Law Commons^™

Parliamentary Oversight Of The Executive In India, Anirudh Burman

Anirudh Burman

The need for a strong monitoring mechanism of the executive in India has been made clearer by recent allegations of corruption against high-ranking officials of the central government. The Indian Parliament is the ideal institution to perform such a monitoring function through oversight of the central executive. The executive in India is directly accountable to the Parliament. Making oversight by Parliament stronger and more effective would therefore increase the accountability of the executive. Additionally, an increased oversight role would allow for greater policy inputs from Parliament to the executive. It would also increase the general level of expertise within Parliament …

The Uniform Commercial Code Meets The Seventh Amendment: The Demise Of Jury Trials Under Article 5?, Margaret L. Moses

Margaret L. Moses

No abstract provided.

The Second Amendment: What "Arms" Are Protected?, James M. Ramey

James M Ramey

If the Supreme Court wants to give some lasting meaning to the Heller decision and the Second Amendment, it needs to first clearly establish what criteria a firearm needs to satisfy outside the categorical rules before it will be a protected arm under the in common use test. In doing so it needs to provide factors for what makes a weapon “dangerous and unusual” (whether popularity based or otherwise) and clarify to what extent the typically possessed by law abiding citizens language gets applied to the in common use analysis in addition to what it means to be “typically possessed …

Automatic Continuing Resolutions: A Cure Worse Than The Ailment, Philip J. Candreva

Philip J. Candreva

Nearly every year Congress fails to pass all of the appropriations acts before the start of the federal fiscal year. This necessitates the passage of a temporary spending measure – a continuing resolution – or there will be at least a partial government shutdown. Both contingencies are costly and disruptive to the efficient and effective operation of government. Over the last 30 years, there have been several legislative proposals to enact an automatic continuing resolution mechanism that would mitigate the costs to public management. Such proposals, however, are costly for political and legal reasons. This article examines the arguments for …

Faith, Politics, And American Culture [Review Of The Books Letter To A Christian Nation, Pity And Politics: The Right-Wing Assault On Religious Freedom, Faith And Politics: How The “Moral Values” Debate Divides America And How To Move Forward Together, The Compassionate Community: Ten Values To Unite America, Righteous: Dispatches From The Evangelical Youth Movement, And Believers: A Journey Into Evangelical America], Nick Salvatore

Nick Salvatore

[Excerpt] In January 2004, before a black church congregation in New Orleans, President George W. Bush commemorated Martin Luther King's birthday with a spirited promotion of his faith-based initiatives. Appropriating the slain Civil Rights leader's profession of faith, Bush proclaimed his ultimate purpose was to change "America one heart, one soul, one conscience at a time." He emphasized voluntary action by citizens (four times he extolled them as "the social entrepreneurs") and he consistency denigrated the role of government but for one critical function: providing "billions of dollars" to faith-based social-service groups. Proclaiming the values of the Christian Bible as …

Hamilton And Madison Deploy ‘Constitution’ In The Federalist Papers: Semantic Values Surveyed, Peter J. Aschenbrenner

Peter J. Aschenbrenner

The eighty-five Federal Papers (authors James Madison and Alexander Hamilton; John Jay contributed five) are justifiably famous as elaborations of constitutional structure and text, sans citation to the convention, understandably, since secrecy imposed by Standing Order on May 28th was continued indefinitely (at the pleasure/non-action of Congress) on September 17th. Counts on semantic value/s of ‘constitution’ and ‘constitutional’ are surveyed.

United States V. Klein, Then And Now, Gordon G. Young

Gordon G. Young

United States v. Klein, decided during Reconstruction, was the first Supreme Court case to invalidate a statutory restriction on federal courts’ jurisdiction. It is the only one to do so by finding a violation of Article III of the Constitution. Klein has been cited in thirty-three United States Supreme Court opinions, and roughly five hundred times each by lower federal courts and law journal articles. Recent commentators have read Klein both too broadly and narrowly. Its central holding is that Congress may not grant federal courts jurisdiction to decide a set of cases on the merits while depriving them …

Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Mark Graber

The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of …

The Ecuadorian Exemplar: The First Ever Vindications Of Constitutional Rights Of Nature, Erin Daly

Erin Daly

The 'Sala de le Corte Provincial' - a provincial court in Ecuador - became the first court ever to vindicate the recently constitutionalized rights of nature. Recognizing the indisputable importance of the rights of nature for present and future generations, the court held the provincial government liable for flooding damages caused by dumping of construction debris. This judicial victory is arguably overshadowed by challenges facing the plaintiffs in seeing the courts order enforced, however. A subsequent case bears witness to the judiciary’s vindication of rights of nature in Ecuador with ever increasing legal effect.

