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

Law Commons

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

Constitutional law

Discipline
Institution
Publication Year
Publication
Publication Type
File Type

Articles 1 - 30 of 2461

Full-Text Articles in Law

Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati Jan 2018

Puerto Rico And The Right Of Accession, Joseph Blocher, Mitu Gulati

Faculty Scholarship

On June 11, 2017, Puerto Rico held a referendum on its legal status. Although turnout was low, 97% of ballots favored statehood, rather than independence or the status quo. The federal government, however, has financial and political reasons to resist this preference: Puerto Rico would bring with it a massive, unpayable debt, and the potential to swing the current balance of power in Congress. That then raises the two questions of whether Congress could decide expel Puerto Rico (give it “independence”) or is legally required to give it statehood (“accession”).

The answers are not obvious. International law, we argue, suggests ...


Alexis De Tocqueville And American Constitutional Law: On Democracy, The Majority Will, Individual Rights, Federalism, Religion, Civic Associations And Originalist Constitutional Theory, Philip C. Kissam Nov 2017

Alexis De Tocqueville And American Constitutional Law: On Democracy, The Majority Will, Individual Rights, Federalism, Religion, Civic Associations And Originalist Constitutional Theory, Philip C. Kissam

Maine Law Review

Count Alexis de Tocqueville's Democracy in America has been said to be "at once the best book ever written on democracy and the best book ever written on America. " This praise should perhaps be tempered by consideration of Tocqueville' s purposes and the historical circumstances within which he worked and understood both democracy and America. Yet Tocqueville's insights into American democracy as of the 1830s undoubtedly constitute a rich source of constitutional thought-either as support for particular constitutional principles or as constitutional ideas that should be contested. In a recent notable instance, John McGinnis has argued that Tocqueville ...


Hate Speech Debate Has Roots In Us History, Rodney A. Smolla Sep 2017

Hate Speech Debate Has Roots In Us History, Rodney A. Smolla

Rod Smolla

No abstract provided.


Hate Speech And The First Amendment, Alan E. Garfield Sep 2017

Hate Speech And The First Amendment, Alan E. Garfield

Alan E Garfield

No abstract provided.


Justice Scalia As Neither Friend Nor Foe To Criminal Defendants, Tung Yin Jul 2017

Justice Scalia As Neither Friend Nor Foe To Criminal Defendants, Tung Yin

Akron Law Review

At first glance, Justice Scalia may appear to have been something of a “friend” to criminal defendants, as he authored a number of opinions ruling against law enforcement. However, his opinions reflect his fidelity to his constitutional vision of originalism rather than an intent to favor criminal defendants. Nevertheless, these cases are often offered as legitimate examples of how he did not have a purely results-oriented approach to deciding criminal procedure issues. Yet, a closer examination of Justice Scalia’s “defendant-favorable” opinions suggests that the results often have an air of unreality to them. In practice, there is no way ...


The Blessing Of Separating Church And State, Alan E. Garfield Jul 2017

The Blessing Of Separating Church And State, Alan E. Garfield

Alan E Garfield

No abstract provided.


Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary L. Clark Jun 2017

Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary L. Clark

Mary L. Clark

No abstract provided.


Civil Rights Remedies In Higher Education: Jurisprudential Limitations And Lost Moments In Time, Lia Epperson Jun 2017

Civil Rights Remedies In Higher Education: Jurisprudential Limitations And Lost Moments In Time, Lia Epperson

Lia Epperson

No abstract provided.


For Legal Principles, Mitchell N. Berman Jun 2017

For Legal Principles, Mitchell N. Berman

Faculty Scholarship

Most legal thinkers believe that legal rules and legal principles are meaningfully distinguished. Many jurists may have no very precise distinction in mind, and those who do might not all agree. But it is widely believed that legal norms come in different logical types, and that one difference is reasonably well captured by a nomenclature that distinguishes “rules” from “principles.” Larry Alexander is the foremost challenger to this bit of legal-theoretic orthodoxy. In several articles, but especially in “Against Legal Principles,” an influential article co-authored with Ken Kress two decades ago, Alexander has argued that legal principles cannot exist.

