Law Commons^™

Поняття «Виборча Система»: Вітчизняний Та Зарубіжний Досвід, Maryana Afanasyeva

Maryana V. Afanasyeva

В статті робиться висновок про недоцільність виокремлення вузького та широкого значення дефініції "виборча система". Системний аналіз політико-правового явища - виборча система - обґрунтовує його авторське визначення. Автор зазначає, що виборча система - це політико-правовий інститут, який забезпечує реалізацію виборчих прав громадян, формування владних виборних органів та певний тип організації публічної влади через сукупність відносно самостійних, але взаємообумовлених та взаємодіючих в межах виборчого процесу, конституційно-правових технологій (способів, прийомів, методів, критеріїв) балотування кандидатів на виборні посади, голосування виборців, підрахунку голосів та встановлення результатів виборів. В статье делается вывод о нецелесообразности выделения узкого и широкого значения дефиниции "избирательная система". Системный анализ политико-правового явления …

Circumstance And Strategy: Jointly Authored Supreme Court Opinions, Laura Ray

Laura K. Ray

The standard form of authorship for a Supreme Court opinion is a single author who then may be joined by any colleagues who are in agreement. There is, however, a significant and overlooked variant of this form, one used in a small cluster of major cases, most of them landmark decisions, over the past seventy years: the jointly authored opinion. In these cases, there may be as many as nine authors signing an opinion (as in Cooper v. Aaron) or as few as two (as in McConnell v. FEC). All the signatories may be credited with the entire opinion (as …

To Swear Or Not To Swear: Using Foul Language During A Supreme Court Oral Argument, Alan Garfield

Alan E Garfield

This essay considers the provocative question of whether it is strategically wise for a lawyer to use foul language during a Supreme Court oral argument. This issue doesn’t come up often. But it does when a lawyer claims his client’s First Amendment rights were violated when the government punished him for using foul language. If the lawyer doesn’t use his client’s offensive words, he risks conceding that these words are so horrid they warrant suppression. But if he does use the words, he risks alienating justices who find the words unseemly. The essay uses the “fleeting expletives” case that was …

Limited Government And The Bill Of Rights, Patrick Garry

Patrick M. Garry

No abstract provided.

Western Union, The American Federation Of Labor, Google, And The Changing Face Of Privacy Advocates, Wesley Oliver

Wesley M Oliver

No abstract provided.

Invisible Federalism And The Electoral College, Derek Muller

Derek T. Muller

What role do States have when the Electoral College disappears? With the enactment of the National Popular Vote on the horizon and an imminent presidential election in which a nationwide popular vote determines the winner, States would continue to do what they have done for hundreds of years — administer elections. The Constitution empowers States to decide who votes for president, and States choose who qualifies to vote based on factors like age or felon status. This power of States, a kind of “invisible federalism,” is all but ignored in Electoral College reform efforts. In fact, the power of the …

Principles Of Contracts For Governing Services, Tom Bell

Tom W. Bell

The state provides governance services within a specified territory, demanding payment in the form of taxes, regulations, and compulsory service. Some citizens expressly consent to that bargain, as when the President of the United States swears to preserve, protect, and defend the Constitution. With regard to many of its subjects, however, the state can claim no more than hypothetical consent, leaving its use of force only weakly justified. Governing services provided under contract, founded in express consent, enjoy a more justified relationship with their citizen-customers. Private institutions already provide the same legal services as the state, offering rules, dispute resolution, …

In Search Of A Forum For The Families Of The Guantanamo Disappeared, Peter Honigsberg

Peter J Honigsberg

The United States government has committed grave human rights violations by disappearing people during the past decade into the detention camps in Guantanamo Bay, Cuba. And for nearly thirty years, beginning with a 1983 decision from a case arising in Uruguay, there has been a well-developed body of international law establishing that parents, wives and children of the disappeared suffer torture, or cruel, inhuman or degrading treatment (CID).

