Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 5 of 5
Full-Text Articles in Law
Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner
Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner
Journal Articles
This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation …
Precedent And Speech, Randy J. Kozel
Precedent And Speech, Randy J. Kozel
Journal Articles
The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.
The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the …
State Action Doctrine And The Logic Of Constitutional Containment, Jud Mathews
State Action Doctrine And The Logic Of Constitutional Containment, Jud Mathews
Journal Articles
Deriding the state action doctrine is one of the great pastimes of American constitutional law. It has been described as a shamble and "incoherent." On its face, the core concept seems straightforward enough constitutional rights are rights against the government. But what counts as the "state action" that triggers the protection of rights seems to shift, maddeningly, from case to case in the Supreme Court's state action jurisprudence.
In this article, I aim to help make some sense of why the state action doctrine has developed as it has by setting it in a comparative and historical frame. It can …
Constitutional Economic Justice: Structural Power For "We The People", Martha T. Mccluskey
Constitutional Economic Justice: Structural Power For "We The People", Martha T. Mccluskey
Journal Articles
Toward that goal, this essay proposes a structural principle of collective economic power for “we the people.” This principle is both consistent with longstanding Constitutional ideals and tailored to the current challenges of neoliberal ideology and policy. It develops two premises: first, it rejects the neoliberal economic ideology that defines legitimate power and freedom as individualized “choice” constrained by an existing political economy. Instead, this proposed principle recognizes that meaningful political economic freedom and power fundamentally consist of access to collective organizations with potential to create a “more perfect union” with better and less constrained options. Second, the post-Lochner principle …
Capital Punishment Of Unintentional Felony Murder, Guyora Binder, Brenner Fissell, Robert Weisberg
Capital Punishment Of Unintentional Felony Murder, Guyora Binder, Brenner Fissell, Robert Weisberg
Journal Articles
Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the …