Law Commons^™

Government Election Advocacy: Implications Of Recent Supreme Court Analysis, Steven J. Andre

Steven J. Andre

The constitutional issue presented by government partisanship in elections is becoming increasingly significant for review by the U.S. Supreme Court. The high Court’s decisions in Arizona Free Enterprise Club, Citizens United v. FEC and Pleasant Grove City v. Summum shed significant light on how the high Court would handle the government campaigning question if it should ever accept review on the issue. This article reviews lower court treatment of the problem and describes the U.S. Supreme Court’s analysis of election and First Amendment concerns and applies that analysis to the question of partisan government expenditures during election contests.

The Reactionary Road To Free Love: How Doma, State Marriage Amendments And Social Conservatives Undermine Traditional Marriage, Scott Titshaw

Scott Titshaw

Much has been written about the possible effects on different-sex marriage of legally recognizing same-sex marriage. This article looks at the defense of marriage from a different angle: It shows how rejecting same-sex marriage results in political compromise and the proliferation of “marriage light” alternatives (e.g., civil unions, domestic partnerships, or reciprocal beneficiaries) that undermine the unique status of marriage for everyone. In the process, it examines several aspects of the marriage debate in detail. After describing the flexibility of marriage as it has evolved over time, the article focuses on recent state constitutional amendments attempting to stop further development. …

Talking Chalk: Talking Chalk: Defacing The First Amendment In The Public Forum, Marie A. Failinger

Marie A. Failinger

Over the past few years, protesters have been arrested for chalking messages on public forum sidewalks. This article discusses why such arrests are discriminatory and violate the jurisprudence of, and values behind, the Speech Clause

Adequacy Of Representation In Argentina: Federal Supreme Court’S Case Law, Bills Pending Before Congress And The Preliminary Draft Of A New Civil Code, Francisco Verbic

Francisco Verbic

The paper describes how adequacy of representation has recently arrived to Argentina’s legal system in the field of representative litigation. First of all, in the FederalSupreme Court’s case law. Then, in some bills which are nowadays pending before Congress. Lastly, in the Preliminary Draft of a new Civil Code recently announced by the President and the Chief Justice of the Federal Supreme Court. I take a critical approach towards the issue, particularly because of the little attention paid to such a relevant aspect of representative proceedings

Replacing And Amending Constitutions: The Logic Of Constitutional Change In Latin America, Gabriel L. Negretto

Gabriel L. Negretto

Since 1978, all countries in Latin America have either replaced or amended their constitutions. What explains the choice between these two substantively different means of constitutional transformation? This article argues that constitutions are replaced when they fail to work as governance structures or when their design prevents competing political interests from accommodating to changing environments. According to this perspective, constitutions are likely to be replaced when constitutional crises are frequent, when political actors lack the capacity to implement changes by means of amendments or judicial interpretation, or when the constitutional regime has a power-concentrating design. It is further argued that …

Breves Notas Sobre El Neoconstitucionalismo, Jhonathan Avila Romero

Jhonathan Avila Romero

El presente trabajo aborda las acepciones del neoconstitucionalismo.

Le Relazioni Giuridiche Nel Sistema Dei Diritti Sociali. Profili Teorici E Prassi Costituzionali, Erik Longo Dr.

Erik Longo

No abstract provided.

The America Invents Act May Be Constitutionally Infirm If It Repeals The Bar Against Patenting After Secret Commercial Use, Ron D. Katznelson

Ron D. Katznelson

No abstract provided.

Seeking A Better Life: Human Welfare Of Migrants In Irregular Situations In The United States And Europe, Erik Longo Dr.

Erik Longo

Today, studies regarding social rights need to be reconsidered and extended in light of emerging themes and issues presented by new migration trends. The United States and Europe, the two destinations often chosen by migrants, have very different views and policies around social rights. One of the most pressing issues in immigration studies is which protections should be extended to irregular or undocumented immigrants. The United States, a destination for significant numbers of irregular migrants in the world, do not explicitly recognize many rights for undocumented immigrants, especially those social rights requiring public expenditures. On the contrary, in many European …

Table Annexed To Article: “The Idea Of Freedom Might Be Too Great A Temptation For Them To Resist,”, Peter Aschenbrenner

Peter J. Aschenbrenner

In Dred Scott v. Sandford, 60 U.S. 393 (1857), the Supreme Court passed up a chance to thread George Washington’s experience in transporting household staff across state lines; Washington obeyed Pennsylvania’s predicate: that a human being held to slavery in one state became free after six months in Pennsylvania. Since the features of this species of mobilia varied with the jurisdiction, the Supreme Court should have taken this landscape into account. George Washington did not import, with his household workers, ‘rules and understandings’ from Virginia.

