Law Commons^™

Muting Gideon's Trumpet: Pricing The “Right To Counsel” In Minnesota Courts, Peter Erlinder

C. Peter Erlinder

No abstract provided.

Vectoral Federalism, Scott Dodson

Scott Dodson

In this Article, I offer a new framework for understanding federalism. “Vectoral federalism” engages directional metaphors—horizontal and vertical—to group various federalism doctrines together into two principal groups. Horizontal federalism concerns the battle between the federal and the state governments for the power to regulate individuals. Vertical federalism concerns the federal government’s power to regulate states and the states’ concomitant power to resist this regulation. Viewing federalism doctrines as having vertical or horizontal vectors (or both) identifies their common justifications and characteristics, which can assist in understanding and in applying the principles of federalism. The directional synthesis also illuminates and helps …

Dignity: The New Frontier Of State Sovereignty, Scott Dodson

Scott Dodson

Few constitutional doctrines have had as turbulent a history as state sovereign immunity, the right of a state to refuse to appear as a defendant in court. The Court has, until recently, avoided a full explanation of the reason for immunizing states from certain suits. But in the 2002 decision Federal Maritime Commission v. South Carolina State Ports Authority, the Court asserted that the preeminent purpose of state sovereign immunity is to accord States the dignity that is consistent with their status as sovereign entities. This “dignity rationale” lacks substantial justification and is untethered to any limiting principles. Given that, …

Same-Sex Union Announcements: Precis On A Not So Picayune Matter, James M. Donovan

James M. Donovan

Although some newspapers have voluntarily begun to publish same-sex union announcements, others will continue in their traditional exclusionary practices. Some of those papers can anticipate being accused in court of unlawful discrimination where the law allows that cause of action. Reflexively, those newspapers will in turn erect a defensive shield from such charges by appealing, at least in part, to the First Amendment.

This comment examines the viability of that defense. The set-piece for the discussion are the details of a complaint, described in Part I, lodged against the Times-Picayune by a lesbian couple that was denied access to its …

Twenty-First Century Planning And The Constitution, Michael E Lewyn

Michael E Lewyn

In 2002, The American Planning Association (APA), a nationwide organization of land use planners, published the "Growing Smart Legislative Guidebook", a collection of model laws governing zoning and other land use-related issues. This article evaluates a variety of constitutional issues related to the Guidebook.

Same-Sex Union Announcements: Whether Newspapers Must Publish Them, And Why We Should Care, James M. Donovan

James M. Donovan

The recent decision by the New York Times to publish same-sex union announcements brought to national attention the struggle of gay men and lesbians to gain access to this contested space. To date only about ten percent of newspapers allow same-sex couples to publish announcements on terms equal to heterosexual couples. Although some couples have sued to have their announcements published, these claims have been rejected as interfering with the newspaper's First Amendment protections. This article considers whether the First Amendment's Free Press and Free Speech clauses in fact allow newspapers to discriminate in this way.

The article begins with …

Competing For The People's Affection: Federalism's Forgotten Marketplace, Todd E. Pettys

Todd E. Pettys

Returning to forgotten themes in the Federalist Papers, the article argues that the state and federal governments compete with one another for the “affection” of their citizens and for the regulatory power that often accompanies that affection. The article further contends that citizens and politicians are able fully to participate in this affection-driven marketplace only if three prerequisites are met: each sovereign must be assured of an opportunity to demonstrate its competence; each sovereign must enjoy a significant measure of autonomy from the other; and the two sovereigns’ dealings with one another must be sufficiently transparent to enable citizens to …

Ideological Conflict And The First Amendment, Steven J. Heyman

Steven J. Heyman

According to the prevailing view, constitutional interpretation ideally should consist in the development and application of a single, unified set of principles. This Essay challenges this position in the context of free speech jurisprudence. As the constitutional debates of 1787-91 show, the First Amendment and the Bill of Rights did not reflect a single view, but instead were intended to reconcile conflicting views on the proper relationship between liberty and government. In order to obtain the broad support necessary for adoption, the Bill of Rights was deliberately drafted on the level of general principles that could command a consensus. When …

Los Derechos Fundamentales En Los Procesos De Integración. Union Europea Y Mercosur, Rodrigo A. Poyanco Bugueño

Rodrigo A. Poyanco Bugueño

En el presente documento, copia PDF de mi tesis para obtener el grado de magíster en derecho constitucional por la Pontificia Universidad Católica de Chile, se aborda un análisis comparativo de los sistemas de protección de los derechos fundamentales existentes tanto en el proceso de integracion europea (la Unión Europea) como el proceso latinoamericano del Mercosur. Se intenta probar cómo la supranacionalidad del primero y el carácter meramente internacional del segundo, impactan directamente en la efectividad de cada uno de estos sistemas.

