Law Commons^™

War, Responsibility, And The Age Of Terrorism, John C. Yoo

John C Yoo

This Article questions the widely-held view, expressed most clearly by John Hart Ely's War and Responsibility, that Congress must provide ex ante approval for all uses of force. It critiques Ely's approach, both his method of constitutional interpretation and his substantive goals for the war-making process. It proposes a different vision for war powers that provides more flexibility to the political branches. It then argues that a Congress-first process does not produce its desired substantive outcomes, and questions whether the costs and benefits of different war-making processes are sufficiently clear to cement one into place as a matter of constitutional …

The Peculiar Federal Marriage Amendment, Scott Dodson

Scott Dodson

In this essay, I discuss the Constitution's commitment to three themes--state power, individual liberty, and equality--and then demonstrate how the FMA is uniquely contrary to all three. I do not intend to go so far as to suggest that the FMA would be an "unconstitutional amendment," [FN8] if such things are possible, nor do I mean to suggest that same-sex marriage is or should be affirmatively protected by the Constitution. I mean only to suggest that proposed amendments that are contrary to existing constitutional themes should be scrutinized warily for thematic coherence. Because the FMA is contrary to three powerful …

Anthrax Hoaxes, Ira P. Robbins

Ira P. Robbins

Posible Inconstitucionalidad De La Nueva Ley De Acceso A La Información Pública, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

No abstract provided.

La Solemnidad Del Mandato Para Ejecutar Actos Solemnes, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

No abstract provided.

Religious Organizations And Free Exercise: The Surprising Lessons Of Smith, Kathleen Brady

Kathleen A Brady

Much has been written about the protections afforded by the Free Exercise Clause when government regulation impacts the religious practices of individuals, and if one looks for guidance from the Supreme Court, the rules are fairly clear. Prior to 1990, the Supreme Court had long employed a balancing approach that afforded—at least in theory—significant relief. Under this approach individuals were entitled to exemptions from laws which substantially burdened religious conduct unless enforcement was justified by a compelling state interest. In 1990, in Employment Division v. Smith, the Supreme Court abandoned this balancing test for all but a few categories of …

¿Prevalecen Los Tratados Internacionales Sobre La Constitución? Propuesta De Una Doctrina No Extremista, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

No abstract provided.

The Democratic Public Domain: Reconnecting The Modern First Amendment And The Original Progress Clause (A.K.A. Copyright And Patent Clause), Malla Pollack

Malla Pollack

Empirical investigation of public usage of the word "progress" in the United States of 1789 demonstrates that the word meant "dissemination." The original meaning of art. I, sec. 8, cl. 8, therefore, is that Congress has the right to grant only such temporally limited exclusive rights in writings and new technology as encourage the dissemination of knowledge and new technology to the population. This article explains the major differences between current United States positive intellectual property law and the logical dictates of this original constitutional meaning. Additionally, the article asserts that the original meaning of clause 8 supports modern calls …

The Mobility Paradox, Todd E. Pettys

Todd E. Pettys

Nearly half a century ago, in an article spanning a mere nine pages, Charles Tiebout revolutionized the way many think about American federalism. Using the analytic tools Tiebout gave them, numerous scholars now contend that, in our mobile society, citizens’ interests would best be served by dramatically shrinking the federal government and permitting state and local governments to regulate a far greater number of important matters. In this article, I argue that citizens’ interests and the dynamics of federalism are far more complicated than the devolutionary proposals of Tiebout’s adherents suggest. I identify three reasons why a mobile—and rational—public might …

Searching For The Peaceable Kingdom (Reviewing Carol Weisbrod, Emblems Of Pluralism), Mark Rosen

Mark D. Rosen

No abstract provided.

Punitive Damages: A Comparative Analysis, John Gotanda

John Y Gotanda

In light of expanding international trade, it is increasingly likely that politicians, courts and tribunals will wrestle with whether punitive damages are appropriate in transnational disputes, and whether countries that traditionally do no allow exemplary relief should recognize and enforce foreign awards of such damages. Furthermore, by seeing how different systems address these problems, we can gain a deeper understanding of the role of punitive damages in our own legal system and be better able to deal with punitive damages issues in the international arena. This Article undertakes a thorough comparative study of punitive damages in common law countries. It …

Exporting The Constitution, Mark Rosen

Mark D. Rosen

If a foreign government enacts a law that would be unconstitutional if passed in the United States, can a foreign judgment based on that law be enforced in an American court? For example, can an American court enforce an English judgment based on English defamation law, which is more pro-plaintiff than the First Amendment permits American law to be? The same issue was presented by recent litigation involving Yahoo!, where a federal district court considered whether it could enforce a French judgment based on a French law that regulated hate speech more broadly than the First American allows American polities …

Is Indian Democracy Dependent On A Statute?, Shubhankar Dam

Shubhankar Dam

What is the status of a right to vote in the Indian legal system? Is the right a constitutional/fundamental right? Or is it simply a statutory right? Contrary to the decisions of the Supreme Court in the last five decades, this paper argues that the right to vote is a constitutional right: its textual foundation may be located in Article 326. And, in this sense, the Supreme Court has erred in construing the right to vote as a statutory right under the Representation of Peoples Act, 1951. Interpreting the right to vote as a statutory right has larger implications for …

Video Surveillance And The Constitution Of Public Space: Fitting The Fourth Amendment To A World That Tracks Image And Identity, Marc Blitz

Marc J. Blitz

No abstract provided.