The Parable Of The Generous Pasha (And The Presumption Of Rejection), Peter Aschenbrenner

Peter J. Aschenbrenner

How can assemblies, that is, gatherings in venue, take action? Whether writing rules or taking decisions, assemblies oblige themselves to follow procedures; those assembled must prove that three presumptions of rejection have been overcome. A Pasha learns this lesson when he offers a gift to his people: Process matters. The Grand Vizier survives the lesson, proving that a sense of humor also matters.

Table Annexed To Article: Mr. Taney’S ‘Capital Gap’: Charting The Growth Of The Federal Colony System, 1789-1960, Peter Aschenbrenner

Peter J. Aschenbrenner

When Chief Justice Roger Taney conceded the existence of ‘colonies … established and maintained’ by the federal government, albeit denying ‘power given’ in the Constitution, he had the corpus of American history to contend with. The ‘capital gap,’ as OCL defines it, supplies several measures: the balance of power between regions, the remaining inventory of nascent (ready to be made) states (=territories), the remaining inventory of available territories in gross or subdividable, and for the latter two, the net of these inventories on a regional basis. Taney’s opinion, in this fourth in a series, rises or falls on the historical …

Chart Annexed To Article: The War Between The Stats: An Introduction To Taney’S Regrets, Peter Aschenbrenner

Peter J. Aschenbrenner

The decade of the 1850’s, leading up to Dred Scott v. Sandford, 60 U.S. 393 (1857), saw Americans debate the ‘war between the stats.’ OCL presents the third in its series of articles analyzing the mathematical logic of new state-making. Taney’s focus on the war between the stats explains Dred Scott, OCL suggests, as much as his inveterate racism, and, therefore, grounds any scholarly explanation of the coming war between the states.

Chart Annexed To Article: Crafting The Northwest Ordinance: Tracking The Paths Of Four Delegates, Peter Aschenbrenner

Peter J. Aschenbrenner

Tracking Paths of Four Men Who were Delegates and attendees at both the 1787 Federal Convention and the 1787 Session of the Continental / Confederation Congress, when combined with internal quorum requirements of the Congress, yields significant information about the adoption of the Northwest Ordinance. First in a series.

Some Reflections On Historical Elements In Contemporary Written Constitutions: Selected Examples And A Recent Case In Hungary, Stephan Foldes

Stephan Foldes

Examples of historical law being included in today’s constitutional law are provided by constitutional enactments of the United States, Canada, Sweden, Norway, Belgium, Finland, Luxembourg, Germany, Ireland, France, Turkey, Slovakia, the Czech Republic, and Hungary. Issues of interpretation and application are again raised by a recent case decided in the Constitutional Court of Hungary.

The Full Faith And Credit Clause: Do Factual Executive Documents Require Equivalent Treatment Between States?, Darren Prum

Darren A. Prum

Largely a development of the last half-century of government expansion, many of the health, safety, and welfare protections required by the federal government now fall upon the states. With the states picking up the load, many of the jurisdictions elect to administrate these duties through agencies. These agencies promulgate numerous regulations and enforce them as well. In making these laws and regulations, the government may require the public to submit documents that convey factual information in order to achieve the overall policy goal.

During these interactions with the public, the statute or regulations provide the guidance as to what qualifies …

El Precedente En El Tribunal Constitucional: ¿Doctrina Judicial O Compromiso Con Votos Particulares?, Sergio Verdugo Sverdugor@Udd.Cl, Nicolás Galli

Sergio Verdugo R.

Se propone una metodología para evaluar la predictibilidad de las sentencias del Tribunal Constitucional considerando la coherencia experimentada en los votos individuales de sus ministros. Tomando algunos casos considerados especialmente relevantes por especialistas consultados, y observando que los ministros disidentes no suelen modificar sus posiciones para seguir las posiciones de la mayoría en casos futuros, se concluye que la mantención de las doctrinas del Tribunal Constitucional dependerá en gran medida de la composición del mismo, y no solamente de lo que se haya expresado en sentencias precedentes.

The Ministerial Exception And The Limits Of Religious Sovereignty, Ian C. Bartrum

Ian C Bartrum

This paper explores the scope of independent religious sovereignty in the context of the ministerial exception.

Los Contratos Con Eficacia De Protección A Terceros: A Proposito De La Responsabilidad Civil Causada Por Daños A Los Terceros, Daniel Alexander Febrero Frantzen

Daniel Alexander Febrero Frantzen

No abstract provided.

