Open Access. Powered by Scholars. Published by Universities.®

Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

2017

Constitutional Law

Institution
Keyword
Publication
Publication Type
File Type

Articles 1261 - 1282 of 1282

Full-Text Articles in Law

A Contextual Approach To Harmless Error Review, Justin Murray Jan 2017

A Contextual Approach To Harmless Error Review, Justin Murray

Articles & Chapters

Harmless error review is profoundly important, but arguably broken, in the form that courts currently employ it in criminal cases. One significant reason for this brokenness lies in the dissonance between the reductionism of modern harmless error methodology and the diverse normative ambitions of criminal procedure. Nearly all harmless error rules used by courts today focus exclusively on whether the procedural error under review affected the result of a judicial proceeding. I refer to these rules as “result-based harmlesserror review.” The singular preoccupation of result-based harmless error review with the outputs of criminal processes stands in marked contrast with criminal …

Go to article

Vital Tissues Of The Spirit: Constitutional Emotions In The Antebellum United States, Doni Gewirtzman Jan 2017

Vital Tissues Of The Spirit: Constitutional Emotions In The Antebellum United States, Doni Gewirtzman

Articles & Chapters

This Chapter provides a framework for examining the ambivalent and reciprocal relationship between emotions and constitutional law through three interrelated lenses: text, instrument, and symbol. In the years before the Civil War, discourse about feelings impacted institutional struggles for interpretive supremacy over the constitutional text, affected the Constitution’s ability to function as a legal mechanism for emotion management, and shaped its status as a national symbol.

Go to article

The Constitutionality Of Claiming Jail, Paul E. Salamanca Jan 2017

The Constitutionality Of Claiming Jail, Paul E. Salamanca

Law Faculty Scholarly Articles

Most pari-mutuel horse races in the United States are claiming races.In such races, a track official stipulates a claim price, and any authorized person may buy any horse that runs in that race at that price. This device discourages owners from running overqualified horses, which tends to ensure competitive fields. Say, for example, an official set a price of $50,000 for a race. An owner who ran a $60,000 horse in that race would stand a fair chance of picking up a good part of the purse, but he or she would also run a high risk of losing the …

Go to article

Capital Punishment Of Unintentional Felony Murder, Guyora Binder, Brenner Fissell, Robert Weisberg Jan 2017

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 …

Go to article

Federalism All The Way Up: State Standing And "The New Process Federalism", Jessica Bulman-Pozen Jan 2017

Federalism All The Way Up: State Standing And "The New Process Federalism", Jessica Bulman-Pozen

Faculty Scholarship

This commentary considers what federalism all the way up means for Gerken’s proposed new process federalism. The state-federal integration she documents underscores why judicial policing of “conditions for federal-state bargaining” cannot be limited to state-federal relations in the traditional sense. It must extend to state challenges to the allocation and exercise of authority within the federal government. The new process federalism would therefore do well to address when states will have standing to bring such cases in federal court. After Part I describes contemporary federalism-all-the-way-up litigation, Part II suggests that Gerken’s “Federalism 3.0” complicates both traditional parens patriae and sovereignty …

Go to article

An Undetectable Constitutional Violation, Jill Wieber Lens Jan 2017

An Undetectable Constitutional Violation, Jill Wieber Lens

Kentucky Law Journal

In Philip Morris USA v. Williams, the Supreme Court mandated that lower courts implement procedural protections to ensure that the jury, when awarding punitive damages, properly considers evidence of the defendant's harming nonparties. The jury can consider that evidence when determining the level of the defendant's reprehensibility, but punishment for causing that nonparty harm would violate the defendant's constitutional rights. Ten years later, this Article is the first to examine lower courts' attempts to comply with Philip Morris. The Article first seeks to clarify how evidence of nonparty harm can demonstrate reprehensibility, a clarification necessary before courts can even begin …

Go to article

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay Dec 2016

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Richard Kay

 In recent years, the literature of constitutional originalism has adopted a new concept, “constitutional construction.” This Essay critically examines that concept. Contrary to some claims, the difference between “interpretation” and “construction” is not well established in common law adjudication. Furthermore, contemporary descriptions of constitutional construction tend to leave some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is indispensable because the constitutional text is incomplete, that failing to provide a decision-rule for many—indeed for most—constitutional disputes. The Constitution would indeed be incomplete if interpreted according to the “new” or “public …

Go to article

Judicial Handbook On Environmental Constitutionalism, James R. May, Erin Daly Dec 2016

Judicial Handbook On Environmental Constitutionalism, James R. May, Erin Daly

James R. May

No abstract provided.