In ...


Finding Justice, Laurie L. Levenson Jun 2017

Finding Justice, Laurie L. Levenson

ConLawNOW

In this essay memoralizing remarks presented on Constitution Day, Professor Laurie Levenson reflects on her transition from federal prosecutor to defense attorney as founder of Loyola Law School’s Project for the Innocent. She recounts the stories of two clients freed by the work of the Project. She then discusses how this work revealed blind faith in the Constitution is not enough to ensure that only the guilty are convicted. We need to do better. Levenson argues that we need to realize that constitutional rights only protect individuals if both prosecutors and defense lawyers want those rights to work. A ...


Procedural Due Process Claims, Erwin Chemerinsky Jun 2017

Procedural Due Process Claims, Erwin Chemerinsky

Erwin Chemerinsky

No abstract provided.


Excessive Lethal Force, Melissa Hamilton Jun 2017

Excessive Lethal Force, Melissa Hamilton

Northwestern University Law Review

This Essay considers the use by Dallas police officers of a robot armed with plastic explosives to kill a suspected gunman on a shooting rampage in 2016. In the wake of Dallas, many legal experts in the news maintained that the police action was constitutional. The commentators' consensus was that as long as the police had the right to use lethal force, then the means of that force is irrelevant. This Essay argues the contrary. Under the current state of the constitutional law on the police use of force on a suspected felon, excessive lethal force is a valid consideration ...


Value Of Valor: Soldiers’ Tenets Should Guide All Americans, Alan E. Garfield May 2017

Value Of Valor: Soldiers’ Tenets Should Guide All Americans, Alan E. Garfield

Alan E Garfield

No abstract provided.


Introduction To Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May Apr 2017

Introduction To Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May

Erin Daly

No abstract provided.


New Frontiers In Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May, Caiphas Soyapi Apr 2017

New Frontiers In Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May, Caiphas Soyapi

Erin Daly

No abstract provided.


New Frontiers In Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May, Caiphas Soyapi Apr 2017

New Frontiers In Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May, Caiphas Soyapi

James R. May

No abstract provided.


Sustainability And Global Environmental Constitutionalism, James R. May Apr 2017

Sustainability And Global Environmental Constitutionalism, James R. May

James R. May

No abstract provided.


Introduction To Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May Apr 2017

Introduction To Environmental Constitutionalism, Erin Daly, Louis Kotze, James R. May

James R. May

No abstract provided.


Failure To Act And The Separation Of Powers-The Vice Presidency And The Need To Surmount Divided Power In Pursuit Of A Workable Government, Douglas W. Kmiec Apr 2017

Failure To Act And The Separation Of Powers-The Vice Presidency And The Need To Surmount Divided Power In Pursuit Of A Workable Government, Douglas W. Kmiec

Pepperdine Law Review

Is the Vice President an executive officer, a legislative officer, or both? This query has existed since the time of the founding. The question poses more difficulty than one might suppose, and it remains unsettled. It can be convenient to ignore questions that one cannot answer, and thus, the Vice President has been the object of political humor and treated as an appendage without present function. Yet, because we attribute great genius to those who drafted the Constitution, what is the effect of leaving this high-ranking officer without adequate definition or purpose? For the first century and a half of ...


The Administrative State: Problems Associated With Congressional Intent, Statutory Interpretation, And The Powers Granted To Administrative Agencies, Serje Havandjian Apr 2017

The Administrative State: Problems Associated With Congressional Intent, Statutory Interpretation, And The Powers Granted To Administrative Agencies, Serje Havandjian

Journal of the National Association of Administrative Law Judiciary

While reading this article, two questions should be kept in mind: (1) why the Court held that the TSA promulgated whistleblowing regulation was not considered to have the force and effect of law, and how that effects other regulations, and (2) how should the Supreme Court respond if a conflict of congressional intent and statutory interpretation arises within another regulatory or administrative agency's internal scheme for regulating such issues? With a careful analysis of statutory interpretation and determining congressional intent, and some luck, this article will try to answer these questions. Ultimately, what we will find is that although ...


