Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 29 of 29

Full-Text Articles in Law

Assessing The Transformation Of Europe: A View From Political Science, Alec Stone Sweet, Daniel R. Kelemen Jan 2013

Assessing The Transformation Of Europe: A View From Political Science, Alec Stone Sweet, Daniel R. Kelemen

Faculty Scholarship Series

No abstract provided.


Democratizing The Economic Sphere: A Case For The Political Boycott, Theresa J. Lee Mar 2012

Democratizing The Economic Sphere: A Case For The Political Boycott, Theresa J. Lee

Lecturer and Other Affiliate Scholarship Series

The political boycott, though recently under attack through litigation aimed at compelled disclosure regimes, is a critical tool in constructing American democracy. Defining political boycotts as those refusals by consumers to buy goods or patronize business in order to effect political or social change, this Article is the first paper to place the political boycott at home in all three classic theories underlying the First Amendment: the marketplace of ideas, democracy and self-governance, and self-expression and autonomy. It also places the boycott alongside current campaign finance doctrine via Citizens United v. FEC. Just as money amassed by corporations in the ...


A Modern Fiduciary Theory Of The Necessary & Proper Clause, Philip J. Levitz Mar 2012

A Modern Fiduciary Theory Of The Necessary & Proper Clause, Philip J. Levitz

Student Scholarship Papers

This Article offers a new originalist account of the Necessary and Proper Clause, with important implications for the Supreme Court’s pending decision on the constitutionality of the Affordable Care Act’s individual mandate. In United States v. Comstock, the Supreme Court recently offered a substantial rethinking of the Necessary and Proper Clause, for perhaps the first time since McCulloch v. Maryland. Underlying the Court’s Comstock decision are two puzzles. First, there is a puzzle on the surface of the opinion as to how to apply Justice Breyer’s novel five “considerations” in future cases, which this Article demonstrates ...


When Machines Are Watching: How Warrantless Use Of Gps Surveillance Technology Terminates The Fourth Amendment Right Against Unreasonable Search, Priscilla Smith, Nabiha Syed, Albert Wong, David Thaw Feb 2011

When Machines Are Watching: How Warrantless Use Of Gps Surveillance Technology Terminates The Fourth Amendment Right Against Unreasonable Search, Priscilla Smith, Nabiha Syed, Albert Wong, David Thaw

Lecturer and Other Affiliate Scholarship Series

The use of GPS surveillance technology for prolonged automated surveillance of American citizens is proliferating, and a direct split between the Ninth and D.C. Circuits on whether warrants are required under the Fourth Amendment for such use of GPS technology is bringing the issue to a head in the Supreme Court. A Petition for Certiorari is pending in the Ninth Circuit case which held that warrants are not required, and a second Petition is likely from the Government in the D.C. Circuit case holding that warrants are required. In this paper, we argue first, that where a technology ...


Twombly In Context: Why Federal Rule Of Civil Procedure 4(B) Is Unconstitutional, E. Donald Elliott Dec 2010

Twombly In Context: Why Federal Rule Of Civil Procedure 4(B) Is Unconstitutional, E. Donald Elliott

Faculty Scholarship Series

Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer civil charges in court without any preliminary state review or screening for reasonableness. This is argued to be unconstitutional as a unreasonable seizure of the person, a deprivation of private property without due process, and a standardless delegation of state power to a private party with a financial interest.

The history of the writ of summons is reviewed. From the Founding until 1938, federal courts reviewed the grounds proposed for suit prior to service of a ...


Commerce, Jack M. Balkin Feb 2010

Commerce, Jack M. Balkin

Faculty Scholarship Series

This article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modern regulatory state and its expansive definition of federal commerce power. Some originalists argue that the modern state cannot be justified, while others accept existing precedents as a "pragmatic exception" to originalism. Non-originalists, in turn, point to these difficulties as a refutation of orignalist premises.

Contemporary originalist readings have tended to view the commerce power through modern eyes. Originalists defending narrow readings of federal power have identified “commerce” with the trade of commodities; originalists defending broad readings of federal ...


