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Full-Text Articles in Law
Death Of The Challenge To Lethal Injection - Missouri's Protocol Deemed Constitutional Yet Again, Tanya M. Maerz
Death Of The Challenge To Lethal Injection - Missouri's Protocol Deemed Constitutional Yet Again, Tanya M. Maerz
Missouri Law Review
Lethal injection is currently the predominant form of execution nationwide. Most proponents of this method cite the convenience and the humanity of this procedure over past methods of execution. However, lethal injections are fraught with problems such as the specificity and safety of the written procedures themselves, implementation of such procedures, and whether lethal injection and executions in general are constitutional. Most often, prisoners file constitutional challenges to lethal injections under the Eighth Amendment, which prevents imposing cruel and unusual punishment on an American citizen. One of the more recent cases in Missouri cited such a challenge to the implementation …
Strict In Theory, But Accommodating In Fact, Ozan O. Varol
Strict In Theory, But Accommodating In Fact, Ozan O. Varol
Missouri Law Review
As law students quickly learn, the strict-scrutiny test governs challenges under the Equal Protection Clause to the government's use of suspect classifications and infringement on certain fundamental rights. To survive strict scrutiny, the government bears the heavy burden of showing a compelling interest in drawing a suspect classification or infringing on a fundamental right and narrowly tailored means to achieve that interest. Over the years, strict scrutiny has expanded to serve as a bulwark against government intrusions on many fundamental rights and liberties in the United States Constitution - including the right to vote, marry, access the courts, and freedom …
Constitutional Interpretation Through A Global Lens, Rex D. Glensy
Constitutional Interpretation Through A Global Lens, Rex D. Glensy
Missouri Law Review
This Article seeks to clarify the current debate concerning the use of non-U.S. persuasive authority within the context of constitutional interpretation. It begins by noting that commentary on comparative constitutional law often fails to make any distinction between foreign domestic sources and international law used comparatively, and thus risks evoking parallels between different systems of law that lack context and plausibility. It then draws on various normative theories and underpinnings of both domestic and international legal regimes to show that a proper comparative enterprise must take this distinction into account. The Article concludes by explaining that only when those policy …
Commerce In The Commerce Clause: A Response To Jack Balkin, Robert G. Natelson
Commerce In The Commerce Clause: A Response To Jack Balkin, Robert G. Natelson
Michigan Law Review First Impressions
The Constitution's original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island's ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin's article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution's Commerce Clause a scope that virtually no one in the Founding Era believed it had.
Role Of Individuals Discrimination In Free Exercise Claims: Putting Iqbal In Its Place, The, Leila Mcneill
Role Of Individuals Discrimination In Free Exercise Claims: Putting Iqbal In Its Place, The, Leila Mcneill
Missouri Law Review
Ashcroft v. Iqbal has been widely discussed for three reasons: (1) its extension of Twombly's pleading standard to cases outside the realm of antitrust suits, (2) its application of the collateral order doctrine to a district court order denying an official's motion to dismiss on the basis of qualified immunity in a Bivens claim, and (3) its implication for national security and postSeptember 11th terrorist detainments and investigations. However, Iqbal also implicates the nature of what constitutes unconstitutional religious discrimination under the First Amendment's Free Exercise Clause. Therefore, the Iqbal Court's discussion of religious liberty will present problems of interpretation …
Freedom And Equality On The Installment Plan, Michael Halley
Freedom And Equality On The Installment Plan, Michael Halley
Michigan Law Review First Impressions
A response to Nelson Tebbe & Robert L. Tsai, Constitutional Borrowing, 108 Mich. L. Rev. 462 (2010). Crediting the perception that the Constitution is a poorly cut puzzle whose variously configured pieces don't match, Nelson Tebbe and Robert Tsai propose that the stand-alone parts of freedom and equality can be merged and mutually enlarged through the act of borrowing. They are mistaken. While Thomas Jefferson wrote that ideas may be appropriated without being diminished and so "freely spread from one to another over the globe," the equality and freedom the Constitution addresses as actualities are constrained by a basic, familiar, …
Two Understandings Of Supremacy: An Essay, Vincent J. Samar
Two Understandings Of Supremacy: An Essay, Vincent J. Samar
Richmond Journal of Global Law & Business
Does the supremacy provision of Article VI of the U.S. Constitution undermine the legal force of international law in the United States? Recently, there has been some debate on this issue arising out of the claim that if the U.S. Constitution is “the supreme law of the land,” and that only constitutional officers of the United States, in keeping with their responsibilities to uphold the Constitution, can decide what is international law for the U.S. Such debates are not new to the history of the world. For much of world history, national rulers have claimed that their legal authority derives …
Unconstitutional Excess, And Other Recent Copyright Developments, Ali Sternburg
Unconstitutional Excess, And Other Recent Copyright Developments, Ali Sternburg
Intellectual Property Brief
No abstract provided.
Commerce, Jack M. Balkin
Commerce, Jack M. Balkin
Michigan Law Review
This Article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modem regulatory state and its expansive definition of federal commerce power Some originalists argue that the modem state cannot be justified, while others accept existing precedents as a "pragmatic exception" to originalism. Nonoriginalists, in turn, point to these difficulties as a refutation of originalist premises. Contemporary originalist readings have tended to view the commerce power through modem eyes. Originalists defending narrow readings offederal power have identified "commerce" with the trade of commodities; originalists defending broad readings of federal power …
Behind The Music: Determining The Relevant Constitutional Standard For Statutory Damages In Copyright Infringement Suits, Colin Morrissey
Behind The Music: Determining The Relevant Constitutional Standard For Statutory Damages In Copyright Infringement Suits, Colin Morrissey
Fordham Law Review
Record labels have brought thousands of copyright infringement lawsuits against individuals engaged in the online downloading and distribution of music. As these lawsuits work their way through the court system, a debate has emerged over the constitutionality of the large statutory damage awards some juries have awarded. In arguing that the copyright statute results in unconstitutional damage awards, commentators as well as defendants accused of copyright infringement contend that courts should apply the rigorous standard of review for punitive damages that the U.S. Supreme Court adopted in BMW of North America v. Gore to find large statutory damage awards unconstitutional. …
The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder
The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder
St. Mary's Law Journal
Congress has several options in limiting the execution of war, however, Congress has no implied constitutional authority to terminate a war. Congress may limit the scope at the outset of the war, dissolve the army, or use its appropriation power. Congress may also impeach the President. Domestic statutes, the Court’s strong protection of essential liberties, and the democratic process further check the President’s power. Short of these, however, neither the Constitution nor subsequent case law gives Congress any definitive power to end or effectively limit the President’s ability to conduct a war. Congress gets its “bite at the apple” at …