Sin perjuicio de la citación aquí sugerida, los datos bibliográficos completos de la copia física de esta tesis …

Commentary: Is The Rehnquist Court A. A Friend Of The States? B. A Friend Of The People? C. A Friend Of The Court? D. None Of The Above?, Harry L. Witte

Harry L Witte

No abstract provided.

The Enumerated Powers Of States, Robert G. Natelson

Robert G. Natelson

This article lists and discusses the powers reserved exclusively to the states, according the representations made to the ratifying public during the debates over the U.S. Constitution.

The Constitutional Contributions Of John Dickinson, Robert G. Natelson

Robert G. Natelson

This article reviews the impact on the drafting and adoption of the U.S. Constitution of the man sometimes referred to as the most underappreciated Founder

Statutory Retroactivity: The Founders' View, Robert G. Natelson

Robert G. Natelson

The article explains the extent to which the Founders' Constitution permitted and prohibited retroactive legislation, and the provisions in that document relevant to the question.

A Reminder: The Constitutional Values Of Sympathy And Independence, Robert G. Natelson

Robert G. Natelson

Nearly all participants in the American Founding shared constitutiona/ values of "sympathy" and "independence." According to the ideal of sympathy, government actors should mirror the full range of popular attitudes. According to the ideal of independence, voters should remain independent of other citizens and of governmental entities, and those entities should remain independent of, and competitive with, each other. Sympathy and independence were central, not peripheral, to the Founders' Constitution, so the document cannot be interpreted properly without keeping them in view. The author provides examples of how constitutional practice might be altered had these central values not been overlooked.

Federalism, Fig Leaves, And The Games Lawyers Play, Robert C. Power

Robert C Power

No abstract provided.

The Continuing Importance Of Congressman John A. Bingham And The Fourteenth Amendment, Richard L. Aynes

Richard L. Aynes

Lead article in a symposium issue. In the now-famous 1830s chronicle of a visit to America, Alexis de Tocqueville wrote that in America every political issue is ultimately a legal issue in the courts. For Americans who lived through the antislavery and abolitionist era as well as the crisis of the war of 1861-1865, the military victory of the Union forces on the field of battle still left open large political issues. These issues were attempted to be resolved through the political process that produced a legal solution: a constitutional amendment that we currently identify as the Fourteenth Amendment. The …

The Secession Reference And The Limits Of Law, Richard Kay

Richard Kay

When the Supreme Court of Canada issued its judgment on the legality of "unilateral" Quebec secession in August 1998 many Canadians did not know what to make of it. The Court held that the only lawful way in which Quebec might depart the Canadian federation was through one of the amendment mechanisms provided in the Constitution Act 1982. It thus affirmed that Quebec could not secede without the agreement of at least the Houses of the federal Parliament and some number of provincial legislative assemblies. Prime Minister Chretien declared the next day that the judgement was a "victory for all …

Pay No Attention To That Man Behind The Robe: Judicial Elections, The First Amendment, And Judges As Politicians, Michael R. Dimino

Michael R Dimino

Essay: Of Rights Lost And Rights Found: The Coming Restoration Of The Right To A Jury Trial In Minnesota Civil Commitment Proceedings, Peter Erlinder

C. Peter Erlinder

No abstract provided.

The New Federalism: Discerning Truth In American Myths And Legend, Randy Lee

Randy Lee

No abstract provided.

Constitutional Law: The Garvee Bonds Case And Executive Power: Breakthrough Or Blip, Andrew C. Spiropoulos

Andrew C. Spiropoulos

No abstract provided.