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Full-Text Articles in Law

The Limits Of Enumeration, Richard A. Primus Dec 2014

The Limits Of Enumeration, Richard A. Primus

Articles

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internallimits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police ...


A Common Law Constitutionalism For The Right To Education, Scott R. Bauries Jul 2014

A Common Law Constitutionalism For The Right To Education, Scott R. Bauries

Law Faculty Scholarly Articles

This Article makes two claims, one descriptive and the other normative. The descriptive claim is that individual rights to education have not been realized under state constitutions because the currently dominant structure of education reform litigation prevents such realization. In state constitutional education clause claims, both pleadings and adjudication generally focus on the equality or adequacy of the system as a whole, rather than on any particular student's educational resources or attainment. The Article traces the roots of the currently dominant systemic approach, and finds these roots in federal institutional reform litigation. This systemic focus leads to a systemic ...


Targeted Killing: United States Policy, Constitional Law, And Due Process, Mark Febrizio Apr 2014

Targeted Killing: United States Policy, Constitional Law, And Due Process, Mark Febrizio

Senior Honors Theses

The increased incorporation of targeted killing, primarily through the use of unmanned aerial vehicles, into United States policy raises salient questions regarding its consistency with the U.S. Constitution. This paper contrasts interpretations of constitutional due process with the current legal framework for conducting targeted killing operations. The Fifth Amendment to the Constitution establishes the due process owed to U.S. citizens. This paper determines that the killing of Anwar al-Awlaki, an American citizen, was accomplished in a manner inconsistent with constitutional due process and demonstrates an over-extension of executive branch power. This paper examines one scholarly recommendation that seeks ...


The Puzzling Presumption Of Reviewability, Nicholas Bagley Mar 2014

The Puzzling Presumption Of Reviewability, Nicholas Bagley

Articles

The presumption in favor of judicial review of agency action is a cornerstone of administrative law, accepted by courts and commentators alike as both legally appropriate and obviously desirable. Yet the presumption is puzzling. As with any canon of statutory construction that serves a substantive end, it should find a source in history, positive law, the Constitution, or sound policy considerations. None of these, however, offers a plausible justification for the presumption. As for history, the sort of judicial review that the presumption favors - appellate-style arbitrariness review - was not only unheard of prior to the twentieth century, but was commonly ...


Enacted Legislative Findings And The Deference Problem, Daniel A. Crane Mar 2014

Enacted Legislative Findings And The Deference Problem, Daniel A. Crane

Articles

The constitutionality of federal legislation sometimes turns on the presence and sufficiency of congressional findings of predicate facts, such as the effects of conduct on interstate commerce, state discrimination justifying the abrogation of sovereign immunity, or market failures justifying intrusions on free speech. Sometimes a congressional committee makes these findings in legislative history. Other times, Congress recites its findings in a statutory preamble, thus enacting its findings as law. Surprisingly, the Supreme Court has not distinguished between enacted and unenacted findings in deciding how much deference to accord congressional findings. This is striking because the difference between enactedness and unenactedness ...


One(?) Nation Over-Extended, Gary Lawson Jan 2014

One(?) Nation Over-Extended, Gary Lawson

Faculty Scholarship

The conventional wisdom prior to the founding was that republics needed to be small. The conventional wisdom today is that James Madison, and the example of the United States, proves this to be mistaken. But what if Madison was actually wrong and Montesquieu was right? In this article, I consider whether the United States has gotten too big for its Constitution, whether this massive size contributes to political dysfunction, and what might be done to remedy the problem if there is indeed a problem. I suggest that size can increase rather than decrease the dangers of faction because the increased ...


The Constitutional Limit Of Zero Tolerance In Schools, Derek W. Black Jan 2014

The Constitutional Limit Of Zero Tolerance In Schools, Derek W. Black

Faculty Publications

With the introduction of modern zero tolerance policies, schools now punish much more behavior than they ever have before. But not all the behavior is bad. Schools have expelled the student who brings aspirin or fingernail clippers to campus, who does not know that a keychain knife in his backpack, or who reports having taken away a knife from another student in order to keep everyone safe. Despite challenges to these examples, courts have upheld the suspension and expulsion of this good-faith, innocuous behavior. With little explanation, courts have opined that the Constitution places no meaningful limit on the application ...


The Constitutional Thought Of Alexander Hamilton, Mortimer N.S. Sellers Jan 2014

The Constitutional Thought Of Alexander Hamilton, Mortimer N.S. Sellers

Book Chapters

Alexander Hamilton was one of the strongest minds behind the development of modern constitutionalism, both in theory and in practice. Hamilton shared the constitutional principles of his republican contemporaries in his commitment to bicameral legislatures, elected executives, the separation of powers, checks and balances in government, and representative (rather than direct) democracy. He differed somewhat in his much stronger commitment to federalism, to executive power, and to judges, as the bulwark of constitutional liberty. Hamilton became as "Publius" (with James Madison) in "The Federalist" the foremost advocate and interpreter of constitutional government as it would ultimately be implemented in the ...


Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark A. Graber Jan 2014

Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark A. Graber

Faculty Scholarship

This paper sharpens debates over whether the Constitution of the United States and the American constitutional order are presently dysfunctional, the nature of any dysfunctions, and how underlying regime flaws are likely to be corrected. Rather than focusing primarily on constitutional text, this Article explores the dynamic ways in which constitutional processes have influenced and been influenced by the structure of constitutional politics. Constitutional dysfunction is best conceptualized as the failure of a constitutional order rather than as a consequence of a flawed constitutional text, and dysfunction typically occurs when a regime is unable to transition from a dysfunctional constitutional ...


Constitutional Law, Jethro Lieberman Jan 2014

Constitutional Law, Jethro Lieberman

Other Publications

No abstract provided.


Constitutionalism, Jethro K. Lieberman Jan 2014

Constitutionalism, Jethro K. Lieberman

Other Publications

No abstract provided.


Spillover Across Remedies, Michael Coenen Jan 2014

Spillover Across Remedies, Michael Coenen

Journal Articles

Remedies influence rights, and rights apply across remedies. Combined together, these two phenomena produce the problem of spillover across remedies. The spillover problem occurs when considerations specific to one remedy affect the definition of a substantive rule that governs in other remedial settings. For example, the severe remedial consequences of suppressing incriminating evidence might generate substantive Fourth Amendment precedents that make other Fourth Amendment remedies (such as damage awards, injunctions, or ex ante denials of search warrants) more difficult to obtain. Or, the rule of lenity might yield a narrowed reading of a statutory rule in a criminal case, which ...


Juries And The Criminal Constitution, Meghan J. Ryan Jan 2014

Juries And The Criminal Constitution, Meghan J. Ryan

Faculty Scholarship

Judges are regularly deciding criminal constitutional issues based on changing societal values. For example, they are determining whether police officer conduct has violated society’s "reasonable expectations of privacy" under the Fourth Amendment and whether a criminal punishment fails to comport with the "evolving standards of decency that mark the progress of a maturing society" under the Eighth Amendment. Yet judges are not trained to assess societal values, nor do they, in assessing them, ordinarily consult data to determine what those values are. Instead, judges turn inward, to their own intuitions, morals, and values, to determine these matters. But judges ...


Constitutional Skepticism: A Recovery And Preliminary Evaluation, Louis Michael Seidman Jan 2014

Constitutional Skepticism: A Recovery And Preliminary Evaluation, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The aim of this article is to recover and reevaluate the American tradition of constitutional skepticism. Part I consists of a brief history of skepticism running from before the founding to the modern period. My aim here is not to provide anything like a complete description of the historical actors, texts, and events that I discuss. Instead, I link together familiar episodes and arguments that stretch across our history so as to demonstrate that they are part of a common narrative that has been crucial to our self-identity. Part II disentangles the various strands of skeptical argument. I argue that ...


Resolving The Original Sin Of Bolling V. Sharpe, Gregory Dolin Jan 2014

Resolving The Original Sin Of Bolling V. Sharpe, Gregory Dolin

All Faculty Scholarship

On May 17, 1954 the Supreme Court handed down two decisions that for the first time categorically held that racial segregation in public schools was per se unlawful – Brown v. Board of Education and Bolling v. Sharpe. Ostensibly, both cases dealt with a same question; however, in Brown the entity accused of discrimination was a creature of the State of Kansas, while in Bolling the discrimination was practiced by the federal government. The problem that the Supreme Court faced was the language of the Fourteenth Amendment, which, by its own terms, guaranteed “equal protection of the laws” only vis-à-vis states ...


Article 41 And The Right To Appeal, Benjamin L. Liebman Jan 2014

Article 41 And The Right To Appeal, Benjamin L. Liebman

Faculty Scholarship

Extensive discussion of the Chinese Constitution focuses on the ways in which the Constitution is under-enforced or not implemented. This essay takes a different approach, examining one clause that is arguably at times over-enforced, providing for constitutional authorization for challenging legal determinations outside the legal system. This essay’s focus is Article 41 of the 1982 Constitution, which protects the rights of citizens to file complaints (shensu 申诉) against illegal conduct of state actors. My goal in this essay is to examine the ways in which the concept of shensu is used to provide a basis for challenges to state ...


The Jurisprudence Of Union, Gil Seinfeld Jan 2014

The Jurisprudence Of Union, Gil Seinfeld

Articles

The primary goal of this Article is to demonstrate that the interest in national unity does important, independent work in the law of vertical federalism. We have long been accustomed to treating union as a constitutionally operative value in cases involving the duties states owe one another (i.e. horizontal federalism cases), but in cases involving the relationship between the federal government and the states, the interest in union is routinely ignored. This Article shows that, across a wide range of cases relating to the allocation of power between the federal government and the states, the states are constrained by ...


Election Law's Lochnerian Turn, Ellen D. Katz Jan 2014

Election Law's Lochnerian Turn, Ellen D. Katz

Articles

This panel has been asked to consider whether "the Constitution [is] responsible for electoral dysfunction."' My answer is no. The electoral process undeniably falls well short of our aspirations, but it strikes me that we should look to the Supreme Court for an accounting before blaming the Constitution for the deeply unsatisfactory condition in which we find ourselves.