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Series

Constitutional Law

2009

Discipline
Institution
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Articles 1 - 30 of 40

Full-Text Articles in Law

A First Amendment Perspective On The Construction Of Third Party Copyright Liability, Alfred C. Yen Dec 2009

A First Amendment Perspective On The Construction Of Third Party Copyright Liability, Alfred C. Yen

Boston College Law School Faculty Papers

Third-party copyright liability raises specific First Amendment problems that remain relatively unexplored. Among other things, such liability separates the danger of liability from the benefits of speaking, making key actors prone to careless censorship of speech. This Article applies the First Amendment to third-party copyright liability by drawing lessons from the famous cases of New York Times Co. v. Sullivan and Gertz v. Robert Welch, Inc. It concludes that vicarious liability should be sharply curtailed, and that the application of presumed damages is constitutionally problematic in many contributory liability cases.


Property As/And Constitutional Settlement, Timothy Zick Nov 2009

Property As/And Constitutional Settlement, Timothy Zick

Popular Media

No abstract provided.


Displacement, Timothy Zick Nov 2009

Displacement, Timothy Zick

Popular Media

No abstract provided.


Speech And The Identity Crisis, Timothy Zick Nov 2009

Speech And The Identity Crisis, Timothy Zick

Popular Media

No abstract provided.


Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits’ Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope J. Pether Oct 2009

Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits’ Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope J. Pether

Working Paper Series

Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, Not Apprentices: How Judicial Clerks and Staff Attorneys Impoverish U.S. Law, 39 ARIZ. ST. L.J. 1 (2007), documented the de facto delegation of the majority of Article III judicial power to inadequately supervised non-judicial actors, and the origins of nonprecedential status rules in the federal bench’s mistrust of the accuracy of the judging done in its name.

Constitutional Solipsism takes up the repeated suggestions by federal courts and organs of the Federal Judicial Conference that the circuits’ ubiquitous nonprecedential status rules are unconstitutional. Mapping, analyzing, and substantially supplementing scattered, thin, and inconclusive scholarly analyses, largely published in the wake of the decision in Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated en banc as moot, 235 F.3d 1054 (8th Cir. 2000), it is the first comprehensive analysis of the constitutionality question. In addition to considering previously unexplored yet salient constitutional doctrine, including the “fundamental interests” jurisprudence articulating the constitutional right of access to the courts, and non-delegation doctrine, the Article departs from predecessor scholarship by considering the rules in the contexts that they justify and enable: the delegation of Article III power to inadequately supervised adjuncts, and the abbreviated adjudicatory processes that arguably deny plenary appeals to the majority of federal appellants, substituting an unsafe certiorari process for appeals as of right.

Relying principally on a critical reading of the leading inherent Article III power cases and authority on the powers “essential to the administration of justice,” and the constitutional logic of bodies of doctrine including fundamental interests and non-delegation doctrine, as well as on the limits on the circuits’ formal rulemaking power, Constitutional Solipsism concludes that the rules and the practices that underpin them are profoundly unconstitutional, because ultra vires Article III power. It goes on to argue both that the constitutional solipsism that characterizes the courts’ inherent power jurisprudence and their judging practices calls for a thick constitutionalist doctrine of judicial duty, and not just of power; and that the most recent developments in “post-9/11 constitutional” jurisprudence suggest the ripeness ...


Section 5: Individual Rights, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law Oct 2009

Section 5: Individual Rights, Institute Of Bill Of Rights Law At The College Of William & Mary School Of Law

Supreme Court Preview

No abstract provided.


Gendered Laws, Racial Stories, Kim S. Buchanan Sep 2009

Gendered Laws, Racial Stories, Kim S. Buchanan

University of Southern California Legal Studies Working Paper Series

In this Article, I argue that, in prisons and in Title VII jurisprudence, the legal response to same-sex sexual harassment and abuse enforces the norms of masculinity that abusers enact in the practice of such abuse and harassment. Prison guards and administrators routinely refuse to prevent or punish sexual abuse, telling the victim to “Be a man. Stand up and fight.” If he is raped, the victim is often told that he is—or has been made—“gay,” and therefore “liked it.” Similar norms, albeit in less violent and more coded form, inflect Title VII jurisprudence of same-sex sexual harassment ...


