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Articles 1 - 30 of 62
Full-Text Articles in Law
The Concept Of “Elderly Citizens” In The Indonesian Constitution: A Critical Analysis, Ari Wahyudi Hertanto, Satya Arinanto, Jufrina Rizal
The Concept Of “Elderly Citizens” In The Indonesian Constitution: A Critical Analysis, Ari Wahyudi Hertanto, Satya Arinanto, Jufrina Rizal
Indonesia Law Review
Human existence is the most important element of the law and the state. They contribute greatly to the growth and development of a nation. Despite their great contribution, all human beings will experience a gradual decrease in their physical and psychological capacity due to ageing. According to the latest Central Statistics Agency report, there exists 29.3 million elderly citizens in Indonesia. This figure is equivalent to 10.82% of the total population. To anticipate this demographic condition, the government ought to ensure the welfare of its elderly citizens in accordance with the mandate of the 1945 Constitution. However, the 1945 Constitution …
Reconstituting The United States: Could An Article V Convention Prevent The Next January 6?, Paul G. Rando
Reconstituting The United States: Could An Article V Convention Prevent The Next January 6?, Paul G. Rando
University of Cincinnati Law Review
No abstract provided.
The Constitutional Reshaping Of South Africa's Succession Laws, François Du Toit
The Constitutional Reshaping Of South Africa's Succession Laws, François Du Toit
Journal of Civil Law Studies
The South African Constitution of 1996 has had a significant im-pact on all the branches of South African law, including its succes-sion laws. The Constitution has transformatively reshaped im-portant aspects of South Africa's succession laws over the past two-and-a-half decades. This Article surveys the reshaping of two such aspects critically, namely (i) the extension of spousal inheritance under the Intestate Succession Act of 1987 and the Wills Act of 1953 as well as the extension of parental inheritance under the former statute; and (ii) the limitation of testamentary freedom. The afore-mentioned developments occurred by and large at the hands of …
Delegation At The Founding: A Response To Critics, Julian Davis Mortenson, Nicholas Bagley
Delegation At The Founding: A Response To Critics, Julian Davis Mortenson, Nicholas Bagley
Articles
This essay responds to the wide range of commentary on Delegation at the Founding, published previously in the Columbia Law Review. The critics’ arguments deserve thoughtful consideration and a careful response. We’re happy to supply both. As a matter of eighteenth-century legal and political theory, “rulemaking” could not be neatly described as either legislative or executive based on analysis of its scope, subject, or substantive effect. To the contrary: Depending on the relationships you chose to emphasize, a given act could properly be classified as both legislative (from the perspective of the immediate actor) and also executive (from the perspective …
Justice For All: Demanding Accessibility For Underrepresented Communities In The Law: A Roger Williams University Law Review, Roger Williams University School Of Law
Justice For All: Demanding Accessibility For Underrepresented Communities In The Law: A Roger Williams University Law Review, Roger Williams University School Of Law
School of Law Conferences, Lectures & Events
No abstract provided.
Taking Care With Text: "The Laws" Of The Take Care Clause Do Not Include The Constitution, And There Is No Autonomous Presidential Power Of Constitutional Interpretation, George Mader
Faculty Scholarship
“Departmentalism” posits that each branch of the federal government has an independent power of constitutional interpretation—all branches share the power and need not defer to one another in the exercise of their interpretive powers. As regards the Executive Branch, the textual basis for this interpretive autonomy is that the Take Care Clause requires the President to “take Care that the Laws be faithfully executed” and the Supremacy Clause includes the Constitution in “the supreme Law of the Land.” Therefore, the President is to execute the Constitution as a law. Or so the common argument goes. The presidential oath to “execute …
Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash
Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash
Indiana Law Journal
The incorporation of the Bill of Rights against the states by way of the Fourteenth Amendment raises a host of textual, historical, and doctrinal difficulties. This is true even if (especially if) we accept the Fourteenth Amendment as having made the original Bill of Rights binding against the states. Does this mean we have two Bills of Rights, one applicable against the federal government with a “1791” meaning and a second applicable against the state governments with an “1868” meaning? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward …
Systemic Racism In The U.S. Immigration Laws, Kevin R. Johnson
Systemic Racism In The U.S. Immigration Laws, Kevin R. Johnson
Indiana Law Journal
This Essay analyzes how aggressive activism in a California mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy.
Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme Court …
It’S All About Principle: How Patent Trolling, Over Broad Patents, Evergreening, And Patent Shelving Represent A Departure From The Patent Clause And How To Return To The Principle Of The Patent Clause, Morgan L. Stringer
Indian Journal of Law and Technology
This article explores differing patent abuses that reflect how current patent law has swung drastically away from the Patent Clause of the U.S. Constitution. The purpose of the Patent Clause is to ensure that inventors are given a limited monopoly in order to encourage innovation, or to “progress the useful arts and sciences.” There are many forms of patent abuse, but this article will explore patent trolls, overbroad patents, evergreening, and patent shelving as forms of patent abuse that reflect a departure from the Constitutional principle of progress in patent law. Each of these patent abuses hinders progress, so according …
Faq On The U.S. Archivist And The Future Of The Equal Rights Amendment, Center For Gender And Sexuality Law
Faq On The U.S. Archivist And The Future Of The Equal Rights Amendment, Center For Gender And Sexuality Law
Center for Gender & Sexuality Law
On Wednesday, September 21, 2022, the Senate will hold hearings on the nomination of Colleen Shogan as the new Archivist of the United States. This FAQ offers a short primer on what the Archivist does, her official role in the finalization of proposed amendments to the U.S. Constitution, including the Equal Rights Amendment (ERA), and the impact of Archivist action on the validity of the ERA.
Holmes V. Walton And Its Enduring Lessons For Originalism, Justin W. Aimonetti
Holmes V. Walton And Its Enduring Lessons For Originalism, Justin W. Aimonetti
Marquette Law Review
Originalism is nothing new. And the New Jersey Supreme Court’s 1780 decision in Holmes v. Walton shows it. In that case, the New Jersey Supreme Court disallowed a state law as repugnant to the state constitution because the law permitted a jury of only six to render a judgment. To reach that result, the court looked to the fixed, original meaning of the jury trial guarantee embedded in the state constitution, and it then constrained its interpretive latitude in conformity with that fixed meaning. Holmes thus cuts against the common misconception that originalism as an interpretive methodology is a modern …
Original(Ism) Sin, G. Alex Sinha
Original(Ism) Sin, G. Alex Sinha
St. John's Law Review
(Excerpt)
During President Trump’s term in office, the Senate confirmed nearly 250 of his federal judicial nominees, including 3 to the Supreme Court of the United States. That number amounts to nearly a third of the federal judiciary’s roughly 800 active members. By and large, the judges nominated by President Trump purport to apply some form of originalist constitutional interpretation or construction, though the subject of originalism featured perhaps most prominently at the confirmation hearings for Amy Coney Barrett, whom President Trump nominated in October of 2020 to replace Justice Ruth Bader Ginsburg. Whatever one thinks of the vast literature …
The White Supremacist Constitution, Ruth Colker
The White Supremacist Constitution, Ruth Colker
Utah Law Review
The United States Constitution is a document that, during every era, has helped further white supremacy. White supremacy constitutes a “political, economic and cultural system in which whites overwhelmingly control power and material resources, conscious and unconscious ideas of white superiority and entitlement are widespread, and relations of white dominance and non-white subordination are daily reenacted across a broad array of institutions and social settings.”1 Rather than understand the Constitution as a force for progressive structural change, we should understand it as a barrier to change.
From its inception, the Constitution enshrined slavery and the degradation of Black people by …
Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki
Tort Law Implications Of Compelled Physician Speech, Nadia N. Sawicki
Indiana Law Journal
Abortion-specific informed consent laws in many states compel physicians to communicate state-mandated information that is arguably inaccurate, immaterial, and inconsistent with their professional obligations. These laws face ongoing First Amendment challenges as violations of the constitutional right against compelled speech. This Article argues that laws compelling physician speech also pose significant problems that should concern scholars of tort law.
State laws that impose tort liability on physicians who refuse to communicate a state-mandated message often do so by deviating from foundational principles of tort law. Not only do they change the substantive disclosure duties of physicians under informed consent law, …
The Pledge Of Allegiance And Compelled Speech Revisited: Requiring Parental Consent, Caroline Mala Corbin
The Pledge Of Allegiance And Compelled Speech Revisited: Requiring Parental Consent, Caroline Mala Corbin
Indiana Law Journal
Since the Supreme Court decided West Virginia State Board of Education v. Barnette in 1943, free speech law has been clear: public schools may not force students to recite the Pledge of Allegiance. Nevertheless, in two states—Texas and Florida— students may decline to participate only with parental permission. The Eleventh Circuit Court of Appeals upheld the law on the grounds that the parental requirement furthered parents’ substantive due process right to control the upbringing of their children.