Go to article

France Bans The Veil: What French Republicanism Has To Say About It, Stéphane Mechoulan Dec 2016

France Bans The Veil: What French Republicanism Has To Say About It, Stéphane Mechoulan

Stéphane Mechoulan

In 2011, France banned the wearing of face-veils in public.  This criminalization of face covering was criticized by the U.S. State Department, prominent NGOs, and legal academics of the Anglo-liberal tradition as an improper violation of freedom of religion and expression.  Against this backdrop, the 2014 decision of the European Court of Human Rights upholding the ban provides a timely opportunity to better understand the republican rationale behind it.  Through reconsidering the competing conceptions of the common good produced by Anglo-liberalism and French republicanism I explore how the ban aims to preserve an organizing principle of the Rousseauist social contract.  …

Go to article

Compulsion, Lawrence Rosenthal Dec 2016

Compulsion, Lawrence Rosenthal

Lawrence Rosenthal

The lack of a definition of compulsion plagues Fifth Amendment jurisprudence and scholarship, producing analytical confusion and worse. Surprisingly, neither Fifth Amendment jurisprudence nor scholarship offers a definition of what it means to “compel” a person to self-incriminate, even though there the concept of compulsion is critical to an understanding of the constitutional prohibition on compelled self-incrimination. The Supreme Court has occasionally referred to an overborne-will test for compulsion, but that test is of dubious provenance and difficult to apply. The Court frequently ignores the overborne-will test, and it cannot be reconciled with a good deal of Fifth Amendment doctrine.  …

Go to article

Subnational Environmental Constitutionalism And Reform In New York State, James R. May Dec 2016

Subnational Environmental Constitutionalism And Reform In New York State, James R. May

James R. May

The State of New York’s constitution was perhaps the first in the world to embody environmental constitutionalism, most directly in what is known as its “Forever Wild” mandate from 1894. In contrast to many subnational environmental provisions, courts in New York have regularly enforced Forever Wild. New York’s Constitution also contains a remarkable mandate that every twenty years voters decide whether to hold elections for delegates to convene a convention to amend the state’s charter.

This article has three parts. Part I provides a primer to the field of subnational environmental constitutionalism. Part II explores the opportunities and challenges in …

Go to article

The Lives And Times Of Temporary Legislation And Sunset Clauses, Ittai Bar-Siman-Tov Dec 2016

The Lives And Times Of Temporary Legislation And Sunset Clauses, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This review essay is a book review of Antonios Kouroutakis, The Constitutional Value of Sunset Clauses: An Historical and Normative Analysis (Routledge, 2017). The essay argues that we are in the golden age of the study of temporary legislation, and places Kouroutakis’s book within the burgeoning global scholarship on temporary legislation. The essay then discusses the book’s contributions to the study of the history of sunset clauses and to the normative and theoretical debates about temporary legislation.

Go to article

The Middle Class, Urban Schools, And Choice, Michael Lewyn Dec 2016

The Middle Class, Urban Schools, And Choice, Michael Lewyn

Michael E Lewyn

It is common knowledge that middle- and upper-class parents tend to disfavor urban public schools, and often move to suburbs in order to avoid having to send their children to those schools. Thus, the condition of urban public schools contributes to suburban sprawl- that is, the movement of people and jobs from city to suburb. 

 This article discusses a variety of possible solutions to the unpopularity of urban schools among middle-class parents.  Part I of the Article suggests that this problem is a cause as well as a result of middle-class flight: that is, urban schools have poor reputations because …

Go to article

Quacking Like A Duck? Functional Parenthood Doctrine And Same-Sex Parents, Katharine K. Baker Dec 2016

Quacking Like A Duck? Functional Parenthood Doctrine And Same-Sex Parents, Katharine K. Baker

Katharine K. Baker

Part I of this article introduces the tension between constitutionally protected parental autonomy rights and functional parent doctrine by examining the constitutional rights of parents. This examination demonstrates how the marital status of a parent has a substantial impact on the strength of that parent's constitutional rights. In cases in which there are two unmarried (never married or divorced) parents, neither parent has particularly robust constitutionally protected autonomy rights because both parents have competing constitutional rights that must be balanced against each other. Each parent has the right to invoke a court's jurisdiction in vindication of his or her own …

Go to article

Finding The Sovereign In Sovereign Immunity: Lessons From Bodin, Hobbes, And Rousseau, David Schraub Dec 2016

Finding The Sovereign In Sovereign Immunity: Lessons From Bodin, Hobbes, And Rousseau, David Schraub

David Schraub

The doctrine of “sovereign immunity” holds that the U.S. government cannot be sued without its consent. This is not found in the Constitution’s text; it is justified on philosophical grounds as inherent to being a sovereign state: a sovereign must be able to issue commands free from constraint. The sources of this understanding of sovereignty—Hobbes, Bodin, and others—are, in turn, condemned by opponents of sovereign immunity as absolutists whose doctrines are incompatible with limited, constitutional government. This debate, and thus the usual conception of sovereign immunity, rests on a fundamental mistake. Hobbes and his peers were careful to avoid the …

