Judicial Independence: Playing Politics With The Constitution, Suzanna Sherry
Oct 2018
Judicial Independence: Playing Politics With The Constitution, Suzanna Sherry
Suzanna Sherry
No abstract provided.
“Collusion” And The Criminal Law, Robert M. Sanger
Sep 2018
“Collusion” And The Criminal Law, Robert M. Sanger
Robert M. Sanger
The journalistic use of the term “collusion” in the air; it might be a good time for a refresher. This article will make an effort to cover the general framework of federal crimes in which a potential target (i.e., a would be defendant if a case were filed) had a guilty mind but did not directly do the ultimate act. Looked upon from the “collusion” perspective, it is a situation where a person did something with others in which some illegal result was attempted or accomplished by some or all of the participants. Broadly construed, inchoate crimes would include attempt, …
A New Philosophy In The Supreme Court, Robert M. Sanger
Aug 2018
A New Philosophy In The Supreme Court, Robert M. Sanger
Robert M. Sanger
This is a positive article about the soon-to-be-newlyminted United States Supreme Court. No, this is not written by a guest columnist and, yes, the present author still holds progressive views regarding criminal justice. Assuming the Supreme Court and other branches of government continue to function – even if in less than an optimal fashion – we, as lawyers, have to work with what we have. We have a conservative Supreme Court with, presumably, conservative principles, and that is with which we must work. One of the characteristics often seen in individual Supreme Court Justices is the tendency to rise above …
The Fog Of Certainty, Robert B. Ahdieh
Jun 2018
The Fog Of Certainty, Robert B. Ahdieh
Robert B. Ahdieh
In a recent essay in the Yale Law Journal, constitutional law scholar Michael Stokes Paulsen argues that “[t]he force of international law, as a body of law, upon the United States is . . . largely an illusion.” Rather than law, he suggests, international law is mere “policy and politics.”
For all the certainty with which this argument is advanced, it cannot survive close scrutiny. At its foundation, Professor Paulsen’s essay rests on a pair of fundamental misconceptions of the nature of law. Law is not reduced to mere policy, to begin, simply because it can be undone. Were that …
Book (Oup) Introduction And Overview: A Cosmopolitan Legal Order: Kant, Constitutional Justice, And The European Convention On Human Rights, Alec Stone Sweet
Apr 2018
Book (Oup) Introduction And Overview: A Cosmopolitan Legal Order: Kant, Constitutional Justice, And The European Convention On Human Rights, Alec Stone Sweet
Alec Stone Sweet
No abstract provided.
Formal And Informal Amendment Of The United States Constitution, Richard S. Kay
Dec 2017
Formal And Informal Amendment Of The United States Constitution, Richard S. Kay
Richard Kay
This is the United States report submitted for the session on Formal and Informal Constitutional Amendment at the Twentieth Congress of the International Academy of Comparative Law to be held in Fukuoka, Japan in July, 2018. The report reviews the rules of Article V of the United States Constitution that sets out the rules for constitutional amendment and it provides a brief chronology of the twenty-eight amendments adopted to date. It notes a number of potential problems of interpretation associated with Article V. The report considers the widely held assumption that the United States Constitution is one of the hardest, …
Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe
Dec 2017
Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe
Scott W. Howe
An important question for our time concerns whether the Constitution could establish a right to engage in certain marijuana-related activities. Several states have now legalized cannabis, within strict limits, for recreational purposes, and that number will grow. Yet, some states will not promptly legalize but, instead, continue to criminalize, or only “decriminalize” in minor ways, and the federal criminalization statutes also will likely survive for a time. There currently is no recognized right under the Constitution to possess, use, cultivate or distribute cannabis for recreational purposes, even in small amounts, and traditional, single-clause arguments for such a right are weak. …
The Amendment Effect, Jonathan L. Marshfield
Dec 2017
The Amendment Effect, Jonathan L. Marshfield
Jonathan Marshfield
Conventional theories of constitutional design suggest that frequent formal amendment of a constitution’s text likely has a restraining effect on the practice of judicial review. On these theories, courts are more likely to favor the status quo when construing a constitution that is amended frequently, and more likely to issue transformative rulings when a constitution is difficult to amend. This Article investigates these claims by analyzing an original data-set of hand-coded opinions from state high courts in the United States. Because state constitutional amendment rates vary widely, these data provide a meaningful opportunity to explore how judges practice judicial review …
Introduction To Constraining The Executive, Tom Campbell
Dec 2017
Introduction To Constraining The Executive, Tom Campbell
Tom Campbell
The essays in this symposium illuminate aspects of the task of keeping the executive branch within its constitutionally appointed boundaries. The symposium was conceived before the 2016 elections, so its plan was not directed toward the current president. Nevertheless, it is inescapable that, writing after those elections, the authors took recent developments into account. The lessons to be learned from these essays, however, have more permanent application than simply for the immediate present. In this introduction, I review the articles of the symposium hoping to highlight the valuable contribution to separation of powers jurisprudence that each offers for the long …