The Reconstruction Power, Jack M. Balkin Feb 2010

The Reconstruction Power, Jack M. Balkin

Faculty Scholarship Series

Modern doctrine has not been faithful to the text, history, and structure of the Thirteenth, Fourteenth, and Fifteenth Amendments. These amendments were designed to give Congress broad powers to protect civil rights and civil liberties; together they form Congress's Reconstruction Power.

Congress gave itself broad powers because it believed it could not trust the Supreme Court to protect the rights of the freedmen. The Supreme Court soon realized Congress's fears, limiting not only the scope of the Reconstruction Amendments but also Congress's powers to enforce them in decisions like United States v. Cruikshank and the Civil Rights ...


The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum May 2009

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

Faculty Scholarship Series

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that ...


Maximizing Participation Through Campaign Finance Regulation: A Cap And Trade Mechanism For Political Money, William J. Rinner Apr 2009

Maximizing Participation Through Campaign Finance Regulation: A Cap And Trade Mechanism For Political Money, William J. Rinner

Student Scholarship Papers

This Article attempts to reroute a burgeoning area of campaign finance scholarship and reform. Though many previous proposals have enshrined liberty or equality as the sole animating value to pursue through doctrinal and political means, few have considered the impact of campaign finance regulation on citizen participation. Those that have proposed participation as a goal often remain tied to unworkable or self-defeating notions of equality. In building an alternative model of maximizing participation, this Article rejects the premise that direct political action such as volunteering embodies a superior form of participation to contributions, but recognizes the externalities that the latter ...


Justiciability And The Role Of Courts In Adequacy Litigation: Preserving The Constitutional Right To Education, Robynn K. Sturm, Julia A. Simon-Kerr Dec 2008

Justiciability And The Role Of Courts In Adequacy Litigation: Preserving The Constitutional Right To Education, Robynn K. Sturm, Julia A. Simon-Kerr

Student Scholarship Papers

In the first study of opinions handed down in education adequacy litigation between January 2005 and January 2008, this paper shows a marked shift away from outcomes favorable to adequacy plaintiffs. Following two decades in which courts spurred significant reforms in our nation’s neediest schools by interpreting the education clauses of their state constitutions to guarantee an “adequate” education for all students, the years 2005 to 2008 have seen a dramatic change in the judicial response to adequacy litigation. Through an analysis of the latest body of cases, this paper shows that separation of powers concerns have begun to ...


Nowhere To Hide: Overbreadth And Other Constitutional Challenges Facing The Current Designation Regime, Ilya O. Podolyako Sep 2008

Nowhere To Hide: Overbreadth And Other Constitutional Challenges Facing The Current Designation Regime, Ilya O. Podolyako

Student Scholarship Papers

This Article examines the legal foundation and policy implications of the President’s power to designate terrorist organizations. These administrative actions carry severe repercussions because of the criminal prohibition on knowingly providing material support to the designated entities, codified at 18 U.S.C. § 2339B. Due to the overlap of the President’s Commander-in-Chief power to block enemy assets and specific Congressional authorization of such actions, the designations themselves appear to be immune from constitutional challenges. It is the addition of concomitant criminal sanctions, however, that drastically expands the potency of the designations and turns them into an effective national ...


Constitutional Crises, Jack M. Balkin, Sanford Levinson Aug 2008

Constitutional Crises, Jack M. Balkin, Sanford Levinson

Faculty Scholarship Series

The Constitution of the United States was written against the background of perceived crisis. 4 It is therefore no surprise that the language of “crisis” has never been absent from discussions of American politics or American constitutionalism. It would be remarkable indeed if a country that has unceremoniously ignored an existing constitution—the Articles of Confederation—in order to propose and ratify a radically different one, engaged in civil war, suffered a series of economic depressions, fought two world wars (and several other major conflicts), and expanded from the eastern seaboard to the mid-Pacific and the Caribbean Sea 5 could ...