The Eleventh Circuit decision is flawed both in its understanding of the First Amendment right to be free of compelled speech and the …
Nifla And The Construction Of Compelled Speech Doctrine, Robert Post
Nifla And The Construction Of Compelled Speech Doctrine, Robert Post
Indiana Law Journal
Virginia State Board of Education v. Barnette. There are good and convincing explanations for the Court’s decision in Barnette, but the Court’s recent expansion of the doctrine, culminating in National Institute of Family & Life Advocates (NIFLA) v. Becerra, holds that compelled speech is in most instances “content-based” regulation requiring heightened judicial scrutiny.
Using examples ranging from professional malpractice to compulsory tax returns, this Article argues that the doctrinal rule of NIFLA is demonstrably incorrect. It suggests that the doctrinal category of “compelled speech” may itself be confused insofar as it imagines that all legal obligations to communicate are equally …
Compelled Disclosure And The Workplace Rights It Enables, Catherine Fisk
Compelled Disclosure And The Workplace Rights It Enables, Catherine Fisk
Indiana Law Journal
Worker and consumer protection laws often rely on the regulated entity to notify workers or consumers of their legal rights because it is effective and efficient to provide information at the time and place where it is most likely to be useful. Until the Supreme Court ruled in NIFLA v. Becerra in 2018 that a California law regulating crisis pregnancy centers was an unconstitutional speaker-based, contentdiscriminatory regulation of speech, mandatory disclosure laws were constitutionally uncontroversial economic regulation. Yet, the day after striking down a disclosure law in NIFLA, the Court in Janus v. AFSCME Council 31 expanded the right of …
States May Statutorily Bind Presidential Electors, The Myth Of National Popular Vote, The Reality Of Elector Unit Rule Voting And Old Light On Three-Fifths Of Other Persons, William Josephson
University of Miami Law Review
This Article discusses the United States Supreme Court’s July 6, 2020 decision in Chiafalo v. Washington State as it impacts the most in-depth analysis yet published of the proposed National Popular Vote (“NPV”) Interstate Compact. NPV purports to provide for popular vote election of a President of the United States even if the winner of the popular vote did not win the Electoral College. It concludes that NPV cannot accomplish its purported purpose. The article also criticizes a recent article proposing dividing each state’s electors vote in accordance with the popular vote proportions in each such state instead of, as …
The Pandemic And Privacy: The Global Culture Of Intrusion, Jon L. Mills, Lucca Viana, Danielle Black
The Pandemic And Privacy: The Global Culture Of Intrusion, Jon L. Mills, Lucca Viana, Danielle Black
Legislation and Policy Brief
No abstract provided.
Competitor Standing To The Rescue: Saving The Emoluments Clause, Demitri Dawson
Competitor Standing To The Rescue: Saving The Emoluments Clause, Demitri Dawson
Legislation and Policy Brief
No abstract provided.
Traditionally Exclusive Limitations In The Digital Era:The Limitations On The State Action Doctrine And Its Inability To Protect Personal Freedoms From Big Tech, Richard Haygood
Lincoln Memorial University Law Review Archive
The intersection of censorship, free speech, and big tech is area of growing concern and interest. Every year, millions of users turn to social media platforms for myriad reasons, whether it be for the latest headline news, to pick up a recipe for dinner, or to share thoughts, feelings, or opinions. Yet despite the prevalence and importance of both Big Tech and social media platforms within our daily lives, there is very little anyone can do when their voice is silenced in the digital world. This Article focuses on one method claimants have attempted to use in order to find …
The Role Of Emotion In Constitutional Theory, J. Joel Alicea
The Role Of Emotion In Constitutional Theory, J. Joel Alicea
Notre Dame Law Review
Although the role of emotion in law has become a major field of scholarship, there has been very little attention paid to the role of emotion in constitutional theory. This Article seeks to fill that gap by providing an integrated account of the role of emotion within the individual, how emotion affects constitutional culture, and how constitutional culture, properly understood, should affect our evaluation of major constitutional theories.
