Law Commons^™

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

Cornell Law Faculty Publications

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct one: Are …

Judges Playing Jury: Constitutional Conflicts In Deciding Fair Use On Summary Judgment, Ned Snow

Faculty Publications

Issues of fair use in copyright cases are usually decided at summary judgment. But it was not always so. For well over a century, juries routinely decided these issues. The law recognized that fair use issues were highly subjective and thereby inherently factual — unfit for summary disposition by a judge. Today, however, all this has been forgotten. Judges are characterizing factual issues as purely legal so that fair use may be decided at summary judgment. Even while judges acknowledge that reasonable minds may disagree on these issues, they characterize the issues as legal, preventing them from ever reaching a …

Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progressive Originalism, Dale E. Ho

Dale E Ho

The Supreme Court’s decision in last term’s gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that “we are all originalists now.” Surprisingly, many progressive academics were disappointed. For “progressive originalists,” McDonald was a missed opportunity to overrule the Slaughter-House Cases and to revitalize the Privileges or Immunities Clause of the Fourteenth Amendment. In their view, such a ruling could have realigned progressive constitutional achievements with originalism and relieved progressives of the albatross of substantive due process, while also unlocking long-dormant constitutional text to serve as the source of new unenumerated …

From One [Expletive] Policy To The Next: The Fcc's Regulation Of "Fleeting Expletives" And The Supreme Court's Response, Brandon J. Almas

Federal Communications Law Journal

After the broadcast of the 2003 Golden Globe Awards, during which the lead singer from U2 uttered an expletive on national television, the FCC revisited its prior policy on the use of expletives on the airwaves and declared, for the first time, that "fleeting expletives" are offensive according to community standards and are therefore finable. In a lawsuit filed in the Second Circuit Court of Appeals, Fox Television Stations, Inc. along with a number of other broadcasters argued that the FCC's new policy was arbitrary and capricious under the Administrative Procedure Act and unconstitutional under the First Amendment. The Second …

Examining The Fcc's Indecency Regulations In Light Of Today's Technology, Elizabeth H. Steele

Federal Communications Law Journal

Indecency regulations promulgated by the FCC used to be effective, but today's technological advances call those regulations into question. With the prevalence of digital video recorders and the availability of television shows on the Internet, children have unprecedented access to material broadcast at all times of day. As a result, the "safe harbor" rationale restricting the broadcast of indecent material no longer makes sense. A move toward deregulation is the most logical step to take, as it would prevent any First Amendment violations and would allow the networks freedom to broadcast material that the public may be interested in without …

Presidential Succession: The Art Of The Possible, James E. Fleming

Faculty Scholarship

I am deeply honored that John D. Feerick invited me to come back to Fordham University School of Law and appear in this splendid conference. Yet I hasten to say that, when it comes to presidential succession, John Feerick and Joel K. Goldstein are tough acts to follow. Indeed, in an otherwise wonderfully organized conference, the line of succession here is flawed. I suppose I should declare myself unqualified to follow these experts on presidential succession! I shall bring the perspective of the constitutional theory generalist to bear on the questions framed for our panel.

Constantly Approximating Popular Sovereignty: Seven Fundamental Principles Of Constitutional Law, Wilson R. Huhn

William & Mary Bill of Rights Journal

No abstract provided.

The Melendez-Diaz Dilemma: Virginia's Response, A Model To Follow, Anne Hampton Andrews

William & Mary Bill of Rights Journal

No abstract provided.

Huppert, Reilly, And The Increasing Futility Of Relying On The First Amendment To Protect Employee Speech, John Q. Mulligan

William & Mary Bill of Rights Journal

No abstract provided.

Faulty Foundations: How The False Analogy To Routine Fingerprinting Undermines The Argument For Arrestee Dna Sampling, Corey Preston

William & Mary Bill of Rights Journal

No abstract provided.

Breaking The Dress Code: Protecting Transgender Students, Their Identities, And Their Rights., Zenobia V. Harris

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.

Lawmakers As Lawbreakers, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

How would Congress act in a world without judicial review? Canlawmakers be trusted to police themselves? This Article examinesCongress’s capacity and incentives to enforce upon itself “the law ofcongressional lawmaking”—a largely overlooked body of law that iscompletely insulated from judicial enforcement. The Article exploresthe political safeguards that may motivate lawmakers to engage inself-policing and rule-following behavior. It identifies the majorpolitical safeguards that can be garnered from the relevant legal,political science, political economy, and social psychology scholarship,and evaluates each safeguard by drawing on a combination oftheoretical, empirical, and descriptive studies about Congress. TheArticle’s main argument is that the political safeguards that …

Constitutional Democracy And Women Structures Of Opportunity, Carlos Luiz Strapazzon

Carlos Luiz Strapazzon

This article is concerned to the concept of political inclusion. The first part investigates the relations between democracy and inclusion from a contemporary theoretical framework. The second part presents an unprecedented organization of electoral data from around the world, as well as results of local, state and federal elections in Brazil during the 90's in order to discuss its impacts on female political empowerment. The last part discusses the shortage of women inclusion. It aims to provide clarification to some challenges to brazilian democracy political system and the right of equal consideration of interests.