Go to article

Proportionality And Stare Decisis: Proposal For A New Structure, Vlad Perju Dec 2016

Proportionality And Stare Decisis: Proposal For A New Structure, Vlad Perju

Vlad Perju

This paper argues that a change in the formal structure of proportionality analysis can increase the chance of proportionality’s successful transplant into American constitutional law. The change takes the form of an additional and new last step to the existing multi-prong inquiry, which would require judges to assess the outcome of the legal analysis at the previous stages against the disruption that outcome would cause to settled constitutional doctrine. The greater the departure from constitutional precedent, the stronger must be the reasons that justify it. By analogy to Robert Alexy’s “weight” analysis at the balancing stage, I label this new …

Go to article

Executive Action And Nonaction, Tom Campbell Dec 2016

Executive Action And Nonaction, Tom Campbell

Tom Campbell

Action by the executive can be challenged by a party with standing, and there is usually no shortage of such parties. The executive’s failure to act, however, is much more difficult to submit to judicial scrutiny. I propose that standards for reviewing such nonaction are available under precedent of the Administrative Procedure Act, and under severability analysis. That is, a reviewing court can determine whether the executive’s failure to enforce part of a law leaves the rest of the law to operate meaningfully as Congress intended (akin to severability analysis), and APA precedent can guide courts to determine whether nonaction …

Go to article

Grasping Fatherhood In Abortion And Adoption.Pdf, Malinda L. Seymore Dec 2016

Grasping Fatherhood In Abortion And Adoption.Pdf, Malinda L. Seymore

Malinda L. Seymore

Biology makes a mother, but it does not make a father.  While a mother is a legal parent by reason of her biological relationship with her child, a father is not a legal parent unless he takes affirmative steps to grasp fatherhood.  Being married to the mother at the time of conception or at the time of birth is one of those affirmative steps. But if he is not married to the mother, he must do far more before he will be legally recognized as a father. Biology is often presented as a sufficient reason for this dichotomy – it …

Go to article

Obama's Conversion On Same-Sex Marriage, Robert L. Tsai Dec 2016

Obama's Conversion On Same-Sex Marriage, Robert L. Tsai

Robert L Tsai

This essay explores how presidents who wish to seize a leadership role over the development of rights must tend to the social foundations of those rights. Broad cultural changes alone do not guarantee success, nor do they dictate the substance of constitutional ideas. Rather, presidential aides must actively re-characterize the social conditions in which rights are made, disseminated, and enforced. An administration must articulate a strategically plausible theory of a particular right, ensure there is cultural and institutional support for that right, and work to minimize blowback. Executive branch officials must seek to transform and popularize legal concepts while working …

Go to article

The "Right" Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana Dec 2016

The "Right" Right To Environmental Protection: What We Can Discern From The American And Indian Constitutional Experience, Deepa Badrinarayana

Deepa Badrinarayana

 The best legal mechanism to protect the environment re-mains a complex and contentious issue. Many normative questions with practical implications remain. Should the legal response be in the foundational document of most legal systems, the Constitution? If so, should a Constitution create a specific right to environmental protection, or are statutory responses to address environmental problems adequate? If one considers environmental protection globally, both constitutional and legislative responses to environmental protection prevail. Yet, neither alone is adequate. Environmental legislation may not cater to individual rights, especially when legislated from a utilitarian platform. A constitutional right to environmental protection can …

Go to article

American Equal Protection And Global Convergence, Holning Lau, Hillary Li Dec 2016

American Equal Protection And Global Convergence, Holning Lau, Hillary Li

Holning Lau

Commentators have noted that equal protection doctrine is in a state of transformation. The nature of that transformation, however, is poorly understood. This Article offers a clearer view of the change underway. This Article is the first to reveal and synthesize three major trajectories along which the U.S. Supreme Court has begun to move. First, the Court has begun to blur the line that it previously drew between facial discrimination and disparate impact. Second, the Court has begun to collapse its previously established tiered standards for reviewing discrimination. These two trajectories combine to produce a third trajectory of change: by …

Go to article

Marriage Equality And Family Diversity: Comparative Perspectives From The United States And South Africa, Holning Lau Dec 2016

Marriage Equality And Family Diversity: Comparative Perspectives From The United States And South Africa, Holning Lau

Holning Lau

This Article explores the topic of family diversity through a comparative analysis of law in the United States and South Africa. Juxtaposing these countries sheds light on shortcomings of the United States’s jurisprudence on family diversity. The comparative analysis also helps illuminate the path ahead for reforming both countries’ laws to better respect family diversity.

The Article proceeds in two parts. Part I examines the United States’s and South Africa’s competing approaches to same-sex marriage. Both countries’ highest courts ruled that excluding same-sex couples from marriage is unconstitutional, but they took divergent paths to reach that conclusion. This Article contends …

Go to article

First Prev