The House Advantage: How The Professional And Amateur Sports Protection Act Undermines Concepts Of Federalism, And Severely Impacts New Jersey's Gambling-Feuled Economy, Anthony D'Alessandro Apr 2017

The House Advantage: How The Professional And Amateur Sports Protection Act Undermines Concepts Of Federalism, And Severely Impacts New Jersey's Gambling-Feuled Economy, Anthony D'Alessandro

Seton Hall Circuit Review

No abstract provided.


The Prevailing Culture Over Immigration: Centralized Immigration And Policies Between Attrition And Accommodation, Antonios Kouroutakis Apr 2017

The Prevailing Culture Over Immigration: Centralized Immigration And Policies Between Attrition And Accommodation, Antonios Kouroutakis

Seton Hall Circuit Review

No abstract provided.


Civil Rights Remedies In Higher Education: Jurisprudential Limitations And Lost Moments In Time, Lia Epperson Apr 2017

Civil Rights Remedies In Higher Education: Jurisprudential Limitations And Lost Moments In Time, Lia Epperson

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.


Precedent And Speech, Randy J. Kozel Mar 2017

Precedent And Speech, Randy J. Kozel

Randy J Kozel

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.

The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within ...


Freedom Of Artistic Creation In The Constitution Of The Republic Of Poland, Filip Cieply Mar 2017

Freedom Of Artistic Creation In The Constitution Of The Republic Of Poland, Filip Cieply

ConLawNOW

The question of freedom of artistic creation, and of its integral aspect at the boundaries of art, is both intriguing in theoretical terms and significant in virtually every age and culture. Limitation of freedom of artistic creation is an issue that crosses various paradigms, hierarchies of values and normative systems.

The aim of this paper is to give an introduction to the interpretation of Article 73 of the Constitution of the Republic of Poland, which provides for freedom of artistic expression. In particular, the focus is put on the constitutional basis for legally limiting the freedom of artistic creation.


From Treaties To International Commitments: The Changing Landscape Of Foreign Relations Law, Jean Galbraith Mar 2017

From Treaties To International Commitments: The Changing Landscape Of Foreign Relations Law, Jean Galbraith

Faculty Scholarship

Sometimes the United States makes international commitments in the manner set forth in the Treaty Clause. But far more often it uses congressional-executive agreements, sole executive agreements, and soft law commitments. Foreign relations law scholars typically approach these other processes from the perspective of constitutional law, seeking to determine the extent to which they are constitutionally permissible. In contrast, this Article situates the myriad ways in which the United States enters into international commitments as the product not only of constitutional law, but also of international law and administrative law. Drawing on all three strands of law provides a rich ...


Who's The Check On Authoritarianism In The Whitehouse?, Alan E. Garfield Feb 2017

Who's The Check On Authoritarianism In The Whitehouse?, Alan E. Garfield

Alan E Garfield

No abstract provided.


In Defense Of Birthright Citizenship, Shannon Auvil Feb 2017

In Defense Of Birthright Citizenship, Shannon Auvil

DePaul Journal for Social Justice

No abstract provided.


Precedent And Speech, Randy J. Kozel Feb 2017

Precedent And Speech, Randy J. Kozel

Journal Articles

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its position on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways both large and small.

The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within ...


Tears In Heaven: Religiously And Culturally Sensitive Laws For Preventing The Next Pandemic, Eloisa C. Rodriguez-Dod, Aileen Maria Marty, Elena Maria Marty-Nelson Jan 2017

Tears In Heaven: Religiously And Culturally Sensitive Laws For Preventing The Next Pandemic, Eloisa C. Rodriguez-Dod, Aileen Maria Marty, Elena Maria Marty-Nelson

Catholic University Law Review

This Article argues that laws created to curtail the spread of deadly contagious diseases need to be drafted and implemented in ways that maximize acceptance of an affected communities’ cultural and religious beliefs. When laws are put in place that are inconsistent with community mores, the overall goal of stopping an epidemic is threatened. Communities often distrust government and other relief organizations who mandate rules and regulations that impinge their religious and cultural beliefs; thus, these regulations geared at helping communities can paradoxically undermine the goal of preventing the spread of infectious disease.

This Article focuses on the need for ...