Towards Determining Legal Parentage By Agreement In Israel, Yehezkel Margalit

Hezi Margalit

In Israel as in other parts of the world, families, parenthood, and relations between parents and children have changed dramatically over the past few decades. So, too, developments in modern medicine have enhanced the ability to separate sexuality from fertility and parenthood. Many researchers feel that the legal system has not kept pace with these changes, and that traditional models of familial relationships no longer provide adequate tools for dealing with them. In order to bridge the gap between a desired social status and current law, a growing number of parents seek to regulate the status, rights, and obligations of …

Conditions Of Pre-Trial Bail In Texas -- Oppressive And Excessive?, Charles B. Frye

Charles B Frye

Judges have wide discretion in not only setting the amount of the pre-trial bond in a criminal case, but also in requiring "conditions" which apply to the defendant's behavior during pre-trial release. Often, these conditions are as onerous as the punishment for the crime for which the defendant has been accused, but not yet convicted.

Principio De Solidaridad, Acciones Populares Y Derechos Colectivos En Colombia: Aproximaciones Críticas A La Sentencia C-630 Del 2011 De La Corte Constitucional, Daniel Monroy

Daniel A Monroy C

ABSTRACT

This article presents a serious rapprochement to the arguments that the Constitutional Court put forward in the judgment C- 630 of 2011. The main objective of this article is to prove the weakness of the arguments, especially on those that are supported in the constitution´s principle of solidarity and those that derive in “duties’s consideration. This article beginning with some critiques to the class actions rights and it protection´s mechanism, bases in economic analysis. Afterward, base in the general description that the court have establish in the principle of solidarity, this article explain the different way how the court …

Table Annexed To Article: Mr. Madison Speaks Out: Re-Creation Text Sourced From The Farrand Survey And Detached Memoranda, Peter Aschenbrenner

Peter J. Aschenbrenner

The text of James Madison�s Letters from Farrand�s Volume III are analyzed along with Madison�s �Detached Memoranda,� his constitutional testament.

Table Annexed To Article: Madison’S Top Twenty Words In Farrand And The Detached Memoranda,, Peter Aschenbrenner

Peter J. Aschenbrenner

Abstract. Madison’s entries in Farrand after 1817, his Detached Memoranda, and his essays in The Federalist Papers are analyzed for word frequencies.

¿Es Constitucional Proceder Al Corte De Agua Y Luz En Caso De Falta De Pago En Un Condominio?, Julio Eduardo Pozo Sánchez

Julio Eduardo Pozo Sánchez

Uno de los temas que frecuentemente se presenta en la realidad –en especial, cuando de propiedad horizontal y común se refiere (departamentos, condominios, etc.)– es el recorte de los servicios básicos de agua potable y luz eléctrica en los inmuebles de los usuarios-propietarios deudores. El autor analiza tal situación, a partir de la normativa especializada y la profusa jurisprudencia del Tribunal Constitucional, concluyendo que la suspensión de dichos servicios es inconstitucional; pues, por un lado, se estaría afectando un derecho fundamental (el agua potable) y, por el otro, una condición necesaria para la consecución de otros derechos, como el libre …

Radiography To The Chilean Human Rights Institution: Between Law And Politics, Sergio Verdugo Sverdugor@Udd.Cl, José Francisco Garía

Sergio Verdugo R.

The article examines the fundamental recommendations for the national human rights institutions (NHRI) to function with proper autonomy against the state and, also, against NGOs that try to capture the commission´s agenda. The authors analyse the institutional design of the Chilean Human Rights Institution (INDH) and evaluates the profile and the nomination process of its membership. The paper provides evidence that demonstrates that the INDH´s research agenda is associated with a partial political view. Then, the authors suggest certain changes to strengthen the independence of the INDH.

Obamacare And Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the “Obamacare” cases, the Court considers whether the Affordable Care Act (“ACA”) exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact …

Extract From Tara Ross, Enlightened Democracy: The Case For The Electoral College (2d Ed. 2012), Citing Tillman's Betwixt Principle And Practice, Seth Barrett Tillman

Seth Barrett Tillman

Extract from Tara Ross, Enlightened Democracy: The Case for the Electoral College 245 n.55 (2d ed. 2012), citing Tillman's Betwixt Principle and Practice.

[May 27, 2013]

There Is But One Sword That Defends The Rights Of Man- Bringing Lgbt Rights Out Of The Closet, Jonathan M. Bhagan

Jonathan m Bhagan

Introduction. International norms of human rights are a powerful force for interpreting, protecting and growing rights on the domestic plane. Courts throughout the Commonwealth already look to international norms to flesh out rights, whether they are found in the constitutional jurisprudence of other common law states in Treaties or Treaty based case law. While some schools of jurisprudence claim that International and Domestic law are two separate spheres , throughout the paper it will be shown that judges have consistently looked to foreign and International Law as inspiration and support for their decisions in key human rights cases. This trend …

Universidad Católica De Santa María De Arequipa, Ramiro De Valdivia Cano

Ramiro De Valdivia Cano

La educación en la Universidad Católica de Santa María de Arequipa (Perú) promueve la formación profesional basada en la defensa de la dignidad humana y de los Derechos Fundamentales bajo la inspiración del Evangelio.