Law Commons^™

Feminizing Capital: A Corporate Imperative, Darren Rosenblum

Elisabeth Haub School of Law Faculty Publications

This Article argues that Norway’s Corporate Board Quota Law (“CBQ”) fosters a productive symbiosis between the public and private spheres. Recent studies indicate that higher numbers of women in executive positions result in stronger rates of corporate return on equity (“ROE”). Countries with higher levels of women's political representation also tend to have higher levels of economic growth. Increasing women's workforce participation outside the home can drive overall economic growth. These factors prompted the CBQ's proponents to argue for the economic imperative of women's corporate leadership. The CBQ will not only ameliorate gender inequality, but will bring new life to …

R. V. Ha: Upholding General Warrants Without Asking The Right Questions, Steve Coughlan

Articles, Book Chapters, & Popular Press

To date, in considering general warrants, courts have been failing even to think about a distinction which ought to be seen as essential. The distinction arises in connection with the requirement in section 487.01 (l)(c) of the Criminal Code that a general warrant is only available when no other provision in any statute could authorize the search. In R. v. Ha, reported ante p. 24, the Ontario Court of Appeal notes that: The simple fact is that there is no provision in the Code, the CDSA, or in any other federal statute that would authorize an unlimited number of covert …

Substance Or Illusion - The Dangers Of Imposing A Standing Threshold, Amanda Leiter

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Racial Exhaustion, Darren Lenard Hutchinson

UF Law Faculty Publications

Contemporary political and legal discourse on questions of race unveils a tremendous perceptual gap among persons of color and whites. Opinion polls consistently demonstrate that persons of color commonly view race and racial discrimination as important factors shaping their opportunities for economic and social advancement. Whites, on the other hand, often discount race as a pertinent factor in contemporary United States society. Consequently, polling data show that whites typically reject racial explanations for acute disparities in important socio-economic indicators, such as education, criminal justice, employment, wealth, and health care. Echoing this public sentiment, social movement actors, politicians, and the Supreme …

Giles V. California: Avoiding Serious Damage To Crawford's Limited Revolution, Robert P. Mosteller

Faculty Publications

No abstract provided.

Can Constitutionalism, Secularism And Religion Be Reconciled In An Era Of Globalization And Religious Revival?, Michel Rosenfeld

Faculty Articles

No abstract provided.

Legislative Supremacy In The United States?: Rethinking The Enrolled Bill Doctrine, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article revisits the “enrolled bill” doctrine which requires courts to accept the signatures of the Speaker of the House and President of the Senate on the “enrolled bill” as unimpeachable evidence that a bill has been constitutionally enacted. It argues that this time-honored doctrine has far-reaching ramifications that were largely overlooked in existing discussions. In addition to reexamining the soundness of this doctrine’s main rationales, the Article introduces two major novel arguments against the doctrine. First, it argues that the doctrine amounts to an impermissible delegation of both judicial and lawmaking powers to the legislative officers of Congress. Second, …

Second Amendment Plumbing After Heller: Of Incorporation, Standards Of Scrutiny, Well-Regulated Militias And Criminal Street Gangs, Lawrence Rosenthal

Lawrence Rosenthal

The decision of the United States Supreme Court in District of Columbia v. Heller ended one debate about the Second Amendment while beginning another.

Prior to Heller, the principal point on which courts and scholars had joined issue was whether the Second Amendment secures an individual right to bear arms or a right to participate in an organized militia. In Heller, the Court came down on the individual-rights side while resolving little else about the extent to which the Second Amendment will constrain the power to regulate firearms. Among the many questions left for future litigation, the two most important …

Free At Last! Anti-Subordination And The Thirteenth Amendment, Rebecca Zietlow

Rebecca E Zietlow

Notwithstanding the powerful symbolism that liberty has in the American psyche, liberty is largely absent from our late Twentieth Century understanding of civil rights, which instead is based in the Equal Protection Clause and its promise of formal equality. People of color and women of every race have made significant advances under the Equal Protection model of equality, but they continue to lag behind whites and men under virtually every economic index. This paper argues for an alternative model of equality, an anti-subordination model, which allows decision-makers to focus on the material conditions that contribute to inequality in our society, …