The Article begins by reconstructing one of the most important and influential accounts of emotion in the philosophical literature: that of Thomas Aquinas. Because Aquinas’s description of the nature of emotion accords …
The Consent Of The Governed: Constitutionalism Of The Levellers And Its Influence On Anglo-American Political Discourse, Nathan B. Gilson
The Consent Of The Governed: Constitutionalism Of The Levellers And Its Influence On Anglo-American Political Discourse, Nathan B. Gilson
Doctoral Dissertations and Projects
More fully understanding the Levellers suggests a new framework for understanding Anglo-American constitutionalism and jurisprudence. There was a logical progression in their constitutional thought, by which the exigent developments of the 1640s conflict continually pushed the Levellers to articulate new constitutional propositions. It eventually led them to a fully developed contractual theory for the origins of society based on the continuing consent of the People, including the rights to revolution and resistance, within a natural rights framework. The Levellers argued for limitations on the sovereignty of the government by the People, as opposed to the position of the Monarchists, Independents, …
Constitutional Interpretation: Have The Methods Used By The Supreme Court Changed Over Time?, Morgan A. Matney
Constitutional Interpretation: Have The Methods Used By The Supreme Court Changed Over Time?, Morgan A. Matney
Chancellor’s Honors Program Projects
No abstract provided.
Protecting A Woman’S Right To Abortion During A Public Health Crisis, San Juanita Gonzalez
Protecting A Woman’S Right To Abortion During A Public Health Crisis, San Juanita Gonzalez
The Scholar: St. Mary's Law Review on Race and Social Justice
As COVID-19 infected our nation, states were quick to issue executive orders restricting various aspects of daily life under the pretense of public safety. It was clear at the outset that certain civil liberties were going to be tested. Among them, the constitutional right to an abortion.
This comment explores Texas’ response to the COVID-19 pandemic and the limitations it imposed on abortion access. It will attempt to address the legitimacy of the “public health concerns” listed in executive orders issued throughout numerous states and will discuss the pertinent legal framework and judicial scrutiny to apply.
According to the Fifth …
Public Policy And Religion In The Pandemic: U.S. Constitution And The First Amendment, Stephen Covell, Diane Riggs, Cameron Borg
Public Policy And Religion In The Pandemic: U.S. Constitution And The First Amendment, Stephen Covell, Diane Riggs, Cameron Borg
Modules for Teaching Pandemic Response and Religion in the USA
The following teaching module is designed for high school and college level instructors who seek to teach a lesson on the impact the COVID-19 pandemic had on the relationship between church and state. The teaching module features a lesson plan, case studies, and assignments that can be incorporated as the instructor sees fit. This teaching module was created by Western Michigan University's Department of Comparative Religion.
The Declaration Of Independence, Constitution, And Slavery, Johnny B. Davis
The Declaration Of Independence, Constitution, And Slavery, Johnny B. Davis
Helm's School of Government Conference - American Revival: Citizenship & Virtue
The paper address the nature of the principles of the Declaration and the Declaration's relationship to the Constitution and how these related to slavery. The argument is that the Declaration did stand for universal equality of the individual before God and the law and therefore its principles condemned slavery. The Constitution did not embrace slavery even though it failed to ban slavery but did set the foundation for the end of slavery.
Fellowship Is Fundamental To A Flourishing Community, Drew Varner
Fellowship Is Fundamental To A Flourishing Community, Drew Varner
Helm's School of Government Conference - American Revival: Citizenship & Virtue
No abstract provided.
Republication Liability On The Web, Jeffrey Standen
Republication Liability On The Web, Jeffrey Standen
Marquette Law Review
The tort of defamation evolved in an era where defamatory speech was published in books, magazines, newspapers, or other printed documents. The doctrines that are antecedent to the tort, such as publication, fault, defamation per se, presumed damages, and republication liability, similarly presumed that most defamation would appear in written form in a published work. Similarly, the significant limitations on defamation liability that were produced by a succession of Supreme Court constitutional precedent, including restrictions on prior restraint, heightened fault standards, expanded “public” classes, the “fact/opinion” dichotomy, and the “truth/substantial truth” burden shifting, also were based on a publishing world …
The Neuroscience Of Qualified Immunity, Gary S. Gildin
The Neuroscience Of Qualified Immunity, Gary S. Gildin
Dickinson Law Review (2017-Present)
Qualified immunity not only absolves public officials from accountability for the damages caused when they deprive a citizen of their constitutional rights; by virtue of companion doctrines shielding governmental entities from liability, conferral of immunity leaves the victim to bear the loss. Therefore, it is essential that the contours of immunity be carefully calibrated to align with its intended purposes.
The United States Supreme Court has continuously expanded immunity to protect the exercise of discretion where, albeit acting in violation of constitutional norms, the official could have reasonably believed their conduct was constitutional. This Article exposes the implicit assumptions as …