Silence: Insolubly Ambiguous And Deadly: The Constitutional, Evidentiary And Moral Reasons For Excluding ‘Lack Of Remorse’ Testimony And Argument In Capital Sentencing Proceedings, Jules Epstein

Jules Epstein

No abstract provided.

Doublethinking Privacy Under The Multi-State Antiterrorism Information Exchange, Thomas V. Burch

Thomas V. Burch

No abstract provided.

The Supreme Court, Foreign Law And Constitutional Governance, Lawrence J. Connell

Lawrence J. Connell

No abstract provided.

Get The Facts, Jack! Empirical Research And The Changing Constitutional Landscape Of Consent Searches, Steven L. Chanenson

Steven L. Chanenson

No abstract provided.

The Agency Law Origins Of The Necessary And Proper Clause, Robert G. Natelson

Robert G. Natelson

This is the first of several writings by the author on the original meaning of the Constitution's Necessary and Proper Clause. It explains part of the legal background of the Clause, identifies it as a recital (not an independent grant of power) of the 18th century doctrine of incidental powers, and explains the content of that doctrine. The article has since been updated and supplemented by the author's signed chapters in Lawson, Miller, Natelson & Seidman, The Origins of the Necessary and Proper Clause (Cambridge Univ. Press, 2010).

The General Welfare Clause And The Public Trust: An Essay In Original Understanding, Robert G. Natelson

Robert G. Natelson

This article explains the original meaning/understanding of the Constitution's General Welfare Clause, including the scope of the taxing and spending power granted to Congress

The Constitution And The Public Trust, Robert G. Natelson

Robert G. Natelson

The American Founders believed that public officials were bound by fiduciary obligations, and they wrote that view into the Constitution. This article copiously documents their position.

What Are Capital Gain And Capital Loss Anyway, Yoseph M. Edrey Prof.

Yoseph M. Edrey

I will try to offer a more analytical definition for capital gains and losses. Such definition, which relies on the economic process that creates the gain or loss, is based on a distinction between what I call “actual/genuine capital gain” and “disguised capital gain.” Such suggested analysis might change the traditional discussion and enable us to appreciate that the actual (genuine) capital gain component is much smaller than what we are normally accustomed to and, hence, the lock-in and risk-taking problems on the one hand, and the possibilities of “cherry-picking” losses on the other hand, are almost nonexistent. Furthermore, the …

A Key Influence On The Doctrine Of Actual Malice: Justice William Brennan’S Judicial Philosophy At Work In Changing The Law Of Seditious Libel, Carlo A. Pedrioli

Carlo A. Pedrioli

In light of the historical change in the law of seditious libel that New York Times v. Sullivan (1964) prompted and the need for further exploration of the human factors behind the case, this article gives attention to William Brennan’s judicial philosophy at work in the case. The article defines judicial philosophy as a system of guiding principles upon which a judge calls in the process of legal decision-making. Specifically, the article explains how, through Times v. Sullivan, Brennan’s instrumentalist judicial philosophy had an important influence on changing the course of legal protection for criticism of the government in the …

Assessing The Constitutionality Of Laws That Are Both Content Based And Content Neutral, Wilson R. Huhn

Wilson R. Huhn

Such a multi-faceted analysis cannot be conflated into two dimensions. Whatever the allure of absolute doctrines, it is just too simple to declare expression "protected" or "unprotected" or to proclaim a regulation "content-based" or "content-neutral." John Paul Stevens (1992)

American legal doctrine evolved from a formalistic categorical approach that dominated legal thinking during the nineteenth century to a realistic balancing approach that developed over the course of the twentieth century. A similar process is now occurring in the constitutional doctrine governing freedom of expression-a process that may culminate in the adoption of what United States Supreme Court Justice John Paul …

The Flag Protection Act Of 1989, Andrew Spiropoulos

Andrew C. Spiropoulos

No abstract provided.

Law School Diversity As A Compelling State Interest: Justice O'Connor's Application Of Strict Scrutiny And The Promise Of The U.S. Supreme Court's Ruling In Grutter V. Bollinger, James Johnston

James B Johnston

This article discuuses the landmark Grutter v. Bollinger decision in the the context of its ability to promote diversity both in academia and the workplace.

History Of The Pennsylvania Constitution (Chapter 3), John Gedid

John L. Gedid

No abstract provided.

The Foggy Road For Evaluating Punitive Damages: Lifting The Haze From The Bmw/State Farm Guideposts, Steven Chanenson, John Gotanda

John Y Gotanda

In light of increasing punitive damages awards, the United States Supreme Court formulated criteria for evaluating whether a punitive damages award is so unreasonably large that it violates substantive due process. Unfortunately, these "guideposts," which were first erected in BMW v. Gore and applied last term in State Farm v. Campbell, are difficult to use and have resulted in inconsistent decisions. Indeed, Justice Scalia stated that they "mark a road to nowhere." The authors argue that the problems with the guideposts can be fixed by refining the third guidepost, which compares the punitive damages award to the criminal (or civil) …

The Futile Quest For A System Of Judicial “Merit” Selection, Michael R. Dimino

Michael R Dimino

Get The Facts, Jack! Empirical Research And The Changing Constitutional Landscape Of Consent Searches, Steven L. Chanenson

Steven L. Chanenson

No abstract provided.