” And The Transgender Ban, Eric Merriam
Fire, Aim, Ready! Militarizing Animus: “Unit Cohesion” And The Transgender Ban, Eric Merriam
Dickinson Law Review (2017-Present)
President Trump’s currently litigated “transgender ban,” which excludes transgender persons from military service, is premised in part upon a claim that transgender persons’ presence in the military adversely affects “unit cohesion.” This use of identity- based “unit cohesion” as a justification for excluding a group from military service is the latest episode in a long history of the government asserting “unit cohesion” to justify excluding people from military service based on their identities. This Article contends that unit cohesion, when premised on identity, is always an impermissible justification for exclusion from military service because it is unconstitutional animus. Though …
Personal Jurisdiction Over Orb-Web Corporations: A Re-Routed Approach For "Change In The Navigation Of Time", Vidhya Iyer
Personal Jurisdiction Over Orb-Web Corporations: A Re-Routed Approach For "Change In The Navigation Of Time", Vidhya Iyer
Global Business Law Review
The law of personal jurisdiction lies at the heart of all litigation. Our courts must recognize the rights of individuals as well as the rights of corporations. The motto placed at the entrance of the United States Supreme Court—"Equal Justice Under Law"—ensures the promise of equal justice under the law to all persons. It expresses the ultimate responsibility of the Supreme Court of the United States (the "Court") as the highest tribunal for all cases and controversies arising under the Constitution, laws, and treaties of the United States and functions as a guardian and interpreter of the Constitution. From the …
Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, Eric J. Segall
Eight Justices Are Enough: A Proposal To Improve The United States Supreme Court, Eric J. Segall
Pepperdine Law Review
Over the last twenty-five years, some of the most significant Supreme Court decisions involving issues of national significance like abortion, affirmative action, and voting rights were five-to-four decisions. In February 2016, the death of Justice Antonin Scalia turned the nine-Justice court into an eight-Justice court, comprised of four liberal and four conservative Justices, for the first time in our nation’s history. This article proposes that an evenly divided court consisting of eight Justices is the ideal Supreme Court composition. Although the other two branches of government have evolved over the years, the Supreme Court has undergone virtually no significant changes. …
State Action And The Constitution's Middle Band, Louis Michael Seidman
State Action And The Constitution's Middle Band, Louis Michael Seidman
Michigan Law Review
On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.
It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there …
The Prevailing Culture Over Immigration: Centralized Immigration And Policies Between Attrition And Accommodation, Antonios Kouroutakis
The Prevailing Culture Over Immigration: Centralized Immigration And Policies Between Attrition And Accommodation, Antonios Kouroutakis
Seton Hall Circuit Review
No abstract provided.
Original Intent: Understanding The Supreme Court's Original Jurisdiction In Controversies Between States, Kristen A. Linsley
Original Intent: Understanding The Supreme Court's Original Jurisdiction In Controversies Between States, Kristen A. Linsley
The Journal of Appellate Practice and Process
No abstract provided.
Free Agency: The Constitutionality Of Methods That Influence A Presidential Elector’S Ability To Exercise Personal Judgment, Zachary J. Shapiro
Free Agency: The Constitutionality Of Methods That Influence A Presidential Elector’S Ability To Exercise Personal Judgment, Zachary J. Shapiro
Journal of Law and Policy
When the Constitution of the United States went into effect on March 4, 1789, it established a new, hybrid form of government. As such, it created a complex and multifaceted process of electing our nation’s chief executive. Most notably, it granted states the power to choose a slate of presidential electors to debate the qualifications of the candidates selected by the voters. In recent history, however, certain states have established laws that severely limit the ability of presidential electors to exercise their right to vote for the candidates that they believe to be the best choice to sit in the …
The Foreign Emoluments Clause: Protecting Our National Security Interests, Deborah Samuel Sills
The Foreign Emoluments Clause: Protecting Our National Security Interests, Deborah Samuel Sills
Journal of Law and Policy
Classical republican ideals played an important role in the formation of our country. Guided by these ideals, several provisions were included in the Constitution to protect the United States from these harms, including the Emoluments Clause. This Clause prohibits United States officials from accepting certain types of benefits from foreign nations, except with Congress's consent. It protects our national interests by ensuring that federal officials remain free from improper pressures from foreign states and act for the welfare of our country. This provision promotes transparency and accountability and helps guard against corrupt influences that could undermine, and even destroy, a …