Global Constitutional Lawmaking, Sungjoon Cho Aug 2009

Global Constitutional Lawmaking, Sungjoon Cho

All Faculty Scholarship

Global Constitutional Lawmaking Abstract This article identifies a nascent phenomenon of “global constitutional lawmaking” in a recent WTO jurisprudence which struck down a certain calculative methodology (“zeroing”) in the antidumping area. The article interprets the Appellate Body’s uncharacteristic anti-zeroing hermeneutics, which departs from a traditional treaty interpretation under the Vienna Convention on the Law of Treaties and the past pro-zeroing GATT case law, as a “constitutional” turn of the WTO. The article argues that a positivist, inter-governmental mode of thinking, as is prevalent in other international organizations such as the United Nations, cannot fully expound this phenomenon. Critically, this ...


Board Of Education Of Kiryas Joel Village School District V. Grumet: A Religious Group's Quest For Its Own Public School, Nomi Stolzenberg Jul 2009

Board Of Education Of Kiryas Joel Village School District V. Grumet: A Religious Group's Quest For Its Own Public School, Nomi Stolzenberg

University of Southern California Legal Studies Working Paper Series

The case of Kiryas Joel School District v. Grumet, handed down by the Supreme Court in 1994, involving the quest of a religious group to establish its own public school, attracted national attention. Seemingly, the Supreme Court vindicated the civil libertarian position that creating a public school district in the religiously homogeneous village of Kiryas Joel, established and populated exclusively by members of the Satmar sect of ultra-Orthodox Hasidic Jews, constituted a violation of the principle of separation between church and state embodied in the establishment clause. In fact, the Court's decision did no such thing. Instead, it offered ...


Deep And Wide: Justice Marshall's Contributions To Constitutional Law, Rebecca L. Brown Jul 2009

Deep And Wide: Justice Marshall's Contributions To Constitutional Law, Rebecca L. Brown

University of Southern California Legal Studies Working Paper Series

This essay, a contribution to a symposium marking the 100th anniversary of Justice Thurgood Marshall’s birth, explores Justice Marshall’s singular understanding of equality as a driving force underlying all of constitutional law. His theory of equality as giving rise to an obligation on government to provide reasons for its actions reflects a sophisticated and under-appreciated perspective on American constitutionalism, as illustrated by several examples offered in the essay.


Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes Jul 2009

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Akron Law Publications

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those ...


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 ...


Abortion Across State Lines, Joseph W. Dellapenna May 2009

Abortion Across State Lines, Joseph W. Dellapenna

Working Paper Series

In this Article, I propose to analyze conflicts of law precedents and theory to explore the extent to which a state can apply its law on abortion to abortions performed outside the state but bearing a significant connection to the state. In attempting to resolve such questions, we enter into the domain of choice of law, part of the field of conflicts of law. This domain is notoriously unstable and contested. This instability allows legal commentators to project their attitudes towards abortion (and many other matters) in analyzing and construing the relevant authorities to resolve choice of law issues. I ...


Argument Selection In Constitutional Law: Choosing And Reconstructing Conceptual Systems, Michael Shapiro May 2009

Argument Selection In Constitutional Law: Choosing And Reconstructing Conceptual Systems, Michael Shapiro

University of Southern California Legal Studies Working Paper Series

In some cases, it is clear that more than one constitutional argument will fairly lead to the same adjudicatory outcome. For the most part, courts choose exactly one of them, although in some cases they cumulate the converging arguments. When courts select just one, or at least fewer than all, on what basis do they, and should they, choose? Put tersely, what are the criteria for choosing among arguments that meet at the same outcome?

The virtue of formulating this question by imposing the same-outcome constraint is that it requires us to look closely at exactly what distinguishes one argument ...


A Comment On "Legisprudence", Vlad F. Perju May 2009

A Comment On "Legisprudence", Vlad F. Perju

Boston College Law School Faculty Papers

No abstract provided.


The Pros And Cons Of Politically Reversible 'Semisubstantive' Constitutional Rules, Dan T. Coenen May 2009

The Pros And Cons Of Politically Reversible 'Semisubstantive' Constitutional Rules, Dan T. Coenen

Scholarly Works

Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment ...


