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Full-Text Articles in Law
Semiprocedural Judicial Review, Ittai Bar-Siman-Tov
Semiprocedural Judicial Review, Ittai Bar-Siman-Tov
Dr. Ittai Bar-Siman-Tov
This Article explores a novel cross-national phenomenon: the emergence of a new judicial review model that merges procedural judicial review with substantive judicial review. While this model is not yet fully defined, it has already spurred much controversy. The Article explicates this emerging model, which it terms 'semiprocedural review,' and provides a theoretical exploration of both its justifications and its objectionable aspects. It concludes by evaluating semiprocedural review's overall justifiability and suggesting guiding principles for a more legitimate model of semiprocedural review. The Article pursues these goals through the unique perspective of juxtaposing semiprocedural review with 'pure procedural judicial review' …
Inside The Civil Rights Ring: Statutory Jabs And Constitutional Haymakers, Aaron J. Shuler
Inside The Civil Rights Ring: Statutory Jabs And Constitutional Haymakers, Aaron J. Shuler
Aaron J Shuler
Civil rights litigators use statutory and constitutional attacks to combat inequality. Each approach has its advantages and drawbacks developed through interpretation by U.S. courts. The first major decision that shaped modern civil rights was the Civil Rights Cases that dodged a constitutional attack to withdraw most private acts of discrimination out of reach until the Civil Rights Act of 1964 was passed and validated in Heart of Atlanta v. U.S. In addition to the coupling of statutory attacks with private discrimination and constitutional challenges to state biases, statutory attacks have proven to be more adept at addressing disparate impacts as …
Fiduciary Principles And Statutory Form In Relation To The Necessary And Proper Clause: Potential Constitutional Implications For Congressional Short Titles, Brian Christopher Jones
Fiduciary Principles And Statutory Form In Relation To The Necessary And Proper Clause: Potential Constitutional Implications For Congressional Short Titles, Brian Christopher Jones
Brian Christopher Jones
This article explores the principles of fiduciary duty and statutory form in relation to the “proper” portion of the Necessary and Proper Clause, and especially in regard to congressional short titles for bills and laws. While the clause is one of the most influential and controversial constitutional phrases, its meaning remains shrouded in mystery. At some level amongst the founders, the Constitution was regarded as a grant of fiduciary duty from the government to its people; given this, the clause should be read from such a perspective, and the duties of loyalty and good faith, among others, come into play …
Bad News For John Marshall, David B. Kopel, Gary Lawson
Bad News For John Marshall, David B. Kopel, Gary Lawson
David B Kopel
In Bad News for Professor Koppelman: The Incidental Unconstitutionality of the Individual Mandate, we demonstrated that the individual mandate’s forced participation in commercial transactions cannot be justified under the Necessary and Proper Clause as the Clause was interpreted in McCulloch v. Maryland. Professor Andrew Koppelman’s response, Bad News for Everybody, wrongly conflates that argument with a wide range of interpretative and substantive positions that are not logically entailed by taking seriously the requirement that laws enacted under the Necessary and Proper Clause must be incidental to an enumerated power. His response is thus largely unresponsive to our actual arguments.