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Articles 271 - 288 of 288

Full-Text Articles in Law

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum Jan 2010

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

Ian C Bartrum

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that ...


Nottebohm's Nightmare: Have We Exorcised The Ghosts Of Wwii Detention Programs Or Do They Still Haunt Guantanamo?, Cindy G. Buys Jan 2010

Nottebohm's Nightmare: Have We Exorcised The Ghosts Of Wwii Detention Programs Or Do They Still Haunt Guantanamo?, Cindy G. Buys

Cindy G. Buys

Frederich Nottebohm was the subject of a famous 1956 International Court of Justice (ICJ) decision that still has resonance today. The story of how Mr. Nottebohm, a wealthy German-born businessman living in Guatemala, came to be the subject of a case before the world court exposes a little known program run by the United States during World War II in which the United States pressured Latin American countries like Guatemala to identify persons of German nationality or ancestry and turn them over to the United States for internment for the duration of the war. Many of these persons were assumed ...


Constitutional Concepts For The Rule Of Law: A Vision For The Post-Monarchy Judiciary In Nepal, David Pimentel Jan 2010

Constitutional Concepts For The Rule Of Law: A Vision For The Post-Monarchy Judiciary In Nepal, David Pimentel

David Pimentel

A new government has taken power in Nepal. Intent on replacing the monarchical Hindu state with a secular democracy, they have promised a new Constitution. Although they are operating under an Interim Constitution at the moment, it remains to be seen what the post-monarchy judiciary will look like. Those involved in the drafting should pay careful attention to how specific provisions for court governance will impact both institutional and decisional judicial independence. The Interim Constitution calls for a judicial council, but not a sufficiently independent one. The Interim Constitution also allows broad exercise of emergency powers, depriving the courts of ...


The Right To Arms In The Living Constitution, David B. Kopel Jan 2010

The Right To Arms In The Living Constitution, David B. Kopel

David B Kopel

This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.

"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect ...


State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer Jan 2010

State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer

David B Kopel

Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying "reasonableness," many courts have used reasonableness as a ...


The Keystone Of The Second Amendment: Quakers, The Pennsylvania Constitution, And The Questionable Scholarship Of Nathan Kozuskanich, David B. Kopel, Clayton Cramer Jan 2010

The Keystone Of The Second Amendment: Quakers, The Pennsylvania Constitution, And The Questionable Scholarship Of Nathan Kozuskanich, David B. Kopel, Clayton Cramer

David B Kopel

Historian Nathan Kozuskanich claims that the Second Amendment-like the arms provision of the 1776 Pennsylvania Constitution-is only a guarantee of a right of individuals to participate in the militia, in defense of the polity. Kozuskanich’s claim about the Second Amendment is based on two articles he wrote about the original public meaning of the right to arms in Pennsylvania, including the 1776 and 1790 Pennsylvania constitutional arms guarantees.

Part I of this Article provides a straightforward legal history of the right to arms provisions in the 1776 Pennsylvania Constitution and of the 1790 Pennsylvania Constitution. We examine Kozuskanich’s ...


A New Global Constitutional Order?, David Schneiderman Jan 2010

A New Global Constitutional Order?, David Schneiderman

David Schneiderman

Accompanying the rise of new transnational legal rules and institutions intended to promote global economic integration are questions about the linkages between transnational legality and constitutional law. In what ways does transnational economic law mimic features of national constitutional law? Does transnational law complement in some ways or supersede in other ways what we typically describe as constitutional law? To these questions we can now add the following: are transnational rules and institutions a proper subject of study for comparative constitutionalists? This chapter makes a case for the incorporation of forms of transnational legality into comparative constitutional studies. Taking as ...


Promoting Equality, Black Economic Empowerment, And The Future Of Investment Rules, David Schneiderman Jan 2010

Promoting Equality, Black Economic Empowerment, And The Future Of Investment Rules, David Schneiderman

David Schneiderman

It generally is assumed that rules to protect and promote foreign investment are sufficiently flexible to address the specific needs of developing and less developed countries. What happens, however, when the typical model of investment treaty rubs against national constitutional commitments, such as those mandating the promotion of equality in post-apartheid South Africa? This paper explores such tensions in the context of free trade and investment negotiations between the United States and the South African Customs Union. South Africa’s plan to generate a new black middle class via a program of Black Economic Empowerment, it turns out, was a ...


Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson Jan 2010

Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson

David B Kopel

The Constitution’s original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island’s ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin’s article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution’s Commerce Clause a scope that virtually no one in the Founding Era believed it had.


Can Criminal Law Be Controlled?, Darryl K. Brown Jan 2010

Can Criminal Law Be Controlled?, Darryl K. Brown

Darryl K. Brown

This review of Douglas Husak's 2008 book, Overcriminalization: The Limits of the Criminal Law, summarizes and largely endorses Husak's normative argument about the indefensible expansiveness of much contemporary criminal liability. It then offers a skeptical (or pessimistic) argument about the possibilities for a normative theory such as Husak's to have much effect on criminal justice policy in light of the political barriers to reform.


A Fractured Establishment's Responses To Social Movement Agitation: The U.S. Supreme Court And The Negotiation Of An Outsider Point Of Entry In Walker V. City Of Birmingham, Carlo A. Pedrioli Jan 2010

A Fractured Establishment's Responses To Social Movement Agitation: The U.S. Supreme Court And The Negotiation Of An Outsider Point Of Entry In Walker V. City Of Birmingham, Carlo A. Pedrioli

Carlo A. Pedrioli

In classical social movement theory, scholars have identified the advocates of change as elements of agitation and the establishment as the entity that responds in an attempt to control the agitators. This classical approach has assumed that the establishment is a generally monolithic entity that responds in a unified manner to the efforts of the advocates of change.

