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Series

Constitutional Law

2012

Discipline
Institution
Publication
File Type

Articles 1 - 30 of 41

Full-Text Articles in Law

Thoughts On The German Constitutional Court Decision On The Esm, Richard Stith Oct 2012

Thoughts On The German Constitutional Court Decision On The Esm, Richard Stith

Law Faculty Publications

No abstract provided.


The 2011-2012 Supreme Court Term: Decisions In Constitutional Law, Wilson Huhn Oct 2012

The 2011-2012 Supreme Court Term: Decisions In Constitutional Law, Wilson Huhn

Akron Law Publications

This presentation reviews the principal decisions of the Supreme Court in the field of Constitutional Law during the 2011-2012 Term of Court. The presentation primarily focuses on the Court's decisions involving the Arizona immigration law (SB 1070), the federal Stolen Valor Act, the "ministerial exception" to the anti-discrimination laws, and above all the Patient Protection and Affordable Care Act.


The Kafkaesque Experience Of Immigrants With Mental Disabilities: Navigating The Inexplicable Shoals Of Immigration Law, Jennifer L. Aronson Sep 2012

The Kafkaesque Experience Of Immigrants With Mental Disabilities: Navigating The Inexplicable Shoals Of Immigration Law, Jennifer L. Aronson

College of Law Student Research & Writing Projects

Law and literature comes in two forms: law as literature and law in literature, the latter referring to the exploration of legal issues in great literary texts. Law in literature scholars place a high value on the "independent" view of the literary writers as he or she sees the law. They believe that these authors have something to teach legal scholars and lawyers about the human condition. “The Trial” by Franz Kafka, concerns human beings caught up in social and political dilemmas. Kafka offers readers an insight to the nature of totalitarianism and forces us to ask hard questions about ...


Same-Sex Marriage Litigation Update - September 17, 2012, Wilson Huhn Sep 2012

Same-Sex Marriage Litigation Update - September 17, 2012, Wilson Huhn

Akron Law Publications

Same-sex marriage cases are reaching the federal circuit courts and may be heard by the Supreme Court in the near future. This presentation summarizes the status of same-sex marriage litigation.


The Sixth Amendment's Textual Core, Sanjay K. Chhablani Jul 2012

The Sixth Amendment's Textual Core, Sanjay K. Chhablani

College of Law Faculty - Scholarship

The Sixth Amendment, framed in an atmosphere of deep mistrust of a potentially oppressive government, broadly requires that defendants be provided seven fundamental procedural protections. Over the course of the past five decades, the scope and meaning of these critical safeguards have undergone tremendous change, with series of expansive and restrictive readings. Through this jurisprudential development, several provisions of the Sixth Amendment have been interpreted in a manner that contravenes the plain meaning of its text, rendering the Amendment far less protective of individual liberty. After developing a comprehensive historical account of the Court’s Sixth Amendment jurisprudence, this Article ...


The Reality Of Eu-Conformity Review In France, Juscelino F. Colares Jul 2012

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

College of Law Faculty - Scholarship

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU ...


Rethinking Children As Property, Kevin Noble Maillard Jul 2012

Rethinking Children As Property, Kevin Noble Maillard

College of Law Faculty - Scholarship

Despite the collective view in law and social practice that it is intrinsically taboo to consider human beings as chattel, the law persists in treating children as property. Applying principles of property, this Article examines paternity disputes to explain and critique the law’s view of children as property of their parents. As evidenced in these conflicts, I demonstrate that legal paternity exposes a rhetoric of ownership, possession, and exchange. The law presumes that a child born to a married woman is fathered by her husband, even when irrefutable proof exists that another man fathered the child. Attempts by the ...


Discretionary Persistent Felony Offender Sentencing In New York: Can It Survive Apprendi ?, Joseph E. Fahey Jul 2012

Discretionary Persistent Felony Offender Sentencing In New York: Can It Survive Apprendi ?, Joseph E. Fahey

College of Law Faculty - Scholarship

This article examines the Discretionary Persistent Felony Offender sentencing provision contained in New York Penal law section 70.10 and its vitality in the wake of Apprendi v. New Jersey. It examines the disparity in the controlling New York Court of Appeals cases and the holdings in Apprendi and its progeny. It also discusses ways in which the sentencing court can apply the sentnecing statute and avoid Apprendi pitfalls.