The Foreign Emoluments Clause: Protecting Our National Security Interests, Deborah Samuel Sills
The Foreign Emoluments Clause: Protecting Our National Security Interests, Deborah Samuel Sills
Journal of Law and Policy
Classical republican ideals played an important role in the formation of our country. Guided by these ideals, several provisions were included in the Constitution to protect the United States from these harms, including the Emoluments Clause. This Clause prohibits United States officials from accepting certain types of benefits from foreign nations, except with Congress's consent. It protects our national interests by ensuring that federal officials remain free from improper pressures from foreign states and act for the welfare of our country. This provision promotes transparency and accountability and helps guard against corrupt influences that could undermine, and even destroy, a …
Indecency Four Years After Fox Television Stations: From Big Papi To A Porn Star, An Egregious Mess At The Fcc Continues, Clay Calvert, Minch Minchin, Keran Billaud, Kevin Bruckenstein, Tershone Phillips
Indecency Four Years After Fox Television Stations: From Big Papi To A Porn Star, An Egregious Mess At The Fcc Continues, Clay Calvert, Minch Minchin, Keran Billaud, Kevin Bruckenstein, Tershone Phillips
University of Richmond Law Review
Using the WDBJ case as an analytical springboard, this article examines the tumultuous state of the FCC's indecency enforcement regime more than three years after the Supreme Court's June 2012 opinion in Fox Television Stations. Part I of this article briefly explores the missed First Amendment opportunities in Fox Television Stations, as well as some possible reasons why the Supreme Court chose to avoid the free-speech questions in that case." Part II addresses the FCC's decision in September 2012 to target only egregious instances of broadcast indecency and, in the process, to jettison hundreds of thousands of complaints that had …
Supreme Court Supremacy In A Time Of Turmoil: James V. City Of Boise, Richard Henry Seamon
Supreme Court Supremacy In A Time Of Turmoil: James V. City Of Boise, Richard Henry Seamon
Loyola of Los Angeles Law Review
Last Term’s decision in James v. City of Boise encapsulates the current civil rights turmoil and the legal system’s inadequate response to it. In James ̧ the U.S. Supreme Court reversed a decision in which the Idaho Supreme Court (1) awarded attorney’s fees against a civil rights plaintiff despite her credible claim of excessive police force and (2) denied that it was bound by U.S. Supreme Court decisions interpreting the federal statute authorizing the award. Although the Court in James reaffirmed the state courts’ well-settled duty to obey the Court’s decisions on federal law, this article shows that the duty …
Free Agency: The Constitutionality Of Methods That Influence A Presidential Elector’S Ability To Exercise Personal Judgment, Zachary J. Shapiro
Free Agency: The Constitutionality Of Methods That Influence A Presidential Elector’S Ability To Exercise Personal Judgment, Zachary J. Shapiro
Journal of Law and Policy
When the Constitution of the United States went into effect on March 4, 1789, it established a new, hybrid form of government. As such, it created a complex and multifaceted process of electing our nation’s chief executive. Most notably, it granted states the power to choose a slate of presidential electors to debate the qualifications of the candidates selected by the voters. In recent history, however, certain states have established laws that severely limit the ability of presidential electors to exercise their right to vote for the candidates that they believe to be the best choice to sit in the …
The Death Penalty And The Fifth Amendment, Joseph Blocher
The Death Penalty And The Fifth Amendment, Joseph Blocher
Northwestern University Law Review
Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?
Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to …
In Memoriam: Justice Antonin Scalia And The Constitution's Golden Thread, L. Margaret Harker
In Memoriam: Justice Antonin Scalia And The Constitution's Golden Thread, L. Margaret Harker
University of Richmond Law Review
No abstract provided.
Maintaining Institutional Power And Constitutional Principles: A Rhetorical Analysis Of United States V. Nixon, R. Scott Medsker, Todd F. Mcdorman
Maintaining Institutional Power And Constitutional Principles: A Rhetorical Analysis Of United States V. Nixon, R. Scott Medsker, Todd F. Mcdorman
Speaker & Gavel
In examining these implications we argue that the Court’s Nixon decision was a uniquely strategic response to a complex rhetorical situation. In fact, the elements of the situation were so fundamental to the tenor of the Court’s response that this essay’s framework is drawn from Lloyd F. Bitzer’s construction of the rhetorical situation. The use of this system will allow for deeper consideration of the context of United States v. Nixon as well as assessment of the legal text as responsive to that context.
