Law Commons^™

Mechanisms For Resolving Divisive Issues In Constitutional Negotiations, Sujit Choudhry, Nicholas Haysom

Sujit Choudhry

This issue paper is part of the ‘Constitution-making in Focus’ series and is focusing on how to deal with divisive issues in a constitution-making process. There can be no fool-proof algorithms for resolving divisive issues to achieve this end, but there are mechanisms with which every negotiation process should be equipped.

Expression And Location: Are There Constitutional Dead Zones?, Brian Slattery

Brian Slattery

No abstract provided.

The End Of Originalism, Jeffrey M. Shaman

Jeffrey M. Shaman

This essay maintains that originalism—the idea that the Constitution should be interpreted according to its original meaning--is nearing its demise. Ironically, the beginning of the end of originalism may have been prompted by the Supreme Court’s decision in District of Columbia v. Heller, marking the first time that a majority of the Court signed onto an opinion emphatically taking an originalist slant. Heller may represent the apogee of originalism and, because it exposes the fundamental flaws of originalism, may also mark the beginning of its decline. Originalism is a radical departure from the Supreme Court’s well-established jurisprudence of a living …

“Intelligence” Searches And Purpose: A Significant Mismatch Between Constitutional Criminal Procedure And The Law Of Intelligence-Gathering, Robert C. Power

Robert C. Power

No abstract provided.

Strangers In A Strange Land: The Importance Of Better Compliance With The Consular Notification Rights, Cindy G. Buys, Scott D. Pollock, Ioana Navarrete

Cindy G. Buys

The right of a foreign national to contact his or her consulate upon arrest or detention in another country has been described as a fundamental and indispensible human right. Yet United States authorities have repeatedly failed to provide foreign nationals and their consulates with notice as required by law. This failure is evidenced by the explosion in litigation of consular notification rights in recent years.

This article explores some of the most interesting legal questions that are being raised in the area of consular notification rights. Drawing on the experiences and perspectives of three attorneys, member of the consular staff …

Forfeiture Of The Right To Counsel: A Doctrine Unhinged From The Constitution, Stephen A. Gerst

Stephen A Gerst

The Sixth Amendment right to an attorney is so fundamental that the United States Supreme Court has carefully developed requirements to ensure that an indigent defendant does not go to trial in any criminal case where there is a possibility of a deprivation of freedom without an attorney unless there is an affirmative waiver of the right to counsel on the record. However, the Supreme Court has not addressed what the record must show for finding that a defendant has lost his right to counsel as a result of the defendant's own misconduct toward the court or the defendant's attorney. …

Who Watches The Watchmen? 'Vigilant Doorkeeping,' The Alien Tort Statute, & Possible Reform, Keith A. Petty

Keith A. Petty

The Alien Tort Statute (ATS) allows alien plaintiffs to file civil actions in U.S. district courts for torts violating the law of nations or U.S. treaties. After the 2nd Circuit’s Filartiga decision in 1980, the debate began as to whether the ATS was a useful tool against human rights violators or an intrusion into U.S. foreign relations. In 2004, the Supreme Court in Sosa v. Alvarez-Machain resolved some of the questions left open by Filartiga.

Sosa concluded that ATS claims must be limited to law of nations violations as well defined as those recognized in 1789. The Court tasked the …