"Good Reason To Believe": Widespread Constitutional Violations In The Course Of Immigration Enforcement And The Case For Revisiting Lopez-Mendoza, Stella J. Burch Jul 2008

"Good Reason To Believe": Widespread Constitutional Violations In The Course Of Immigration Enforcement And The Case For Revisiting Lopez-Mendoza, Stella J. Burch

Student Scholarship Papers

In 1984 the Supreme Court held in INS v. Lopez-Mendoza that the exclusionary rule did not ordinarily apply to respondents in immigration proceedings. However, the Court suggested that its opinion about the applicability of the exclusionary rule might change if constitutional violations by immigration officers became a widespread problem. First, this article proposes that constitutional violations by immigration officers have become both geographically and institutionally widespread in the years since Lopez-Mendoza. Second, this article argues that immigration law and the practice of immigration enforcement have changed fundamentally in the twenty-four years since Lopez-Mendoza was decided, undermining the assumptions on which ...


Liquor Laws And Constitutional Conventions: A Legal History Of The Twenty-First Amendment, Ethan P. Davis Apr 2008

Liquor Laws And Constitutional Conventions: A Legal History Of The Twenty-First Amendment, Ethan P. Davis

Student Scholarship Papers

In 1933 America decisively ended its ill-fated experiment in national prohibition by enacting the Twenty-first Amendment. This article tells the tale of America’s return to liquor from a legal perspective. It recounts the ebb and flow of the prohibitionist movements in the nineteenth century, the congressional debates over the Twenty-first Amendment, the state laws, popular votes, and constitutional conventions that followed, and the state liquor regulatory systems adopted afterwards. A legal approach to prohibition illuminates intriguing, largely overlooked topics, including the constitutional questions activated by Congress’s unprecedented decision to submit the amendment to state conventions rather than legislatures ...


Accommodating Discrimination, Ashlie Warnick Apr 2008

Accommodating Discrimination, Ashlie Warnick

Faculty Scholarship Series

The Supreme Court's jurisprudence on church-state issues is unsettled. With respect to the Establishment Clause, the three-pronged test from Lemon v. Kurtzman is often used to hold government benefits to religious organizations unconstitutional. But, in cases where the majority of the Court finds the governmental benefit permissible, Lemon is generally unmentioned. This problem is confounded when the Court considers accommodations for religious organizations. Lemon, without refinement, is ill-suited to application to such accommodations. Does allowing religious organizations an exemption from generally applicable laws benefit a religious organization in violation of the Establishment Clause or does failing to provide the ...


Proportionality Balancing And Global Constitutionalism, Alec Stone Sweet, Jud Mathews Mar 2008

Proportionality Balancing And Global Constitutionalism, Alec Stone Sweet, Jud Mathews

Faculty Scholarship Series

Over the past fifty years, proportionality balancing – an analytical procedure akin to “strict scrutiny” in the United States – has become the dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part I proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts II and III provide a genealogy of proportionality, trace ...


Constitutional Changes, Transitional Justice, And Legitimacy: The Life And Death Of Argentina’S “Amnesty” Laws., Jose Sebastian Elias Nov 2007

Constitutional Changes, Transitional Justice, And Legitimacy: The Life And Death Of Argentina’S “Amnesty” Laws., Jose Sebastian Elias

Student Scholarship Papers

The article analyzes in-depth the legal and political process through which Argentina came, first, to amnesty former military officers who took part in the repression during the last dictatorship (1976-1983) and, then, to nullify those “amnesties” and indict the officers again eighteen years later. The thematic core is the legitimacy (or lack of it) of constitutional changes carried out by unconventional means, which are the unavoidable spin-offs of the very difficult process of transitional justice that has taken place in Argentina.

Section I gives an overview of the most salient legal and political facts of the last twenty-five years and ...


