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Constitutional Law

2010

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Articles 1 - 30 of 461

Full-Text Articles in Law

Eminent Need: Proposing A Market Participation Exception For Municipal Parker Immunity, Scott B. Weese Dec 2010

Eminent Need: Proposing A Market Participation Exception For Municipal Parker Immunity, Scott B. Weese

Scott B Weese

A township is using its eminent domain powers to become a monopsony in the real estate market for the designated area. That township’s monopsony power is then being exploited to create a price-fixing scheme that would violate antitrust laws, either as a per se violation under § 1 of the Sherman Antitrust Act, or as a monopolizing or attempted monopolizing offense under § 2. Under the Sherman Act, effected residents could force the township to appraise each property individually and pay the full market value; if the township refused, they would be subject to the treble damage penalty, erasing any possible ...


Civil Rights Developments, Martin A. Schwartz Dec 2010

Civil Rights Developments, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.


Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen R. Kaufman, Martin A. Schwartz Dec 2010

Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen R. Kaufman, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.


Civil Rights Developments, Martin A. Schwartz Dec 2010

Civil Rights Developments, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.


The Senate Filibuster: The Politics Of Destruction, Emmet J. Bondurant Dec 2010

The Senate Filibuster: The Politics Of Destruction, Emmet J. Bondurant

Emmet J Bondurant

The notion that the Framers of the Constitution intended to allow a minority in the U.S. Senate to exercise a veto power over legislation and presidential appointments is not only profoundly undemocratic, it is also a myth. The overwhelming trend of law review articles have assumed that because the Constitution grants to each house the power to make its own rules, the Senate filibuster rule is immune from constitutional attack. This Article takes an opposite position based on the often overlooked history of the filibuster, the text of the Constitution and the relevant court precedents which demonstrate that the ...


Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen R. Kaufman, Martin A. Schwartz Dec 2010

Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen R. Kaufman, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.


Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen R. Kaufman, Martin A. Schwartz Dec 2010

Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen R. Kaufman, Martin A. Schwartz

Eileen Kaufman

No abstract provided.


Why Wait Until The Crime Happens? Providing For The Involuntary Commitment Of Dangerous Individuals Without Requiring A Showing Of Mental Illness, Adam Lamparello Dec 2010

Why Wait Until The Crime Happens? Providing For The Involuntary Commitment Of Dangerous Individuals Without Requiring A Showing Of Mental Illness, Adam Lamparello

Adam Lamparello

No abstract provided.


In Efforts To Regulate Immigration, States Test Limits Of Their Authority, Alan E. Garfield Dec 2010

In Efforts To Regulate Immigration, States Test Limits Of Their Authority, Alan E. Garfield

Alan E Garfield

No abstract provided.


Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progressive Originalism, Dale E. Ho Dec 2010

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 ...


Junior Bar Law Review 1 (2010), 21-40 Judicial Activism Revisited: Reflecting On The Role Of Judges In Enforcing Economic, Social And Cultural Rights, Gehan D. Gunatilleke Mr. Dec 2010

Junior Bar Law Review 1 (2010), 21-40 Judicial Activism Revisited: Reflecting On The Role Of Judges In Enforcing Economic, Social And Cultural Rights, Gehan D. Gunatilleke Mr.

Gehan D Gunatilleke Mr.

Following the conclusion of military operations in Sri Lanka in 2009, the issue of economic development and distributive justice appears to have remerged on the country’s agenda. Within this post-conflict context, the judiciary in Sri Lanka is confronted with a major challenge in terms of defining its proper role in the promotion of Economic Social and Cultural (“ESC”) rights. The precise extent to which judges should be ‘activist’ in promoting these rights should be contrasted with the level of activism required of judges in the sphere of civil and political rights. Advocating ESC rights in Sri Lanka simply cannot ...


Twombly In Context: Why Federal Rule Of Civil Procedure 4(B) Is Unconstitutional, E. Donald Elliott Dec 2010

Twombly In Context: Why Federal Rule Of Civil Procedure 4(B) Is Unconstitutional, E. Donald Elliott

Faculty Scholarship Series

Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer civil charges in court without any preliminary state review or screening for reasonableness. This is argued to be unconstitutional as a unreasonable seizure of the person, a deprivation of private property without due process, and a standardless delegation of state power to a private party with a financial interest.

The history of the writ of summons is reviewed. From the Founding until 1938, federal courts reviewed the grounds proposed for suit prior to service of a ...


Lawmakers As Lawbreakers, Ittai Bar-Siman-Tov Nov 2010

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 ...


George Washington And The Executive Power, John C. Yoo Nov 2010

George Washington And The Executive Power, John C. Yoo

John C Yoo

This paper examines current debates over the scope of presidential power through the lens of the Washington administration. We tend to treat Washington’s decisions with an air of inevitability, but the constitutional text left more questions about the executive unanswered than answered. Washington filled these gaps with a number of foundational decisions - several on a par with those made during the writing and ratification of the Constitution itself. He was a republican before he was a Federalist, but ultimately Washington favored an energetic, independent executive, even at the cost of political harmony. He centralized decision-making in his office, so ...