Revisões Constitucionais Inconstitucionais?, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Algumas propostas de revisão constitucional parecem ignorar que tal procedimento está constitucionalizado, e que há regras para o fazer, assim como vários limites a respeitar. Só podem ser consideradas iniciativas de divulgação de ideários políticos porque, se por absurdo fossem por diante, acabariam por constituir revisões constitucionais inconstitucionais. Um dos pontos mais nevráligicos da polémica (não só portuguesa) sobre as mutações constitucionais é o Estado Social. Sobre ele se gerou um amplo consenso na Constituinte, que persiste e até talvez se haja aprofundado na sociedade de hoje. Ele faz intrinsecamente parte do programa da Constituição vigente, pelo que revê-la de …

Visões E Revisões Constitucionais, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Os tempos actuais são apesar de tudo excelentes para reflectir sobre o vero alcance das normas. E sobretudo das normas generosas da nossa Constituição democrática e social. Não se pense que a Constituição é milagrosa. As crises, como aquela em que nos encontramos, colocam-lhe desafios sérios, e é a força das coisas, dos factos, e não o normativo dos textos, quem impera normalmente.

Unconstitutionality And Procedural Defects. A Problem Solved?, Sergio Verdugo Sverdugor@Udd.Cl

Sergio Verdugo R.

The debate related to the capacity of the Chilean action of unconstitutionality for reviewing the procedural defects of the statutes in the law making process, existing when this action was in the jurisdiction of the Supreme Court, still should remain. The author, after critically reviewing the reaction of the legal academia to the constitutional amendment of 2005, discovers that the decisions of the current Constitutional Court are contradictory. Then, he proposes a frame for finding a solution, which begins analyzing the scope of the action of unconstitutionality and the concrete judicial review, and ends with possible alternative solutions

November 30,2010: There Is No G-O-D In America, Bruce Ledewitz

Hallowed Secularism

Blog post, “There is no G-o-d in America“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Constitutional Right To Informational Privacy: Nasa V. Nelson, Russell T. Gorkin

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

November 25, 2010: Happy Thanksgiving, Bruce Ledewitz

Hallowed Secularism

Blog post, “Happy Thanksgiving“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 23, 2010: Religion, Art, Science And Philosophy Are Invitations, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Religion, Art, Science and Philosophy Are Invitations“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Rethinking The Order Of Battle In Constitutional Torts: A Reply To John Jeffries, Nancy Leong

NULR Online

The Supreme Court’s decision in Pearson v. Callahan ended an eight-year experiment in the adjudication of qualified immunity claims. That experiment began with Saucier v. Katz, in which the Court held that lower courts mustdecide whether a government officer violated a plaintiff’s constitutional rights before addressing the question of whether the government officer was entitled to immunity. The Court’s rationale for requiring lower courts to first address the merits was the need to clarify constitutional law for the benefit of both government actors (who could then better conform their behavior to constitutional standards) and future plaintiffs (who could then …

November 20, 2010: The Task Of Secularism, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Task of Secularism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Is A Mentally Ill Defendant Still Considered Competent To Waive The Right To Counsel In New York After Indiana V. Edwards?, John H. Wilson

Pace Law Review

No abstract provided.

November 18, 2010: “Getting Honest”, Bruce Ledewitz

Hallowed Secularism

Blog post, ““Getting Honest” “ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Models Of Religious Freedom, Marcel Stuessi Swiss Human Rights Lawyer

Marcel Stüssi

MODELS OF RELIGIOUS FREEDOM

The Swiss, US American, and Syrian models are in this thesis illustrated by way of three representations. The Analytical Representation comprises more than statements of posi-tive law or mechanical comparison. Each chapter is introduced by thought-forms predominant in the respective legal culture. The objective of the Methodological Representation is to investigate the logic and legitimate pattern by which the Swiss and US American judiciary meth-odologically come to the conclusion that an alleged governmental inter-ference is covered under the right to religious freedom. The last dimen-sion, which is the Eclectic Representation, pursues a dual aim. Firstly, the …

November 16, 2010: How Is Reality God-Like?, Bruce Ledewitz

Hallowed Secularism

Blog post, “How is Reality God-Like?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 14, 2010: Global Warming, Bruce Ledewitz

Hallowed Secularism

Blog post, “Global Warming“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Resolving Incompatibilities Of Bilateral Investment Treaties Of The Eu Member States With The Ec Treaty: Individual And Collective Options, Ahmad Ali Ghouri

Ahmad Ali Ghouri

Bilateral Investment Treaties (BITs) concluded by the EU Member States contain substantially similar clauses, including free movement of capital and investor-to-state dispute resolution. Article 307 EC provides for the primacy of pre-accession treaties over the EC Treaty and simultaneously requires the Member States to eliminate their mutual incompatibilities. The European Court of Justice has declared that free movement of capital clauses of Austrian and Swedish pre-accession extra-EU BITs are incompatible with the EC Treaty as they will impede any restrictions on the movement of capital imposed as future Community legislation. A similar ‘free movement of capital’ clause is present in …

November 11, 2010: So, What About God?, Bruce Ledewitz

Hallowed Secularism

Blog post, “So, What About God?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 7, 2010: How To Fix The Establishment Clause, Bruce Ledewitz

Hallowed Secularism

Blog post, “How to Fix the Establishment Clause“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.