Executive Authority To Reform Health: Options And Limitations, Madhu Chugh Apr 2009

Executive Authority To Reform Health: Options And Limitations, Madhu Chugh

O'Neill Institute Papers

Presidential power has provoked increasingly vigorous debate since the turn of this century. In recent years, scholars and lawyers have been grappling with how Congress's dictates may limit the President's Commander-in-Chief power to detain enemy combatants at Guantanamo Bay, to fight wars abroad, and to conduct intelligence activities at home. But policymakers have not yet explored the many possibilities for invoking the President's "Take Care" power to change health care policy.

This paper explores the scope and limits of President Barack Obama's ability to invoke his executive authority to reform health care. Specifically, it identifies ways ...


The Mexican Constitution And Its Safeguards Against Foreign Investments, Álvaro Ramírez Martínez Apr 2009

The Mexican Constitution And Its Safeguards Against Foreign Investments, Álvaro Ramírez Martínez

Cornell Law School Inter-University Graduate Student Conference Papers

Every state has safeguards against foreign investment in its country. Most of the times these safeguards are contained in a main document which governs said countries. This document can take the form of a Constitution.

The Mexican constitution contains a safeguard against foreign investments in Article 27, where it is stated that the Mexican state can expropriate private property among other things, due to public interest. Any expropriation must be followed by an indemnification. The price to pay as indemnification shall not exceed the assessment for tax purposes.

Mexico has an invaluable opportunity to attract foreign investments but it must ...


Law, War, And The History Of Time, Mary L. Dudziak Apr 2009

Law, War, And The History Of Time, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This paper examines wartime as a form of time, arguing that assumptions about the temporality of war are a feature of American legal thought. Time is thought to be linear and episodic, moving from one kind of time (peacetime) to another kind of time (wartime) in sequence. In this way of thinking, war is by definition temporary, so that war’s impact on law is limited in time. This understanding of war and time, however, is in tension with the practice of war in 20th century U.S. history, for American involvement in overseas military action has been continuous.

Drawing ...


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 ...


Equality, Conscience, And The Liberty Of The Church: Justifying The Controversiale Per Controversialius, Patrick Mckinley Brennan Apr 2009

Equality, Conscience, And The Liberty Of The Church: Justifying The Controversiale Per Controversialius, Patrick Mckinley Brennan

Working Paper Series

This paper considers the central normative claim of Martha Nussbaum’s Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, viz., that the U.S. Constitution’s religion clauses should be construed to provide equal (and extensive) protection to the vulnerable human faculty called conscience. The paper argues that Nussbaum’s argument from Rawlsian political liberalism that leads to her normative constitutional claim amounts, perversely, to an attempt to justify the controversial by the more controversial. The paper goes on to argue that while equality and conscience are concepts that are reasonably contested, Nussbaum illegitimately gives them ...


The Partially Prudential Doctrine Of Mootness, Matthew I. Hall Apr 2009

The Partially Prudential Doctrine Of Mootness, Matthew I. Hall

Scholarly Works

The conventional understanding of mootness doctrine is that it operates as a mandatory bar to federal court jurisdiction, derived from the "cases or controversies" clause of the United States Constitution, Article III. In two crucial respects, however, this Constitutional model - which was first adopted by the Supreme Court less than 45 years ago - fails to account for the manner in which courts actually address contentions of mootness. First, the commonly-applied exceptions to the mootness bar are not derived from the "cases or controversies" clause and cannot be reconciled with the Constitutional account of mootness. Second, courts regularly consider and resolve ...


Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan Mar 2009

Delivering The Goods: Herein Of Mead, Delegations, And Authority, Patrick Mckinley Brennan

Working Paper Series

This paper argues, first, that the natural law position, according to which it is the function of human law and political authorities to instantiate certain individual goods and the common good of the political community, does not entail judges' having the power or authority to speak the natural law directly. It goes on to argue, second, that lawmaking power/authority must be delegated by the people or their representatives. It then argues, third, that success in making law depends not just on the exercise of delegated power/authority, but also on the exercise of care and deliberation or, in the ...