Throwing Away The Key: An Examination Of New York's Sex Offender Civil Commitment Law, Joseph E. Fahey Jul 2012

Throwing Away The Key: An Examination Of New York's Sex Offender Civil Commitment Law, Joseph E. Fahey

College of Law Faculty - Scholarship

This article examines New York's newly enacted sex offender civil commitment law entitled"Sex Offenders Requiring Civil Commitment or Supervision." It examines the statute in detail, commenting on its various statutory and constiutional defeciencies, as well as its potential impact on the New York State Unified Court System.


Scalia’S Ship Of Revulsion Has Sailed: Will Lawrence Protect Adults Who Adopt Lovers To Help Ensure Their Inheritance From Incest Prosecution?, Terry L. Turnipseed Jul 2012

Scalia’S Ship Of Revulsion Has Sailed: Will Lawrence Protect Adults Who Adopt Lovers To Help Ensure Their Inheritance From Incest Prosecution?, Terry L. Turnipseed

College of Law Faculty - Scholarship

SCALIA’S SHIP OF REVULSION HAS SAILED: WILL LAWRENCE PROTECT ADULTS WHO ADOPT LOVERS TO HELP ENSURE THEIR INHERITANCE FROM INCEST PROSECUTION? Terry L. Turnipseed Associate Professor of Law Syracuse University College of Law in•cest (ĭn'sěst') Sexual relations between family members or close relatives, including children related by adoption. There is a growing trend in this country – startling to many – of adopting one’s adult lover or spouse for various reasons, mostly inheritance-based. Should one who adopts his or her adult lover or spouse be prosecuted for incest? Think about it: the person is having sexual relations with ...


The President And The Autopen: It Is Unconstitutional For Someone Or Something To Sign A Bill Outside Of The President's Presence, Terry L. Turnipseed Jul 2012

The President And The Autopen: It Is Unconstitutional For Someone Or Something To Sign A Bill Outside Of The President's Presence, Terry L. Turnipseed

College of Law Faculty - Scholarship

On May 26, 2011, only hours before three provisions of the Foreign Intelligence Surveillance Act were scheduled to expire, Congress passed an extension. For days, the White House had someone ready to fly to Europe with the legislation in hand for the President to sign, but Congress had been tardy. It seemed quite important to the White House that none of these provisions lapse for any length of time, even the relatively short time it would take to fly from Washington to France. With this urgency as a backdrop, the President was awakened at 5:45 a.m. Central European ...


Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton Jul 2012

Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton

Faculty Publications

No abstract provided.


Law, Power, And "Rumors Of War": Robert Jackson Confronts Law And Security After Nuremberg, Mary L. Dudziak Apr 2012

Law, Power, And "Rumors Of War": Robert Jackson Confronts Law And Security After Nuremberg, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

Supreme Court Justice Robert Jackson’s most important legacy was his role as chief prosecutor for the United States at the Nuremberg Trials. This essay follows Jackson’s legal thought from his return to the United States after Nuremberg, until his death in 1954. Jackson hoped that the lesson of Nuremberg would be “to establish the supremacy of law over such lawless and catastrophic forces as war and persecutions.” Jackson changed law that applied to warfare. In looking to the future, he seems to have assumed that although law had changed, war would retain its essential character. Yet as the ...


The Long And Winding Road From Monroe To Connick, Sheldon Nahmod Apr 2012

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

All Faculty Scholarship

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 ...


The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash Apr 2012

The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash

Faculty Publications

Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the Defense of Marriage Act, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status ...


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 ...


First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen Mar 2012

First Amendment Privacy And The Battle For Progressively Liberal Social Change, Anita L. Allen

Faculty Scholarship at Penn Law

No abstract provided.


Dialogue And Constitutional Duty, Mark Tushnet Feb 2012

Dialogue And Constitutional Duty, Mark Tushnet

Schmooze 'tickets'

No abstract provided.


The Past And Future Of Deinstitutionalization Litigation, Samuel R. Bagenstos Feb 2012

The Past And Future Of Deinstitutionalization Litigation, Samuel R. Bagenstos

Law & Economics Working Papers

Two conflicting stories have consumed the academic debate regarding the impact of deinstitutionalization litigation. The first, which has risen almost to the level of conventional wisdom, is that deinstitutionalization was a disaster. The second story does not deny that the results of deinstitutionalization have in many cases been disappointing. But it challenges the suggestion that deinstitutionalization has uniformly been unsuccessful, as well as the causal link critics seek to draw with the growth of the homeless population. This dispute is not simply a matter of historical interest. The Supreme Court’s 1999 decision in Olmstead v. L.C., which held ...