Contracting For Financial Privacy: The Rights Of Banks And Customers Under The Reauthorized Patriot Act, Aditi A. Prabhu Apr 2007

Contracting For Financial Privacy: The Rights Of Banks And Customers Under The Reauthorized Patriot Act, Aditi A. Prabhu

Student Scholarship Papers

The 2001 Patriot Act chipped away financial privacy protections by allowing law enforcement authorities easier access to bank customer records. Under the Patriot Act, federal authorities may access customer records by issuing formal subpoena-like requests under the Foreign Intelligence Surveillance Act (FISA) or informal national security letters (NSLs) to banks while prohibiting notice to any affected customers. However, the 2006 revisions to the Patriot Act permit banks to challenge FISA requests and NSLs in federal court before releasing customer records. While the Act does not require banks to make these challenges on behalf of their customers, this Paper will argue ...


Slicing The American Pie: Federalism And Personal Law, Jeffrey A. Redding Apr 2007

Slicing The American Pie: Federalism And Personal Law, Jeffrey A. Redding

Faculty Scholarship Series

In this piece, I draw upon Indian and other comparative legal experience to argue that the present U.S. system of territorial federalism resonates deeply with those systems of “personal law” that are commonly found around the world. Under a personal law system, a state enforces different laws for each of the state’s different religious or ethnic communities - which is one reason such systems have been so heavily interrogated by U.N. and other international organisations for their human rights implications. Similarly, as well, U.S. First Amendment jurisprudence has frowned upon the carving out of religious-group exceptions to ...


Bush V. Gore As Precedent, Chad W. Flanders Mar 2007

Bush V. Gore As Precedent, Chad W. Flanders

Student Scholarship Papers

My essay treats the thorny question of the precedential value of Bush v. Gore from three angles. In the first part, I look at the history of the Supreme Court limiting its decisions to the facts of present case. The venture into history is designed to test the argument made by some that the language limiting the reach of Bush v. Gore is an innocuous example of narrowing the scope of the principle propounded in Bush, rather than an objectionable restriction of the ruling to only one unique set of circumstances ­ the circumstances of Bush v. Gore. The second part ...


Deliberative Dilemmas: A Critique Of Deliberation Day From The Perspective Of Election Law, Chad W. Flanders Mar 2007

Deliberative Dilemmas: A Critique Of Deliberation Day From The Perspective Of Election Law, Chad W. Flanders

Student Scholarship Papers

My Essay tries to show the ways in which deliberative democrats and election law theorists need each other. I do so by examining in detail one proposed reform of American democracy along deliberative lines, offered by Bruce Ackerman and James Fishkin in their book Deliberation Day. The focus here is partial, but not, I think unwarranted. Ackerman and Fishkin’s book represents a bold and rigorously formulated effort to make voting more reflective, and citizens more engaged in voting. However, in the course of their proposals, they miss how key elements of the structure of American election law threaten to ...


The Case For Rational Basis Review Of General Suspicionless Searches And Seizures, Richard Worf Aug 2006

The Case For Rational Basis Review Of General Suspicionless Searches And Seizures, Richard Worf

Student Scholarship Papers

This Article examines the constitutional status of suspicionless searches and seizures of groups—an exceedingly important question in an age of terror, and a subject recently brought back to the forefront by the searches of subway passengers in New York City. It draws on process theory to argue that when a legislature has authorized a group search or seizure, courts should generally apply rational basis review. First, other areas of constitutional doctrine exhibit deep trust in the power of groups to protect their interests in the political process, and there is no reason why the Fourth Amendment should not do ...


Questioning The Fundamental Right To Marry, Joseph A. Pull May 2006

Questioning The Fundamental Right To Marry, Joseph A. Pull

Student Scholarship Papers

The Supreme Court has adopted the doctrine of a constitutional “fundamental right to marry,” and has construed this doctrine to mean a fundamental right to state-recognized legal-marriage. However, the doctrine has several problems: (a) the Court never satisfactorily explains why marriage is a fundamental right; (b) the Court never defines the boundaries of marriage as a fundamental right; and (c) the Court has occasionally treated marriage as if it were not a fundamental right.

Further, the idea of a “fundamental right to marry” contains a debilitating internal contradiction: the notion of a fundamental right implies firm privileges which the state ...