Direct Democracy And Public Choice, Elizabeth Garrett Jan 2009

Direct Democracy And Public Choice, Elizabeth Garrett

University of Southern California Legal Studies Working Paper Series

Public choice, with its focus on interest groups, relationships among institutions, and the importance of procedures and institutions in shaping policies, has been a significant influence on the literature studying direct democracy. Direct democracy encompasses two methods of providing voters with direct lawmaking authority – the initiative and the referendum – as well as a third method of directly influencing lawmakers outside of the regular electoral process – the recall. Twenty-seven states provide for the initiative, the popular referendum or both; and the legislative referendum is required in every state for adoption of constitutional amendments. When one considers that about half of the ...


Getting The Framers Wrong: A Response To Professor Geoffrey Stone, Samuel W. Calhoun Jan 2009

Getting The Framers Wrong: A Response To Professor Geoffrey Stone, Samuel W. Calhoun

Faculty Scholarship

Professor Geoffrey Stone’s Essay, The World of the Framers: A Christian Nation?, seeks to state “the truth about . . . what [the Framers] believed, and about what they aspired to when they created this nation.” Doing so will accomplish Professor Stone’s main objective, helping us to understand what “the Constitution allows” on a host of controversial public policy issues.3 Regrettably, Professor Stone’s effort is unsuccessful. Although he clearly tried to be fair in his historical account,4 the Essay ultimately presents a misleading view of the Framers’ perspective on the proper relationship between religion and the state.


Cross Burning A Hate Speech Under The First Amendment To The United States Constitution, Wilson Huhn Jan 2009

Cross Burning A Hate Speech Under The First Amendment To The United States Constitution, Wilson Huhn

Akron Law Publications

Under the First Amendment of the Constitution of the United States, ‘hate speech’ is constitutionally protected unless the circumstances of the case indicate that the speaker intended to threaten violence or provoke an immediate act of violence. While a person may be removed from a classroom or fired from employment for engaging in ‘hate speech’, under the First Amendment a person may be charged with a crime only if their statements constitute a threat or provocation of immediate violence. Moreover, even in cases where it is clear that a person is threatening violence or that violence is imminent, the person ...


Legacy Of Slaughterhouse. Bradwell, And Cruikshank In Constitutional Interpretation, Wilson Huhn Jan 2009

Legacy Of Slaughterhouse. Bradwell, And Cruikshank In Constitutional Interpretation, Wilson Huhn

Akron Law Publications

The Slaughterhouse Cases, Bradwell v. Illinois, and Cruikshank v. United States, which were all decided between 1873 and 1876, were the first cases in which the Supreme Court interpreted the 14th Amendment. The reasoning and holdings of the Supreme Court in those cases have affected constitutional interpretation in ways which are both profound and unfortunate. The conclusions that the Court drew about the meaning of the 14th Amendment shortly after its adoption were contrary to the intent of the framers of that Amendment and a betrayal of the sacrifices which had been made by the people of that period. In ...


Ten Questions On Gay Rights And Freedom Of Religion, Wilson Huhn Jan 2009

Ten Questions On Gay Rights And Freedom Of Religion, Wilson Huhn

Akron Law Publications

In my opinion most of the legal and social problems that arise under the Constitution stem from the belief, held by some people, that they are better than other people. They do not hate anyone. They simply believe that they are superior and that the law ought to treat them better than the other group. This is true of whites who think they are superior to blacks, men who think they are superior to women, and heterosexuals who think they are superior to homosexuals.

People have often justified these types of beliefs by appeal to religion and have attempted to ...


39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes Jan 2009

39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes

Akron Law Publications

The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time.

This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of ...


Infinite Hope-- Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly Jan 2009

Infinite Hope-- Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly

Akron Law Publications

The Fourteenth Amendment embodies hope. This article introduces the Symposium celebrating the 140th anniversary of its ratification, held at the University of Akron. The symposium was a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions. Our participants especially examined three of the Supreme Court's earliest forays into applying the Fourteenth Amendment: The Slaughter House Cases, Bradwell v. Illinois, and Cruikshank v. United States. Those forays succeeded in cramping ...