War-Time: An Idea, Its History, Its Consequences, Mary L. Dudziak Jan 2012

War-Time: An Idea, Its History, Its Consequences, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

When is wartime? On the surface, it is a period of time in which a society is at war. But we now live in what President Obama has called "an age without surrender ceremonies," as the Administration announced an "end to conflict in Iraq," even though conflict on the ground is ongoing. It is no longer easy to distinguish between wartime and peacetime. In this inventive meditation on war, time, and the law, Mary Dudziak argues that wartime is not as discrete a time period as we like to think. Instead, America has been engaged in some form of ongoing ...


Excerpts From Chief Justice Roberts' Opinion In Nfib V. Sebelius, Wilson Huhn Jan 2012

Excerpts From Chief Justice Roberts' Opinion In Nfib V. Sebelius, Wilson Huhn

Akron Law Publications

In NFIB v. Sebelius the Supreme Court upheld the constitutionality of all but one of the provisions of the Patient Protection and Affordable Care Act. The opinion of Chief Justice Roberts is the controlling opinion in all respects. This is an editted summary of the Chief Justice's opinion.


The Future Interpretation Of The Constitution, Wilson Huhn Jan 2012

The Future Interpretation Of The Constitution, Wilson Huhn

Akron Law Publications

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 Future Interpretation Of The Constitution As A Result Of The Reelection Of President Barack Obama, Wilson Huhn Jan 2012

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

Akron Law Publications

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 Jan 2012

The Civil Rights Movement And The Constitution, Wilson Huhn

Akron Law Publications

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 ...


The Constitutionality Of The Patient Protection And Affordable Care Act, Wilson Huhn Jan 2012

The Constitutionality Of The Patient Protection And Affordable Care Act, Wilson Huhn

Akron Law Publications

This presentation of April 26, 2012 presents data explaining why universal health care coverage is necessary, what the Patient Protection and Affordable Care Act will accomplish, and the constitutional challenges that the Supreme Court is considering.


The Decision Of The Supreme Court On The Constitutionality Of The Ppaca, Wilson Huhn Jan 2012

The Decision Of The Supreme Court On The Constitutionality Of The Ppaca, Wilson Huhn

Akron Law Publications

This powerpoint presentation summarizes the opinion of Chief Justice Roberts in NFIB v. Sebelius, upholding the constitutionality of the Patient Protection and Affordable Care Act


The Growing Acceptance And Legal Recognition Of Same-Sex Marriage In America Constitutes A Victory For Reality-Based Thinking, Wilson Huhn Jan 2012

The Growing Acceptance And Legal Recognition Of Same-Sex Marriage In America Constitutes A Victory For Reality-Based Thinking, Wilson Huhn

Akron Law Publications

During the 20th century “pragmatism” emerged as the leading American philosophy and policy analysis – also called “legal realism” – became the dominant method of interpreting American law. The lightning speed with which same-sex marriage is gaining acceptance in the United States is due to the fact that Americans embrace realistic rather than ideological forms of thinking, and the growing recognition of same-sex marriage in the law is due to the fact that we interpret our Constitution in accordance with realistic analysis.


The Secondary-Effects Doctrine: Stripping Away First Amendment Freedoms, David L. Hudson Jr. Jan 2012

The Secondary-Effects Doctrine: Stripping Away First Amendment Freedoms, David L. Hudson Jr.

Law Faculty Scholarship

An essay on the secondary-effects doctrine and its threat to First Amendment.freedoms.


Nigro V. United States: The Most Disingenuous Supreme Court Opinion, Ever, A. Christopher Bryant Jan 2012

Nigro V. United States: The Most Disingenuous Supreme Court Opinion, Ever, A. Christopher Bryant

Faculty Articles and Other Publications

The chief challenge presented by an opportunity to comment on the "Worst Supreme Court Opinion, Ever," is that so many candidates vie for the title. Fortunately, Professor Stempel has stipulated that the identification of a champion in no way implies acquiescence in any unnamed judicial wrongs. No sane scholar could accept the invitation on any other terms.

No doubt my choice of the Court's Prohibition-Era ruling in Nigro v. United States is a surprising one. Most scholars and lawyers have probably never even heard of the decision nor of the 1914 federal narcotics law that it unconscionably upheld. Nigro ...