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Steven E Art

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, there has been little written about what the Amendment means or how it works. This Article provides for the first time a comprehensive interpretation of the Seventeenth Amendment based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional provision. Among other …

Standing On Holy Ground: How Rethinking Justiciability Might Bring Peace To The Establishment Clause, John M. Bickers

John M. Bickers

The Establishment Clause is home to both procedural and substantive disorder. Particularly when evaluating religious speech by the government, the Supreme Court has applied a number of distinct tests, with varying degrees of strictness. There has never been an overarching principle for determining which test would appear at which time; commentators, and occasionally the Justices themselves, have suspected that desired results drove the choice of tests. At the same time, the Court has articulated a series of requirements necessary for a plaintiff to have standing to challenge government action, only to ignore them in government religious speech cases. The resulting …

Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber

Mark Graber

Students of American constitutionalism should add constitutional decisions made by elected officials to the constitutional canon and the constitutional anticanon. Neither the canonical nor the anticanonical constitutional decisions by the Supreme Court have produced the wonderful results or horrible evils sometimes attributed to them. In many cases, elected officials made contemporaneous constitutional decisions that had as much influence as the celebrated or condemned judicial rulings. More often than not, judicial rulings matter more as a result of changing the political dynamics than by directly changing public policy. Law students and others interested in constitutional change, for these reasons, need to …

Plus Or Minus One: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Mark Graber

The consensus that the Fourteenth Amendment incorporates the Thirteenth Amendment has come under sharp criticism in recent years. Several new works suggest that the Thirteenth Amendment, properly interpreted, protects some substantive rights not protected by the Fourteenth Amendment. Some of this scholarship is undoubtedly motivated by an effort to avoid hostile Supreme Court precedents. Nevertheless, more seems to be going on than mere litigation strategy. Scholars detected different rights and regime principles in the Thirteenth Amendment than they find in the Fourteenth Amendment. The 2011 Maryland Constitutional Law Schoomze, to which this is an introduction, provided an opportunity for law …

The Founders’ Hermeneutic: The Real Original Understanding Of Original Intent, Robert G. Natelson

Robert G. Natelson

This Article addresses whether the American Founders expected evidence of their own subjective views to guide future interpretation of the U.S. Constitution. The Article considers a range of evidence largely overlooked or misunderstood in earlier studies, such as contemporaneous rules of legal interpretation, judicial use of legislative history, early American public debate, and pronouncements by state ratifying conventions. Based on this evidence, the Article concludes that the Founders were “original-understanding originalists.” This means that they anticipated that constitutional interpretation would be guided by the subjective understanding of the ratifiers when such understanding was coherent and recoverable and, otherwise, by the …

A Republic, Not A Democracy? Initiative, Referendum, And The Constitution's Guarantee Clause, Robert G. Natelson

Robert G. Natelson

This article debunks the myth, first arising in the 1840s, that the Founders sharply distinguished between a "republic" and a "democracy." It explains that by a "republic," most of the Founders meant a government controlled by the citizenry, following the rule of law, and without a king. Accordingly, state provisions for initiative and referendum are fully consistent with the Constitution's requirement that each state have a republican form of government; in fact, most of the governments the Founders called "republics" had featured analogous forms of direct democracy.

Paper Money And The Original Understanding Of The Coinage Clause, Robert G. Natelson

Robert G. Natelson

Over a century ago, the Supreme Court decided the Legal Tender Cases, holding that Congress could authorize legal tender paper money in addition to metallic coin. In recent years, some commentators have argued that this holding was incorrect as a matter of original understanding or original meaning, but that any other holding would be absolutely inconsistent with modern needs. They further argue that the impracticality of functioning without paper money demonstrates that originalism is not a workable method of constitutional interpretation. Those who rely on the Legal Tender Cases to discredit originalism are, however, in error. This Article shows that …

Clinton, Campaigns, And Corporate Expenditures: The Supreme Court's Recent Decision In Citizen's United And Its Impact On Corporate Political Influence, Glen M. Vogel

Glen M Vogel

The public’s ability to discuss and debate the character and fitness of presidential candidates is at the core of the First Amendment’s prohibition that “Congress shall make no law… abridging the Freedom of Speech.” Despite the existence of this fundamental right, articulated so eloquently in our founding document, in November of 2002, Congress made political speech a felony for one class of speakers – corporations and unions. Under the McCain-Feingold Campaign Finance Reform Law, corporations and unions were prohibited from spending their own funds in support of or against a candidate for political office. Violators of this ban faced up …

