Law Commons^™

Essentially Elective: The Law And Ideology Of Restricting Abortion During The Covid-19 Pandemic, B. Jessie Hill

Faculty Publications

During the COVID-19 pandemic, several states adopted orders temporarily suspending elective surgeries and procedures. A subset of those states moved to limit abortions under those orders, provoking emergency litigation to keep abortion clinics open and functioning. No similar lawsuits have been necessary to protect access to other time-sensitive medical procedures. So why was abortion singled out for disparate treatment?

This Essay provides an overview of the litigation that ensued in the wake of some states’ attempts to limit abortion access under the authority of executive orders banning non-essential or elective procedures. It argues that abortion was singled out in two …

What The Constitution Means By “Duties, Imposts, And Excises”—And "Taxes" (Direct Or Otherwise), Robert G. Natelson

Case Western Reserve Law Review

This Article recreates the original definitions of the U.S. Constitution’s terms “tax,” “direct tax,” “duty,” “impost,” “excise,” and “tonnage.” It draws on a greater range of Founding-Era sources than accessed heretofore, including eighteenth-century treatises, tax statutes, and literary sources, and it corrects several errors made by courts and previous commentators. It concludes that the distinction between direct and indirect taxes was widely understood during the Founding Era and that the term “direct tax” was more expansive than commonly realized.

The Article identifies the reasons the Constitution required that direct taxes be apportioned among the states by population. It concludes that …

Book Review: Michael Stokes Paulsen And Luke Paulsen, The Constitution: An Introduction, Shlomo Slonim

Case Western Reserve Law Review

Anyone interested in learning more about the Constitution, its interpretation and development over the past two-plus centuries, and which issues are today the most critically divisive, will find this work to be a superb and eminently readable introduction. It is instructive and enlightening without being ponderous. The prose is crisp and straightforward, unburdened by legal jargon. There are no footnotes or endnotes. And the reader requires no legal dictionary to appreciate the thrust of the discussion at each point.

Resistance To Constitutional Theory: The Supreme Court, Constitutional Change, And The "Pragmatic Moment", B. Jessie Hill

Faculty Publications

This Article approaches the law-politics divide from a new angle. Drawing on the insights of literary theory, this Article argues that every act of interpretation, including constitutional interpretation, inevitably draws not only on text but also on context, and that the relevant context extends beyond both the written document and the historical context of its origination. This understanding derives from speech-act theory and from postmodern literary theory. As Paul de Man argues in his seminal essay, The Resistance to Theory, moreover, the act of interpretation always encompasses a “pragmatic moment” that undermines the effort to attain perfect theoretical coherence. Applying …

The Imaginary Connection Between The Great Law Of Peace And The United States Constitution: A Reply To Professor Schaaf, Erik M. Jensen

Faculty Publications

This article challenges the politically correct theory advanced in a 1989 article by Gregory Schaaf, “From the Great Law of Peace to the Constitution of the United States: A Revision of America’s Democratic Roots.” Professor Schaaf argued that large parts of the U.S. Constitution were based on the Great Law of Peace, the founding document of the Iroquois Confederacy. This article points to the lack of primary authority supporting such a counterintuitive proposition and questions the likelihood that Iroquois principles could have silently influenced American founders. Finally, the article questions whether it is desirable to try to further the status …

The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski

Faculty Publications

This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8.

The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and …

Note: Legal Excisions: The Rights Of Foreigners In Japan, Timothy Webster

Faculty Publications

This article examines various moments in the constitutional rights of foreigners in Japan. Beginning with the drafting of the Japanese Constitution, it shows how Japanese members of the drafting committee did not passively accept whatever their American counterparts “foisted” on them, but quite deliberately sculpted and limited the reach of the Constitution through word choice and selective translation. It then examines several lawsuits, from the 1970s to the 2000s, where foreigners have asserted various rights in Japanese courts. In the absence of constitutional rights, foreigners must rely on Japanese statutory law, guided by international law, to buttress their claims to …

United States Supreme Court: 2001 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

United States Supreme Court: 2000 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

United States Supreme Court: 1999 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

United States Supreme Court: 1998 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

United States Supreme Court: 1997 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

United States Supreme Court: 1995 & 1996 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

United States Supreme Court: 1993-94 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

United States Supreme Court: 1991-92 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

United States Supreme Court: 1990-91 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

U.S. Supreme Court: The 1988-1989 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

U.S. Supreme Court: The 1987-88 Term (Part Ii), Paul C. Giannelli

Faculty Publications

No abstract provided.

U.S. Supreme Court: The 1987-88 Term (Part I), Paul C. Giannelli

Faculty Publications

No abstract provided.

U.S. Supreme Court: The 1986-87 Term (Part Ii), Paul C. Giannelli

Faculty Publications

No abstract provided.

U.S. Supreme Court: The 1986-87 Term (Part I), Paul C. Giannelli

Faculty Publications

No abstract provided.

U.S. Supreme Court: The 1983-84 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

U.S. Supreme Court: 1982-83 Term: Part I, Paul C. Giannelli

Faculty Publications

No abstract provided.

U.S. States Supreme Court: 1982-83 Term: Partii, Paul C. Giannelli

Faculty Publications

No abstract provided.

The United States Supreme Court: The 1978-79 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Ohio Bill Of Rights, Paul C. Giannelli

Faculty Publications

No abstract provided.