The Rise And Fall Of The Centrality Concern In Free Exercise Jurisprudence, Sean J. Young May 2006

The Rise And Fall Of The Centrality Concern In Free Exercise Jurisprudence, Sean J. Young

Student Scholarship Papers

In 1990, Smith changed the landscape of free exercise jurisprudence and introduced what this Article describes as the “centrality concern”: the principle that judges are in no place to determine the centrality of various activities to a particular religion. However, no legal scholar has recognized the extent to which the centrality concern has been undermined. This Article explains how Lukumi, Locke and most Circuits have undermined the centrality concern. Implications of this doctrinal anomaly will be illustrated with the example of the less often discussed religion of conservative Christianity, and the Article concludes with some brief recommendations.


Gay Self-Identification And The Right To Political Legibility, Fadi G. Hanna Nov 2005

Gay Self-Identification And The Right To Political Legibility, Fadi G. Hanna

Student Scholarship Papers

Over twenty years after the Sixth Circuit held that a bisexual public employee could be dismissed for coming out, courts remain split on the question of constitutional protection for gay coming-out speech. In addressing that question, this Article begins with a more fundamental one: What is the legal harm of suppressing coming-out speech? This Article suggests that a distinct legal harm follows from whether one conceives of coming-out as “persuasive,” “creative,” or “descriptive” speech—establishing a framework that applies to all minorities whose status is not readily apparent. Arguing that courts and scholars have adopted persuasive and creative conceptions of ...


Don’T Tell, Don’T Ask: Narrow Tailoring After Grutter And Gratz, Ian Ayres, Sydney Foster Sep 2005

Don’T Tell, Don’T Ask: Narrow Tailoring After Grutter And Gratz, Ian Ayres, Sydney Foster

John M. Olin Center for Studies in Law, Economics, and Public Policy Working Papers

The Supreme Court’s affirmative action decisions in Grutter v. Bollinger and Gratz v. Bollinger changed the meaning of “narrow tailoring.” While the narrow tailoring requirement has always had multiple dimensions, a central meaning has been that the government must use the smallest racial preference needed to achieve its compelling interest. We might have expected, therefore, that if the Court were to uphold one of the two programs at issue in Grutter and Gratz, it would, all other things being equal, uphold the program with smaller racial preferences. We show, however, that the preferences in the admissions program upheld in ...


Does Terrorism Increase Crime? A Cautionary Tale, John Donohue, Daniel E. Ho Aug 2005

Does Terrorism Increase Crime? A Cautionary Tale, John Donohue, Daniel E. Ho

John M. Olin Center for Studies in Law, Economics, and Public Policy Working Papers

No abstract provided.


The Case For The Legislative Override, Nicholas Stephanopoulos Mar 2005

The Case For The Legislative Override, Nicholas Stephanopoulos

Student Scholarship Papers

Abstract: What is the optimal arrangement of judicial review? Most scholars who have addressed this question have assumed that there are only two important alternatives: judicial supremacy and parliamentary sovereignty. The literature has neglected the conceptual space that exists between these two poles, in particular the innovative legislative override model. This Article describes and evaluates the experiences of the two countries that have adopted the override, Canada and Israel. It also introduces a refined override model that promises to protect fundamental rights while promoting democratic decision-making. Finally, the Article explains which institutional and political contexts are hospitable to the override ...


A Quick Look At Constitutional Reforms In Latin-America, Ricardo Gil Lavedra Jan 2002

A Quick Look At Constitutional Reforms In Latin-America, Ricardo Gil Lavedra

SELA (Seminario en Latinoamérica de Teoría Constitucional y Política) Papers

After suffering authoritarian regimes and blood-shedding military dictatorships – in many of which human rights were seriously violated- Latin American countries have regained elected civil governments in the last two decades.

This democratic recovery took place in a context of misery, social distress, high infant mortality, low educational levels, closed and predominantly agricultural economies, low industrial development and important external debt.

There were great expectations of reaching economic development with social equality through the exercise of popular sovereignty.

As from the 90s, countries in the region have faced important economic changes. Free market, open economies, privatizations, structural reforms in the state ...