This paper argues that the rights of family members were severely violated when their loved ones were disappeared into Guantanamo. Family members of men disappeared by the United States have legitimate claims …

Semiprocedural Judicial Review, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This Article explores a novel cross-national phenomenon: the emergence of a new judicial review model that merges procedural judicial review with substantive judicial review. While this model is not yet fully defined, it has already spurred much controversy. The Article explicates this emerging model, which it terms 'semiprocedural review,' and provides a theoretical exploration of both its justifications and its objectionable aspects. It concludes by evaluating semiprocedural review's overall justifiability and suggesting guiding principles for a more legitimate model of semiprocedural review. The Article pursues these goals through the unique perspective of juxtaposing semiprocedural review with 'pure procedural judicial review' …

A Tale Of Two Ironies: In Defense Of Tort, David Partlett, William Gill

William Gill

Appellate Courts As First Responders: The Constitutionality And Propriety Of Appellate Courts' Resolving Issues In The First Instance, 87 Notre Dame Law Review 1521 (2012)., Joan Steinman

Joan E. Steinman

No abstract provided.

Constitutional Protection For Environmental Rights: The Benefits Of Environmental Process, Erin Daly

Erin Daly

More and more constitutions around the world -- from Bangladesh to Bolivia, and from the Philippines to the countries of the EU -- are explicitly protecting environmental rights and the values of a clean and healthy environment. In many instances, environmental rights are recognized not as substantive entitlements (which would allow litigants to sue if the government polluted their rivers or clearcut their forests), but as procedural rights. Examples of procedural rights include imposing on governments the obligation to consult with communities before they take actions that will affect their environment or giving individuals the right to participate in governmental …

Not The Power To Destroy: An Effects Theory Of The Tax Power, Robert D. Cooter, Neil Siegel

Robert Cooter

The Supreme Court of the United States requires a tax power jurisprudence that is consistent with its restrictions on the Commerce Clause. Otherwise Congress could “tax” its way around any judicially enforceable limits on the commerce power. Existing case law, however, does not offer such jurisprudence. This paper provides the missing theory by analyzing constitutional text, structure, history, and precedent with help from economics. The key difference between a tax and a penalty turns on the effects of the exaction. Taxes raise revenues because they dampen behavior without preventing it for many people. Penalties, by contrast, raise little or no …

Blackmun (And Scalia) At The Bat: The Court's Separation-Of-Powers Strike Out In Freytag: Symposium: The Worst Supreme Court Case Ever, Tuan Samahon

Tuan Samahon

No abstract provided.

The Right To Learn: Intellectual Honesty And The First Amendment, Jeffrey M. Cohen

Jeffrey M. Cohen

Papers, Please: Does The Constitution Permit The States A Role In Immigration Enforcement?, John C. Eastman

John C. Eastman

Representative Service, Michael Scaperlanda

Michael A. Scaperlanda

No abstract provided.

Bleeeeep! The Regulation Of Indecency, Isolated Nudity, And Fleeting Expletives In Broadcast Media: An Uncertain Future For Pacifica V. Fcc, Danielle Weatherby

Danielle Weatherby

Repudiating The Narrowing Rule In Capital Sentencing, Scott W. Howe

Scott W. Howe

This Article proposes a modest reform of Eighth Amendment law governing capital sentencing to spur major reform in the understanding of the function of the doctrine. The article urges that the Supreme Court should renounce a largely empty mandate known as the “narrowing” rule and the rhetoric of equality that has accompanied it. By doing so, the Court could speak more truthfully about the important but more limited function that its capital-sentencing doctrine actually pursues, which is to ensure that no person receives the death penalty who does not deserve it. The Court could also speak more candidly than it …

The Supreme Court As Prometheus: Breathing Life Into The Corporate Supercitizen, Robert Sprague, Mary Ellen Wells

Robert Sprague

This article examines the legal status of the corporation in light of the U.S. Supreme Court’s decision in Citizens United v. Federal Election Commission that corporations have political free speech rights equivalent to natural persons. In Citizens United, Justice Kennedy wrote that corporations were disadvantaged persons because the government had intruded upon their freedom of speech. The Citizens United majority portrays a misleading image of corporations. It is true most corporations are owned by small groups of individuals, managed by their owners, and limited in size and revenues. But what the Citizens United majority conveniently ignores is one particular attribute …