The New Originalism Meets The Fourteenth Amendment: Original Public Meaning And The Problem Of Incorporation, Lawrence Rosenthal

Lawrence Rosenthal

This paper, prepared for a symposium on the Bill of Rights and the Fourteenth Amendment at the University of San Diego's Institute for Constitutional Originalism, examines the historical case for incorporation within the Fourteenth Amendment of the rights in first eight amendments to the Constitution in light of the recent turn in thinking about originalist methods of constitutional interpretation. In recent decades, the historical case for incorporation has made something of a comeback, resting on strong evidence that many of the key framers of the Fourteenth Amendment considered the first eight amendments to be among the privileges and immunities of …

Original Intention And Public Meaning In Constitutional Interpretation, Richard Kay

Richard Kay

In recent years academic explanations of the originalist approach to constitutional interpretation have shifted the relevant inquiry from the subjective intent of the constitution-makers to the "original public meaning" of the Constitution's words. This article is a critical analysis of that development. In the actual course of adjudication by honest and competent judges either method should usually yield the same result. The reliance on public meaning, however, distracts the interpreter from the connection between the normative force of the Constitution and the founding events, a link that is essential to the legitimacy of constitutional judicial review. In the hands of …

Just Not Who We Are: A Critique Of Common Law Constitutionalism, Andrew C. Spiropoulos

Andrew C. Spiropoulos

No abstract provided.

Wealth V. Democracy: The Unfulfilled Promise Of The Twenty-Fourth Amendment, David A. Schultz

David A Schultz

The adoption of the Twenty-Fourth Amendment banning poll taxes in federal elections was intended to protect franchise rights and increase voter turnout. However, since its adoption and initial use in Harman v. Forssenius, it has yet to be successfully invoked to invalidate any practice, most recently voter photo IDs. This article seeks to resurrect the Twenty-Fourth Amendment and to make the case for a broader interpretation of it. Specifically, the Article seeks to disconnect the poll tax from a narrow reading of its legacy during the Jim Crow era when its primary purpose was to disenfranchise African-Americans. Instead, the poll …

Unitary, Executive, Or Both?, John C. Yoo

John C Yoo

This essay argues that the “unitary executive” of the American Constitution includes both a procedural component (the President may remove subordinate officers) and a substantive component (the President possesses unenumerated powers through Article II’s vesting of the executive power). It reviews The Unitary Executive, by Professors Steven Calabresi and Christopher Yoo, which maintains that no President has consented to limitations on his authority to direct and remove subordinate officials. It praises their comprehensive effort to examine each presidential administration, but finds that the survey should have focused more attention on moments, such as Franklin Roosevelt’s acceptance of the independence of …

The Unexceptionalism Of Evolving Standards, Corinna Barrett Lain

Corinna Lain

Conventional wisdom is that outside the Eighth Amendment context, the Supreme Court does not engage in the sort of explicitly majoritarian state nose-counting for which the “evolving standards of decency” doctrine is famous. Yet this impression is simply inaccurate. Across a stunning variety of civil liberties contexts, the Court routinely—and explicitly—bases constitutional protection on whether a majority of states agree with it. This Article examines the Supreme Court’s reliance on the majority position of the states to identify constitutional norms, then turns to the qualifications, explanations, and implications of state polling as a larger doctrinal phenomenon. While the past few …

The Duty Of Treatment: Human Rights And The Hiv/Aids Pandemic, Noah B. Novogrodsky

Noah B Novogrodsky

This article argues that the treatment of HIV and AIDS is spawning a juridical, advocacy and enforcement revolution. The intersection of AIDS and human rights was once characterized almost exclusively by anti-discrimination and destigmatization efforts. Today, human rights advocates are demanding life-saving treatment and convincing courts and legislatures to make states pay for it. Using a comparative Constitutional law methodology that places domestic courts at the center of the struggle for HIV treatment, this article shows how the provision of AIDS medications is reframing the right to health and the implementation of socio-economic rights. First, it locates an emerging right …