While this approach may accurately characterize some rhetorical situations, it does not necessarily have to characterize all such situations. For example, one could describe the judiciary as a part of the establishment because judges are well-connected and powerful individuals who, in many ...


Classification Of Participants In Suicide Attacks And The Implications Of This Classification For The Severity Of The Sentence: The Israeli Experience In The Military Courts In Judea And Samaria, Chagai D. Vinizky, Amit Preiss Jan 2010

Classification Of Participants In Suicide Attacks And The Implications Of This Classification For The Severity Of The Sentence: The Israeli Experience In The Military Courts In Judea And Samaria, Chagai D. Vinizky, Amit Preiss

Chagai D Vinizky

*** A revised version of this article is forthcoming in 30 Pace Law Review (Winter2010) *** The twenty-first century witnessed a considerable rise in the number of suicide attacks. The largest suicide attacks were carried out by Al-Qaeda in the United States on 11.9.2001 when that organization crashed four passenger planes (two into the Twin Towers and one into the Pentagon building) killing 2,973 civilians. Between the 11th September and the present time, suicide attacks have taken place throughout the world, including in Turkey, Great Britain, Egypt, India, Jordan, Spain and Iraq leading to thousands of deaths. A large ...


Cold War Paradox: The United States And The South Korean Constitutions Of 1948 And 1988, Mattei Ion Radu Jan 2010

Cold War Paradox: The United States And The South Korean Constitutions Of 1948 And 1988, Mattei Ion Radu

Mattei Ion Radu

No abstract provided.


The Invisible Woman: Availability And Culpability In Reproductive Health Jurisprudence, Beth A. Burkstrand-Reid Jan 2010

The Invisible Woman: Availability And Culpability In Reproductive Health Jurisprudence, Beth A. Burkstrand-Reid

Beth A. Burkstrand-Reid

Women’s health is widely assumed to be a significant consideration in reproductive rights cases. Court decisions relating to contraception, abortion, and childbirth demonstrate that while this assumption may have historical validity, consideration of women’s health is often truncated in recent reproductive rights jurisprudence. This occurs, in part, through the application of one or both of two recurring tools. First, judges regularly—and often inaccurately—cite the theoretical availability of alternative reproductive health services as proof that women’s health will not suffer even if a law curtailing reproductive rights is upheld. I label this the “availability tool.” Second ...


Qualitative And Quantitative Proportionality - A Specific Critique Of Retributivism, John D. Castiglione Jan 2010

Qualitative And Quantitative Proportionality - A Specific Critique Of Retributivism, John D. Castiglione

John D. Castiglione

This Article presents a normative model of proportionality review under the Cruel and Unusual Punishments Clause. I divide proportionality into two organizing concepts: “qualitative proportionality,” which concerns the methods used to punish the individual and the conditions under which he serves his sentence, and “quantitative proportionality,” which concerns the temporal length of the sentence imposed. I argue that the Cruel and Unusual Punishments Clause is best understood to mandate review of the qualitative proportionality of the sentence, but not the quantitative proportionality of the punishment. The most significant feature of this model is an appreciation for the role of human ...


Congress, Corporate Boards, And Oversight: A Private Law / Public Law Comparison, Paul S. Miller Jan 2010

Congress, Corporate Boards, And Oversight: A Private Law / Public Law Comparison, Paul S. Miller

Paul S. Miller

This article argues that a system of congressional oversight based on trust can produce more effective government than one based on highly detailed regulations. The article first presents historic examples of congressional oversight and the ways in which trust contributed both to the effectiveness of the oversight and to the success of the policies at issue. The article goes on to examine the rise of trust theory in corporate governance as a means of making oversight by boards of directors more effective and thereby making corporations more profitable. The final part of the article explores how use of trust theory ...


A Fourth Amendment For The Poor Alone: Subconstitutional Status And The Myth Of The Inviolate Home, Jordan C. Budd Jan 2010

A Fourth Amendment For The Poor Alone: Subconstitutional Status And The Myth Of The Inviolate Home, Jordan C. Budd

Jordan C. Budd

A FOURTH AMENDMENT FOR THE POOR ALONE:

SUBCONSTITUTIONAL STATUS AND THE MYTH OF THE INVIOLATE HOME

Jordan C. Budd

ABSTRACT

For much of our nation’s history, the poor have faced pervasive discrimination in the exercise of fundamental rights. Nowhere has the impairment been more severe than in the area of privacy. This Article considers the enduring legacy of this tradition with respect to the Fourth Amendment right to domestic privacy. Far from a matter of receding historical interest, the diminution of the poor’s right to privacy has accelerated in recent years and now represents a powerful theme within ...


Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks Jan 2010

Contingent Equal Protection: Reaching For Equality After Ricci And Pics, Jennifer S. Hendricks

Jennifer S. Hendricks

The Supreme Court’s decision in Parents Involved in Community Schools v. Seattle School District #1 has been extensively analyzed as the latest step in the Court’s long struggle with the desegregation of public schools. This Article examines the decision’s implications for the full range of equal protection doctrine dealing with benign or remedial race and sex classifications. Parents Involved revealed a sharp division on the Court over whether government may consciously try to promote substantive equality. In the past, such efforts have been subject to an equal protection analysis that allows race-conscious or sex-conscious state action, contingent ...