Originalism In Practice, Lawrence Rosenthal

Lawrence Rosenthal

Originalism is in ascendance. Both in judicial opinions and in the legal academy, arguments for the interpretation of the Constitution based on its original meaning are increasingly prominent. The scholarly literature to date, however, has focused on theory. Supporters and opponents debate the theoretical merits of originalism, but rarely test their views on the merits of originalism by reference to the realities of constitutional adjudication. In science, a theory gains acceptance if it makes testable predictions that are later borne out. Whatever its theoretical merit, originalism deserves recognition as genuinely distinctive and useful approach to constitutional adjudication only if, in …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

Mark D. Rosen

Democracy does not spontaneously occur by citizens gathering to choose laws. Instead, representative democracy takes place within an extensive legal framework that determines such matters as who gets to vote, how campaigns are conducted, and what conditions must be met for representatives to make valid law. Many of the “rules of the road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against partisan gerrymandering—which is partly responsible for the fact that most congressional districts are no longer party competitive, but instead are either safely Republican or safely Democratic—and against onerous …

Enforcing Animal Welfare Statutes: In Many States, It’S Still The Wild West, Elizabeth Rumley, Rusty Rumley

Elizabeth Rumley

Authority to enforce animal welfare laws has been delegated to private citizens involved with humane organizations since the 1880s when the majority of those statutes were originally passed. Currently, over half of the states and the District of Columbia grant some form of law enforcement power to members or officers of humane societies. The authority ranges from the power to arrest to the ability to seize and destroy private property. In some cases it includes the right to carry a firearm-- even, in one state, as a convicted felon-- while engaging in law enforcement activities. After a brief history of …

Democracy And Dissent: Strauss, Arendt, And Voegelin In America, Stephen M. Feldman

Stephen M. Feldman

During the 1930s, American democratic government underwent a paradigmatic transformation from republican to pluralist democracy -- a movement away from relying on white Anglo-Saxon male values of the common good and toward a more open and inclusive form of democracy. Pluralist democracy achieved hegemony during the post-World War II era as the correct theory and practice of government, but it did not go unchallenged. European emigres such as Leo Strauss, Hannah Arendt, and Eric Voegelin, all of whom had escaped from Nazi Germany in the 1930s, raised the most persistent oppositional views. This Article is about those contemporaries who experienced …

Draconian Discrimination: One Man's Battle With U.S. Immigration Law For Fairness, Justice, And American Citizenship, Rachel C. Zoghlin

Rachel Claire Zoghlin

“I was born into my father’s arms,” David responded emphatically when I asked him about his relationship with his mother. David’s father, Ronald, has been his teacher, his guardian, his provider, and his support for his entire life. He taught David to be strong and gentle, proud and humble. David inherited Ronald’s kind eyes, his honest nature, his palpable presence, and his immovable strength. The first, last, and only time David met his mother was on January 23, 1965 – the day he was born. Ronald raised two children, David and his sister Roxanne, as a single parent.

When David …

Полномочия Органов Местного Самоуправления В Социальной Сфере, Leonid G. Berlyavskiy, Ekaterina Zorina

Leonid G. Berlyavskiy

In the article activity of local governments in social sphere is analyzed. Problems of legislative regulation of powers of local governments on rendering of social protection of large families, in particular, on granting of the ground areas to free of charge citizens having of three and more children are considered

Inside The Civil Rights Ring: Statutory Jabs And Constitutional Haymakers, Aaron J. Shuler

Aaron J Shuler

Civil rights litigators use statutory and constitutional attacks to combat inequality. Each approach has its advantages and drawbacks developed through interpretation by U.S. courts. The first major decision that shaped modern civil rights was the Civil Rights Cases that dodged a constitutional attack to withdraw most private acts of discrimination out of reach until the Civil Rights Act of 1964 was passed and validated in Heart of Atlanta v. U.S. In addition to the coupling of statutory attacks with private discrimination and constitutional challenges to state biases, statutory attacks have proven to be more adept at addressing disparate impacts as …

Massachusetts Firearms Prosecutions In The Wake Of Melendez-Diaz, Kevin P. Chapman

Kevin P. Chapman

The Supreme Court ruling in Melendez-Diaz fundamentally changed the way that firearms offenses are prosecuted in Massachusetts. This paper presents the history of firearms prosecutions and the current state of the law, and it raises several unanswered questions that could further change the nature of future firearms prosecutions.

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

Sheldon Nahmod

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 Natural And The Familiar In Politics And Law, Michael R. Dimino

Michael R Dimino