When Juveniles Face Questioning, Tamar R. Birckhead Nov 2010

When Juveniles Face Questioning, Tamar R. Birckhead

Tamar R Birckhead

This op-ed argues that the age of a suspect should be considered when evaluating whether the questioning was custodial, thereby triggering the right to Miranda warnings.


Models Of Religious Freedom, Marcel Stuessi Swiss Human Rights Lawyer Nov 2010

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 ...


Justice Kennedy's Most Important Constitutional Opinions, Randall Kelso, Charles Kelso Nov 2010

Justice Kennedy's Most Important Constitutional Opinions, Randall Kelso, Charles Kelso

Randall Kelso

Abstract for Kelso & Kelso, Justice Kennedy’s Most Important Constitutional Opinions In this article, we have undertaken to evaluate Justice Kennedy’s majority, concurring, and dissenting opinions in terms of their importance for society and the law. We have found no single criteria by which to assess importance. Instead, we have used a balancing system whose elements are: (1) how many people are likely to be affected over time; (2) how important are the competing interests to individuals, society, or government; (3) how much impact is the opinion likely to have on the development of constitutional law; and (4) what effect the opinion is likely to have on the role of the Court in American legal history. We discuss Justice Kennedy’s “Top Ten” majority opinions, his “Top Ten” concurring opinions, and his “Top 4” dissenting opinions. In addition, an Appendix is attached to the Article listing 38 other majority opinions, 25 concurrences, and 13 dissents written by Justice Kennedy which are also noteworthy Kennedy opinions.


Constitutional Law, James E. Leahy Nov 2010

Constitutional Law, James E. Leahy

Cal Law Trends and Developments

This was a year in which the reviewing courts in California were confronted with contemporary problems of constitutional law.


Constitutional Law, James E. Leahy Nov 2010

Constitutional Law, James E. Leahy

Cal Law Trends and Developments

This was an eventful year in the field of constitutional law. The court upheld the right of individuals to distribute antiwar literature within a railway station, struck down an injunction prohibiting county employees from peaceful picketing, upheld an ordinance punishing conduct which urges a riot or which urges others to commit acts of force or violence, and held the California loyalty oath unconstitutional.


Don't Be So Quick To Ban Violent Videogames, Alan E. Garfield Nov 2010

Don't Be So Quick To Ban Violent Videogames, Alan E. Garfield

Alan E Garfield

No abstract provided.


Whether Foreigner Or Alien: A New Look At The Original Language Of The Alien Tort Statute, M. Anderson Berry Nov 2010

Whether Foreigner Or Alien: A New Look At The Original Language Of The Alien Tort Statute, M. Anderson Berry

M. Anderson Berry

Until now, the word that puts the ‘A’ in ATS has been completely overlooked. No court or commentator has delved in to the 1789 meaning of “alien,” or to the drafters' understanding of and possible intentions behind that word.

In the Supreme Court’s only opinion regarding the Alien Tort Statute, Sosa v. Alvarez-Machain, the Court unanimously agreed that although the first House of Representatives modified the Senate’s draft of what eventually became the Judiciary Act of 1789, it made hardly any changes to the provisions on aliens, including what became the ATS. The Court did not point out ...


The Patient Protection And Affordable Care Act And Constitutional Challenges, Mel Cousins Oct 2010

The Patient Protection And Affordable Care Act And Constitutional Challenges, Mel Cousins

Mel Cousins

Having undergone an extensive process of political discussion and debate, the Health Care Reform Act (properly the Patient Protection and Affordable Care Act) is now under intensive legal challenge with at least 20 different cases from both states and organizations and individuals currently under way. Although this litigation is at an early stage, there has already been considerable academic (and other) interest with a number of websites tracking the development of the litigation and providing links to the considerable commentary which has already been developed (albeit much of it inevitably speculative in nature). There have now been five substantive rulings ...


The Defense Of Marriage Act (Doma), Equal Protection And State Authority – Gill V Office Of Personnel Management And Commonwealth Of Massachusetts V United States Dept Of Health And Human Services, Mel Cousins Oct 2010

The Defense Of Marriage Act (Doma), Equal Protection And State Authority – Gill V Office Of Personnel Management And Commonwealth Of Massachusetts V United States Dept Of Health And Human Services, Mel Cousins

Mel Cousins

The issue of the recognition of same-sex marriages and the constitutionality of a refusal to recognize such marriages has received considerable attention in the US state courts in the last decade. A number of state courts have ruled that, state constitutions require the recognition of same-sex marriages. However, relatively few cases had reached the federal courts and in almost all these cases the restrictions had been upheld. However, two recent challenges to a ban on same-sex marriages in California (Proposition 8) and restrictions of the rights of same-sex couples under federal law (DOMA) have now been successful before federal district ...


