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2007

Constitutional Law

Discipline
Institution
Publication
Publication Type

Articles 271 - 278 of 278

Full-Text Articles in Law

Introduction: Dred Scott After 150 Years: A Grievous Wound Remembered, John L. Gedid Dec 2006

Introduction: Dred Scott After 150 Years: A Grievous Wound Remembered, John L. Gedid

John L. Gedid

No abstract provided.

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Challenges To Civilian Control Of The Military: A Rational Choice Approach To The War On Terror, John C. Yoo Dec 2006

Challenges To Civilian Control Of The Military: A Rational Choice Approach To The War On Terror, John C. Yoo

John C Yoo

An overlooked gap in the legal study of national security decisionmaking is civil-military relations. Civilian control of the military remains one of the fundamental norms of our constitutional system, and it appears regularly in the day-to-day functioning of our national security institutions. The War on Terror has exacerbated growing tensions between the civilian leadership and the American military, particularly with the Judge Advocate General's Corps. We propose a rational choice framework to understand and better address challenges to civilian-military relations.

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Executive Power V. International Law, John C. Yoo, Robert J. Delahunty Dec 2006

Executive Power V. International Law, John C. Yoo, Robert J. Delahunty

John C Yoo

Critics of the Bush administration's conduct of the war on terrorism and the wars in Afghanistan and Iraq have made the claim that the President cannot order conduct that is inconsistent with international law. Not only is the argument under-theorized, it runs counter to the best reading of the constitutional text, structure, and the history of American practice. A careful examination of the constitutional text, for example, shows that international law that does not take the form of a treaty or other authoritative adoption by the political branches will not enjoy supremacy effect. If international law cannot claim the status …

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Parliamentary Privileges As Façade: Political Reforms And Constitutional Adjudication, Shubhankar Dam Dec 2006

Parliamentary Privileges As Façade: Political Reforms And Constitutional Adjudication, Shubhankar Dam

Shubhankar Dam

Does the Indian Parliament have the power to expel its members under the "powers, privileges and immunities" guaranteed by the Constitution? The Indian Supreme Court was confronted with the question in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha and Others. Powers, privileges and immunities of the Indian Parliament are provided under Article 105. Supposedly based on an interpretation on Article 105(3), Sabharwal C.J., writing for the majority (Thakker J. concurring), concluded that Parliament did have the power to expel and that the same was subject to judicial review. Raveendran J. dissented. The particular privilege of the House of Commons, …

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Situating The Core And Structure Of Experience In Constitutional Interpretation: Judicial Reasoning Under The Indian Constitution, Shubhankar Dam Dec 2006

Situating The Core And Structure Of Experience In Constitutional Interpretation: Judicial Reasoning Under The Indian Constitution, Shubhankar Dam

Shubhankar Dam

This article is about texts: texts of legal provisions and texts of judgments. How much does the text of a legal provision tell us about its meaning? How much does a judgment tell us about the reasons for any given meaning of the text? Rather than in the abstract, the article unfolds both these questions in the context of the Indian Constitution. More specifically, it unfolds the questions in the context of an issue of great constitutional importance the Indian Supreme Court was confronted with in B. R. Kapur v. State of Tamil Nadu and Another. Can a person convicted …

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Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster Dec 2006

Regulating Land Use In A Constitutional Shadow: The Institutional Contexts Of Exactions, Mark Fenster

Mark Fenster

In a refreshingly clear and comprehensive decision issued towards the end of its 2004 Term, the Supreme Court explained in Lingle v. Chevron (2005) that the Takings Clause requires compensation only for the effects of a regulation on an individual’s property rights. Under the substantive due process doctrine, by contrast, courts engage in a deferential inquiry into both a regulation’s validity and the means by which the regulation attempts to meet the government’s objective. Lingle’s explanation appeared to cast doubt on the doctrinal foundation and reach of Nollan v. California Coastal Commission (1987) and Dolan v. City of Tigard (1994), …

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The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster Dec 2006

The Takings Clause, Version 2005: The Legal Process Of Constitutional Property Rights, Mark Fenster

Mark Fenster

The three takings decisions that the Supreme Court issued at the end of its October 2004 Term marked a stunning reversal of the Court’s efforts the past three decades to use the Takings Clause to define a set of constitutional property rights. The regulatory takings doctrine, which once loomed as a significant threat to the modern regulatory state, now appears after Lingle v. Chevron to be a relatively tame, if complicated, check on exceptional instances of regulatory abuse. At the same time, the Public Use Clause, formerly an inconsequential limitation on the state’s eminent domain authority, now appears ripe for …

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El Bloque De Constitucionalidad Ecuatoriano, Juan Carlos Riofrío Martínez-Villalba Dec 2006

El Bloque De Constitucionalidad Ecuatoriano, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

Las siguientes líneas glosan una importante Resolución de nuestro Tribunal Constitucional, que por primera vez esboza el difícil concepto de «bloque de constitucionalidad». Para hacerlo, el doctor Riofrío comienza narrando de forma sucinta los antecedentes del fallo, luego especifica cuáles fueron las principales consideraciones del Tribunal y finaliza ésta primera parte del artículo pergeñando, a la luz de la Resolución, la noción ecuatoriana de «bloque de constitucionalidad». Mas lo verdaderamente interesante de su trabajo viene a continuación, en el punto 4, donde señala algunas trascendentales implicaciones prácticas de la adopción de éste nuevo concepto. Por ejemplo: redimensiona la hermenéutica jurídica, …

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