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Articles 1 - 10 of 10
Full-Text Articles in Law
Redressing Deprivations Of Rights Secured By State Constitutions Outside The Shadow Of The Supreme Court's Constitutional Remedies Jurisprudence, Gary S. Gildin
Redressing Deprivations Of Rights Secured By State Constitutions Outside The Shadow Of The Supreme Court's Constitutional Remedies Jurisprudence, Gary S. Gildin
Journal Articles
The second generation of state constitutionalism is now emerging. With the methodology of autonomous state constitutional protection more clearly defined, courts and legislatures are turning to the task of determining when, and from whom, they should award damages to citizens deprived of their state constitutional rights. State courts, as well as legislatures contemplating statutes authorizing damage actions, will be tempted to borrow United States Supreme Court interpretations of 42 U.S.C. §1983 in shaping civil relief for infringement of state constitutional rights. This article argues that the Supreme Court’s Section 1983 remedies doctrine is a product of statutory, structural and institutional …
All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet
All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet
Journal Articles
This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of how …
Sustainable Decentralization: Power, Extraconstitutional Influence, And Subnational Symmetry In The United States And Spain, James A. Gardner, Antoni Abat I Ninet
Sustainable Decentralization: Power, Extraconstitutional Influence, And Subnational Symmetry In The United States And Spain, James A. Gardner, Antoni Abat I Ninet
Journal Articles
In the Madisonian tradition of constitutional design, the foundation of a sustainable federalism is thought to be a scientifically precise balancing of national and subnational power. Experience shows, however, that national and subnational actors in highly diverse systems are capable of developing a rich array of extraconstitutional methods of mutual influence, so that the formal, constitutionalized balance of power rarely settles the question of the actual balance of power between levels of government. A more important factor in ensuring the long-term sustainability of a meaningfully federal system is the degree of symmetry across subnational units in their relation to the …
Checks, Balances And Judicial Wizardry: Constitutional Delegation And Congressional Legislation, Robert I. Reis
Checks, Balances And Judicial Wizardry: Constitutional Delegation And Congressional Legislation, Robert I. Reis
Journal Articles
No abstract provided.
(Re)Complexioning A Simple Tale: Race, Speech, And Colored Leadership, Angela Mae Kupenda
(Re)Complexioning A Simple Tale: Race, Speech, And Colored Leadership, Angela Mae Kupenda
Journal Articles
Rather than acting as a whitening agent, the law should reflect the natural (re)complexioning of society and adapt to the melting pot that is America. The term "(re)complexioning" is used because the idea that the complexion of America was white at the beginning is false. Prior to the "discovery" of America, native citizens were indeed more deeply complexioned than Whites. Any (re)complexioning of the law since, to reflect the colors of America, then, is just to resort to the recognition of factual premises unjustly rejected when America was usurped from those of color and denied to others of color after …
Measure 26: Fear Mongering, Self-Execution & Potential Implications For Birth Control, Jonathan Will
Measure 26: Fear Mongering, Self-Execution & Potential Implications For Birth Control, Jonathan Will
Journal Articles
Depending on what we mean by “fertilization,” there could be impacts on many reproductive choices including birth control, fertility treatments like in vitro fertilization (IVF), and of course, women’s ability to choose to have an abortion. Certain proponents of Measure 26 suggest that even discussing these implications (other than perhaps abortion) amounts to fear mongering. While primarily focusing on birth control, the goal of this essay is to introduce readers to why the concerns regarding these reproductive choices are very real, and how these concerns are further complicated by the issue of whether, if passed, Measure 26 would be deemed …
Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward
Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward
Journal Articles
This essay explores the proper scope of Congress’s power to enforce the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. It reviews the historical context surrounding the drafting of the Thirteenth Amendment enforcement power, and it points to structural constitutional considerations relevant to the understanding of that power. It concludes by suggesting some related topics that deserve further exploration.
Legitimate Absenteeism: The Unconstitutionality Of The Caucus Attendance Requirement, Heather R. Abraham
Legitimate Absenteeism: The Unconstitutionality Of The Caucus Attendance Requirement, Heather R. Abraham
Journal Articles
No abstract provided.
The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett
The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett
Journal Articles
This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our law …
The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke
The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke
Journal Articles
Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number …