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Selected Works

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Constitutional law

2016

Articles 1 - 28 of 28

Full-Text Articles in Law

Trump's Supreme Court, Alan E. Garfield Dec 2016

Trump's Supreme Court, Alan E. Garfield

Alan E Garfield

No abstract provided.

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Some Advice For President-Elect Donald Trump, Alan E. Garfield Nov 2016

Some Advice For President-Elect Donald Trump, Alan E. Garfield

Alan E Garfield

No abstract provided.

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Speech And Strife, Robert L. Tsai Nov 2016

Speech And Strife, Robert L. Tsai

Robert L Tsai

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …

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Test Your Knowledge Of Church And State, Alan E. Garfield Sep 2016

Test Your Knowledge Of Church And State, Alan E. Garfield

Alan E Garfield

No abstract provided.

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Take Our Quiz About Constitutional Law, Judith L. Ritter Sep 2016

Take Our Quiz About Constitutional Law, Judith L. Ritter

Judith L Ritter

No abstract provided.

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Equality: A Test On Equal Protection, Alan E. Garfield Sep 2016

Equality: A Test On Equal Protection, Alan E. Garfield

Alan E Garfield

No abstract provided.

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Implied Vs. Fundamental Freedom: A Test, Alan E. Garfield Sep 2016

Implied Vs. Fundamental Freedom: A Test, Alan E. Garfield

Alan E Garfield

No abstract provided.

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A Quiz On Federal Power And States’ Rights, Alan E. Garfield Sep 2016

A Quiz On Federal Power And States’ Rights, Alan E. Garfield

Alan E Garfield

No abstract provided.

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Constitutional Conundrums, Alan E. Garfield Sep 2016

Constitutional Conundrums, Alan E. Garfield

Alan E Garfield

No abstract provided.

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A Plea For Constitutional Balance, Stephen M. Feldman Aug 2016

A Plea For Constitutional Balance, Stephen M. Feldman

Stephen M. Feldman

The fundamentalist approach of the conservative bloc of Justices on the U.S. Supreme Court in regards to corporate spending on political campaigns skews government processes and generates unintended consequences.  This paper discusses the historical approach of the Framers to invigorate the new republican democratic government while protecting individual liberties by separating these into public and private spheres of activity.

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Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel Aug 2016

Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel

Randy J Kozel

More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence. This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …

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Exploring The Affective Constitution, Kathryn Abrams Aug 2016

Exploring The Affective Constitution, Kathryn Abrams

Kathryn Abrams

No abstract provided.

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Payment Finality And Discharge In Funds Transfers, Benjamin Geva Jul 2016

Payment Finality And Discharge In Funds Transfers, Benjamin Geva

Benjamin Geva

The article explores the occurrence of "final payment" in funds transfers in the form of "accountability" by a bank instructed to pay to a payee/beneficiary. Both the accountability of the drawee/payor bank in a check-collection debit-pull system and that of the beneficiary's bank in a wire-transfer credit-push system are discussed. The article further examines the relationship between "final payment" and the discharge of an obligation paid by means of the "funds transfer." It analyzes relevant provisions of Articles 3, 4, and 4A of the Uniform Commercial Code, sometimes against the background of general common law principles. The article proposes minor …

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Make It Count: Your Vote Is Vital In Determining The Future Of The Supreme Court, Alan E. Garfield Jul 2016

Make It Count: Your Vote Is Vital In Determining The Future Of The Supreme Court, Alan E. Garfield

Alan E Garfield

No abstract provided.

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Law And Religion Collide: Supreme Court Punts High-Profile Case Concerning The Legality Of Ensuring Female Contraception Insurance In The Face Of Religious Objections, Alan E. Garfield May 2016

Law And Religion Collide: Supreme Court Punts High-Profile Case Concerning The Legality Of Ensuring Female Contraception Insurance In The Face Of Religious Objections, Alan E. Garfield

Alan E Garfield

No abstract provided.

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Amendment Creep, Jonathan L. Marshfield Apr 2016

Amendment Creep, Jonathan L. Marshfield

Jonathan Marshfield

To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution’s text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level, courts have …

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Constitutional Personhood, Zoe D. Robinson Apr 2016

Constitutional Personhood, Zoe D. Robinson

Zoe Robinson

Over the past decade, in a variety of high-profile cases, the Supreme Court has grappled with difficult questions as to the constitutional personhood of a variety of claimants. Of most note are the recent corporate constitutional personhood claims that the protections of the First Amendment Speech and Religion Clauses extend to corporate entities. Corporate constitutional personhood, however, is only a small slice of a broader constitutional question about who or what is entitled to claim the protection of any given constitutional right. Beyond corporations, courts are being asked to answer very real questions about a person’s constitutional status: Do aliens …

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Law As Interpretation, Charles W. Collier Apr 2016

Law As Interpretation, Charles W. Collier

Charles W. Collier

In this Article, I shall trace out separate professional narratives in common law, constitutional law, and in legal cases turning on the distinction between community and society (Part III). But first I should like to situate these legal-professional narratives within a broader interdisciplinary framework (Part II).