The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi
The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi
Northwestern University Law Review
Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines—the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly …
Politics At Work After Citizens United, Ruben J. Garcia
Politics At Work After Citizens United, Ruben J. Garcia
Loyola of Los Angeles Law Review
There are seismic changes going on in the political system. The United States Supreme Court has constitutionalized the concentration of political power in the “one percent” in several recent decisions, including Citizens United v. FEC. At the same time, unions are representing a shrinking share of the workforce, and their political power is also being diminished. In order for unions to recalibrate the balance of political power at all, they must collaborate with grassroots community groups, as they have done in several recent campaigns. There are, however, various legal structures that make coordination between unions and nonunion groups difficult, …
When Scalia Wasn't Such An Originalist, Michael Lewyn
When Scalia Wasn't Such An Originalist, Michael Lewyn
Touro Law Review
No abstract provided.
When The Police Get The Law Wrong: How Heien V. North Carolina Further Erodes The Fourth Amendment, Vivan M. Rivera
When The Police Get The Law Wrong: How Heien V. North Carolina Further Erodes The Fourth Amendment, Vivan M. Rivera
Loyola of Los Angeles Law Review
No abstract provided.
The Death Knell For The Death Penalty: Judge Carney's Order To Kill Capital Punishment Rings Loud Enough To Reach The Supreme Court, Alyssa Hughes
The Death Knell For The Death Penalty: Judge Carney's Order To Kill Capital Punishment Rings Loud Enough To Reach The Supreme Court, Alyssa Hughes
Loyola of Los Angeles Law Review
No abstract provided.
Scalia On Abortion: Originalism... But, Why?, Robert Cassidy
Scalia On Abortion: Originalism... But, Why?, Robert Cassidy
Touro Law Review
No abstract provided.
The Founding Fathers Said I Am Not Subject To Term Limits, Elias Arroyo
The Founding Fathers Said I Am Not Subject To Term Limits, Elias Arroyo
Touro Law Review
No abstract provided.
The Constitutional Jurisprudence Of Sandra Day O'Conor: A Refusal To "Foreclose The Unanticipated", Wilson Ray Huhn
The Constitutional Jurisprudence Of Sandra Day O'Conor: A Refusal To "Foreclose The Unanticipated", Wilson Ray Huhn
Akron Law Review
Part I of this essay covers an early period on the Court when Justice O’Connor seemed principally concerned with questions of jurisdiction and appellate process, during which she was frequently inclined to dispose of cases on technical or procedural grounds. Part II discusses Justice O’Connor’s attention to detail and consideration of factual context and her tendency to adjust the traditional standards of review in light of the circumstances of the case. Part III outlines Justice O’Connor’s respect for precedent and commitment to the principle of stare decisis particularly as it relates to her refusal to overrule Roe v. Wade. Part …
Infinite Hope - Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly
Infinite Hope - Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly
Akron Law Review
This symposium celebrates the 140th anniversary of ratification. The anniversary provides us with a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions...Therefore, our participants explicitly discuss applying their understanding of history to the modern implications of the Fourteenth Amendment and current law. Understanding the Amendment, especially because of its early reception by the Court, requires looking at law, history, political science, and sociology, among other disciplines, to try to …
Realsim Over Formalism And The Presumption Of Constitutionality: Chief Justice Roberts' Opinion Upholding The Individual Mandate, Wilson Huhn
Akron Law Review
In National Federation of Independent Business v. Sebelius, Chief Justice John Roberts cast the deciding vote to uphold the individual mandate of the Affordable Care Act. Speaking for the Court in Part IIIC of his opinion, Roberts found that the individual mandate was properly enacted pursuant to the General Welfare Clause. Two aspects of his opinion in particular drove this result. In deciding whether the individual mandate constitutes a “tax” within the meaning of the Constitution, the Chief Justice engaged in realistic analysis rather than legal formalism. In addition, Roberts reasoned that, if fairly possible, the statute had to be …
The Ndaa, Aumf, And Citizens Detained Away From The Theater Of War: Sounding A Clarion Call For A Clear Statement Rule, Diana Cho
Loyola of Los Angeles Law Review
In the armed conflict resulting from the September 11 attacks, the executive authority to order the indefinite detention of citizens captured away from the theater of war is an issue of foreign and domestic significance. The relevant law of armed conflict provisions relevant to conflicts that are international or non-international in nature, however, do not fully address this issue. Congress also intentionally left the question of administrative orders of citizen detainment unresolved in a controversial provision of the 2012 version of the annually-enacted National Defense Authorization Act. While plaintiffs in Hedges v. Obama sought to challenge the enforceability of NDAA’s …