Constructing The Other: U.S. Muslims, Proposed Anti-Sharia Law, And The Constitutional Consequences Of Volatile Intercultural Rhetoric, Carlo A. Pedrioli

Carlo A. Pedrioli

Recently, legislators have proposed, discussed, and passed various laws that aimed to limit the use of foreign law, international law, and Sharia (a branch of Islamic law) in state court systems. Because it became law, one proposed state constitutional amendment that rhetorically linked Sharia to foreign and international law is of particular note. In the 2010 midterm elections, Oklahoma passed State Question 755 (SQ 755), a constitutional amendment that aimed to place restrictions on the use of foreign law, international law, and Sharia in Oklahoma courts.

Laws like Oklahoma’s State Question 755 are problematic for a variety of reasons. One …

The Future Interpretation Of The Constitution As A Result Of The Reelection Of President Barack Obama, Wilson Huhn

Wilson R. Huhn

On November 6, 2012, Barack Obama was reelected President of the United States. What effect will this have on the future interpretation of the Constitution? This article identifies 19 areas of constitutional law that would likely change if one more liberal justice is appointed to the Supreme Court.

The Civil Rights Movement And The Constitution, Wilson Huhn

Wilson R. Huhn

This presentation of March 3, 2012, describes the influence that the Civil Rights Movement has had on the interpretation of the Constitution. The Civil Rights Movement not only broadened our understanding of the principle of equality under Equal Protection, it also expanded opportunities for Freedom of Expression and the Right to Privacy. In addition, the Civil Rights Movement stimulated the courts to recognize the power of Congress to enact legislation under the Commerce Clause and Section 5 of the 14th Amendment. Finally, as a result of the Civil Rights Movement, the Supreme Court has moved to a more realistic, consequentialist …

Bargained Justice: Plea Bargaining's Innocence Problem And The Brady Safety-Valve, Lucian Dervan

Lucian E Dervan

If any number of attorneys were asked in 2004 whether Lea Fastow’s plea bargain in the Enron case was constitutional, the majority would respond with a simple word – Brady. Yet while the 1970 Supreme Court decision Brady v. United States authorized plea bargaining as a form of American justice, the case also contained a vital caveat that has been largely overlooked by scholars, practitioners, and courts for almost forty years. Brady contains a safety-valve that caps the amount of pressure that may be asserted against defendants by prohibiting prosecutors from offering incentives in return for guilty pleas that are …

'Property' In The Constitution: The View From The Third Amendment, Tom W. Bell

Tom W. Bell

During World War II, after Japan attacked the Aleutian Islands off Alaska’s coast, the United States forcibly evacuated the islands’ natives and quartered soldiers in private homes. That hitherto unremarked violation of the Third Amendment gives us a fresh perspective on what “Property” means in the U.S. Constitution. As a general legal matter, property includes not just real estate - land, fixtures attached thereto, and related rights - but also various kinds of personal property, ranging from tangibles such as books to intangibles such as causes of action. That knowledge would, if we interpreted the Constitution as we do other …

The Long And Winding Road From Monroe To Connick, Sheldon Nahmod

Sheldon Nahmod

In this article, I address the historical and doctrinal development of § 1983 local government liability, beginning with Monroe v. Pape in 1961 and culminating in the Supreme Court’s controversial 2011 failure to train decision in Connick v. Thompson. Connick has made it exceptionally difficult for § 1983 plaintiffs to prevail against local governments in failure to train cases. In the course of my analysis, I also consider the oral argument and opinions in Connick as well as various aspects of § 1983 doctrine. I ultimately situate Connick in the Court’s federalism jurisprudence which doubles back to Justice Frankfurter’s view …

Сравнительное Избирательное Право Как Научное Направление, Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Access To Quasi-Judicial Decisions – Jama V Minister For Social Protection, Mel Cousins

Mel Cousins

This case involves the important issue of access to the decisions of social welfare appeals officers. The Irish High Court concluded that there was no duty on the Department to maintain a database or open library of decisions to which the public may have access and, therefore, no question of a right of access thereto arose. However, it is submitted that the legal analysis of the general issue is doubtful.

Judicial Review And Originalism: Do We Really Want A "Dead" Constitution, Albert E. Poirier Jr.

Albert E Poirier Jr.