Can The Federal Reserve Adopt An Inflation Targeting Regime Under The Current Statutory Arrangements?, Hong Kyoon Cho Oct 2010

Can The Federal Reserve Adopt An Inflation Targeting Regime Under The Current Statutory Arrangements?, Hong Kyoon Cho

Hong Kyoon Cho

This paper discussed legal perspectives in institutional framework of central banking, keyed to monetary policy framework. The statutory objectives of monetary policy provide an environment under which the central bank can design its monetary policy framework, in that the choice of the monetary policy framework could lie within the scope of the spirits embodied in the statutory objectives of monetary policy. Monetary policy framework could illuminate legal aspects of debate, as specifically seen in the Federal Reserve’s case that has adopted not an explicit but an implicit monetary policy framework, namely the Just-Do-It approach. Under the current legal mandate ...


Arizona V. Gant And Its Impact On Search And Seizure Law And Vehicle Searches, Michael Gizzi, R Curtis Oct 2010

Arizona V. Gant And Its Impact On Search And Seizure Law And Vehicle Searches, Michael Gizzi, R Curtis

Michael C Gizzi

The decision in Arizona v. Gant, handed down in April of 2009, was a surprise for law enforcement and Supreme Court observers alike. For law enforcement, it took away their unfettered discretion to search a car anytime they engaged in a routine traffic stop, which was a commonly used tool for drug interdiction and combating gangs. For Court observers, it not only was a rare decision to suppress evidence in a Fourth Amendment case but it also presented an unusual line up of justices. This study considers the implications of Gant both for law enforcement and for observers of the ...


Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi Oct 2010

Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi

Hariqbal Basi

Abstract- For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order ...


Snyder V. Phelps & The Supreme Court's Speech-Tort Jurisprudence: A Prediction, Deana Ann Pollard Sacks Oct 2010

Snyder V. Phelps & The Supreme Court's Speech-Tort Jurisprudence: A Prediction, Deana Ann Pollard Sacks

Deana A Pollard

In Snyder v. Phelps, members of the Westboro Baptist Church targeted a young marine’s untimely death to exemplify their hate-filled message to the world that “God Hates Fags” and retaliates against America for tolerating homosexuality by killing American soldiers. A jury awarded the marine’s father $10.9 million for invasion of privacy and emotional distress after the church members disseminated extremely hateful and personalized attacks against the fallen marine’s family. The Supreme Court is reviewing the case to determine whether civil liability based on invasive, hate-filled, injurious speech violates the First Amendment. In New York Times v ...


Sexual Reorientation, Elizabeth M. Glazer Oct 2010

Sexual Reorientation, Elizabeth M. Glazer

Elizabeth M Glazer

Bisexuals have been invisible for at least ten years. Ten years ago, Kenji Yoshino wrote about the “epistemic contract of bisexual erasure,” the tacit agreement between both homosexuals and heterosexuals to erase bisexuals. Though legal scholarship has addressed bisexuality only in rare moments, Yoshino’s epistemic contract of erasure answered Ruth Colker’s earlier call for a “bi jurisprudence” and explained why the “vast and vastly unacknowledged wall between heterosexual and homosexual identities” that Naomi Mezey identified has been so “vigilantly maintained.” While the tenth anniversary of the publication of Yoshino’s article is reason enough to revisit the topic ...


The Bible And The Constitution, Brad Jacob Oct 2010

The Bible And The Constitution, Brad Jacob

Robert Weston Ash

ABSTRACT

The Bible and the Constitution Prof. Bradley P. Jacob

Is the United States Constitution consistent with the Holy Bible? For many people today, and especially for most lawyers, legal scholars and judges, the question is both irrelevant and silly. Their answer would be a simple, “Who cares?”

Yet there are some – Christian judges, lawyers and legal scholars – for whom the question matters a great deal. It matters to anyone who follows the tradition of Thomas Aquinas, William Blackstone, and Martin Luther King, Jr., in holding that a human law that violates God’s eternal principles of justice is no ...


The Kinston Ruling: Black Preferred Candidates And The Meaning Of The 15th Amendment, Brandon F. Douglass Oct 2010

The Kinston Ruling: Black Preferred Candidates And The Meaning Of The 15th Amendment, Brandon F. Douglass

Brandon F Douglass

Since the 1960s, section five of the Voting Rights Act requires covered jurisdictions to seek preclearance before making certain changes to their political structure. Recently, the United States Department of Justice ruled that Kinston, North Carolina’s attempt at removing partisan labels from its ballots for municipal posts violated section five of the Voting Rights Act, based on the premise that absent a partisan cue, Kinston’s African-American voters will not be able to elect their candidate of choice. This paper presents a summary of the preclearance process and an analysis of the Department’s ruling regarding Kinston’s attempt ...