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Advice And Consent: The Power Struggle Behind Merrick Garland’S Supreme Court Nomination, Alan E. Garfield Apr 2016

Advice And Consent: The Power Struggle Behind Merrick Garland’S Supreme Court Nomination, Alan E. Garfield

Alan E Garfield

Editorial discussing nomination of Merrick Garland to the Supreme Court.

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A Roundtable Discussion With Stephen L. Carter & Michael J. Gerhardt, Thomas E. Baker Feb 2016

A Roundtable Discussion With Stephen L. Carter & Michael J. Gerhardt, Thomas E. Baker

Thomas E. Baker

Transcript of a discussion regarding the United States Supreme Court, the Supreme Court justices and justice nominees, the Senate process for confirming nominees and related issues such as fitness to serve on the court and judicial activism.

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Pre-Constitutional Law And Constitutions: Spanish Colonial Law And The Constitution Of Cádiz, M C. Mirow Feb 2016

Pre-Constitutional Law And Constitutions: Spanish Colonial Law And The Constitution Of Cádiz, M C. Mirow

M. C. Mirow

This article contributes to the intellectual and legal history of this constitutional document. It also provides a close study of how pre-constitutional laws are employed in writing constitutions. It examines the way Spanish colonial law, known as "derecho indiano" in Spanish, was used in the process of drafting the Constitution and particularly the way these constitutional activities and provisions related to the Americas. The article asserts that this pre-constitutional law was used in three distinct ways: as general knowledge related to the Americas and their institutions; as a source for providing a particular answer to a specific legal question; and …

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Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow Feb 2016

Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow

M. C. Mirow

In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy …

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Labor Unions And Corporations Both Play Their Vital Roles, Alan E. Garfield Jan 2016

Labor Unions And Corporations Both Play Their Vital Roles, Alan E. Garfield

Alan E Garfield

Discussion of Supreme Court case Friedrichs v. California Teachers Association.

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Land Use Regulation (2d Ed.), Stewart E. Sterk, Eduardo M. Penalver, Sara C. Bronin Dec 2015

Land Use Regulation (2d Ed.), Stewart E. Sterk, Eduardo M. Penalver, Sara C. Bronin

Sara C. Bronin

This casebook offers a concise, user-friendly presentation of land use law which incorporates a focus on critical thinking and practice throughout. The casebook devotes an entire chapter to complex and realistic scenarios that provide students an opportunity to bring to bear what they have learned throughout the semester to solve challenging legal and strategic problems. New materials in the second edition ensure that students will become familiar with the latest trends in land use law. Attached is the table of contents.

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No Free Lunch, But Dinner And A Movie (And Contraceptives For Dessert)?, John C. Eastman Dec 2015

No Free Lunch, But Dinner And A Movie (And Contraceptives For Dessert)?, John C. Eastman

John C. Eastman

The Hobby Lobby decision incited a wave of vitriolic responses, but it is important to understand what the Court actually held before assessing whether such a response was warranted. After reviewing the circumstances leading to the Patient Protection and Affordable Care Act and its accompanying regulations, it is clear that the Court’s legal analysis was correct. Exploring the criticisms from the media and the legal academy in light of that fact reveals the current dispute in the United States over the very nature and purpose of government. In addition scholars and citizens should note the several questions left unaddressed in …

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The Power To Control Immigration Is A Core Aspect Of Sovereignty, John C. Eastman Dec 2015

The Power To Control Immigration Is A Core Aspect Of Sovereignty, John C. Eastman

John C. Eastman

Where in our constitutional system is the power to regulate immigration assigned? Professor Ilya Somin argues that the power to regulate immigration is not a power given to Congress because it is not enumerated. But I think it is so clearly a power given to Congress and that such was so well understood at the time of our founding that the Constitution did not even need to specify it. Even so, I think the Constitution does specify it. The notion that the power to regulate immigration is not contained within the power of naturalization is an anachronistic view of the …

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The Role Of Religiously Affiliated Law Schools In The Renewal Of American Democracy, Bruce Ledewitz Dec 2015

The Role Of Religiously Affiliated Law Schools In The Renewal Of American Democracy, Bruce Ledewitz

Bruce Ledewitz

American Democracy has broken down.  This crisis was on dramatic display in the 2016 Presidential Campaign.  Americans are resentful, distrustful and pessimistic.  We find it easy to blame “the other side” for the deadlock, mendacity and irresponsibility in American public life.  By virtue of their public role, American law schools have an obligation to address the breakdown in order to understand and try to ameliorate it.  That task is currently unfulfilled by law schools individually and collectively, which are distracted by marketing and pedagogy.  Religious law schools, which retain the traits of normative discourse, mission, Truth and tragic limit to …

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Unsuspecting, David Schraub Dec 2015

Unsuspecting, David Schraub

David Schraub

All laws classify, but not all classifications are created equal. Under contemporary Fourteenth Amendment doctrine, certain classifications are “suspect”, triggering heightened judicial review and often rendering the targeted legislation unconstitutional. Because the alternative rational basis test is so deferential, the question over which sorts of classifications are “suspect” may be the single most important — and most discussed — issue in equal protection doctrine. Yet amidst all the talk about how a group gains recognition as a “suspect class”, there has been virtually no discussion about the seemingly obvious corollary: how a group loses its status as one. After all, …

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