Lincoln And Habeas: Of Merryman, Milligan, And Mccardle, John C. Yoo

John C Yoo

This essay examines the costs of judicial intervention in wartime policy through the lens of three Civil War cases - Ex parte Merryman, Ex parte Milligan, and Ex parte McCardle. In Merryman, Chief Justice Taney held that President Lincoln’s suspension of the writ of habeas corpus was unconstitutional. In Milligan, the Court held that military commissions had no jurisdiction over civilians in Northern states, where the courts were open and their process unobstructed. Although both opinions provide stirring rhetoric about the vitality of constitutional rights during wartime, they became largely irrelevant. President Lincoln refused to obey the Court and continued …

Administration Of War, John C. Yoo

John C Yoo

This essay asks whether the Constitution’s implicit grant of the removal power to the President provides control over the administrative agencies by examination of civil-military relations under the administration of President George W. Bush. Control over the military is one of the most significant, but also understudied, aspects of administrative law. The U.S. Armed Services are the nation’s first administrative agencies, predating the Constitution itself. The President has greater freedom to remove and command military officers than over the personnel of any civilian agency. Yet, greater constitutional command over the military agencies has not produced greater presidential control. Since the …

With A Little Help From The Courts: The Promises And Limits Of Weak Form Judicial Review Of Social And Economic Rights, Adam Shinar

Adam Shinar

This is a review of Mark Tushnet's "Weak Courts, Strong Rights: Judicial Review and Social Welfare Rights in Comparative Constitutional Law". The review outlines the main arguments in the book and then moves to elaborate on two preconditions, which, I think, are necessary for Tushnet's project to succeed – the existence of a strong civil society and an institutional willingness to implement social welfare rights. In addition, this review seeks to situate the book within Tushnet's broader constitutional theory project. In particular, the review attempts to reconcile this work with Tushnet's "Taking the Constitution Away from the Courts", a work …

Step Out Of The Car: License, Registration, And Dna Please, Brian Gallini

Brian Gallini

Help Wanted: Seeking One Good Appellate Brief That Forces The Arkansas Supreme Court To Clarify Its Criminal Discovery Jurisprudence, Brian Gallini

Brian Gallini

Why The Governor General Matters, Brian Slattery

Brian Slattery

No abstract provided.

The Where And Why Of Intellectual Privacy, Marc J. Blitz

Marc J. Blitz

No abstract provided.

Homelessness And The Charter Of Rights, Mel Cousins

Mel Cousins

There have, to date, been relatively few cases concerning homelessness and the Canadian Charter of Rights. Yet the rights set out in the Charter, such as the right to freedom of expression (s. 2(b), the right to life, liberty and the security of person (s. 7) and equality rights (s. 15) should all play an important role in protecting the position of a disadvantaged group such as the homeless. This article looks at some of the main cases concerning homelessness and the Charter (part I). It then goes on to look at the constitutional case law of the United States …

Drafting Nepal's Language Policy, Sujit Choudhry

Sujit Choudhry

Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet

Jud Mathews

Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of …

Fitting Punishment, Juliet P. Stumpf

Juliet P Stumpf

Proportionality is conspicuously absent from the legal framework for immigration sanctions. Immigration law relies on one sanction – deportation – as the ubiquitous penalty for any immigration violation. Neither the gravity of the violation nor the harm that results bears on whether deportation is the consequence for an immigration violation. Immigration law stands alone in the legal landscape in this respect. Criminal punishment incorporates proportionality when imposing sentences that are graduated based on the gravity of the offense; contract and tort law provide for damages that are graduated based on the harm to others or to society. This Article represents …

Three Terms Of The Kennedy Court: Projecting The Future Of Constitutional Doctrine, Kenneth M. Murchison

Kenneth M Murchison

This Article evaluates the likely direction of constitutional doctrine now that Justice Kennedy is clearly the pivotal justice on most controversial constitutional issues. The article begins with a summary of Justice Kennedy’s positions on a range of constitutional issues and of his influence on constitutional doctrine in the decade before Chief Justice Roberts and Justice Alito joined the Court. It then examines the closely divided decisions of the last three terms and projects how constitutional doctrine is likely to change for the foreseeable future. Finally, it considers the extent to which stare decisis, changes in Justice Kennedy’s thought, and the …