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Articles 1 - 30 of 86
Full-Text Articles in Law
“Reasoning-Lite” In The Violent Video Game Case, Alan Garfield
“Reasoning-Lite” In The Violent Video Game Case, Alan Garfield
Alan E Garfield
One might have expected that the Supreme Court’s recent decision in the violent video game case, Brown v. Entertainment Merchants Ass’n, would have been a thoughtful balancing of society’s competing interests in protecting freedom of speech and protecting children from harm. After all, the Supreme Court had held decades earlier that the government could deny minors access to soft-porn, or what the Court called “girlie magazines.” So one could have assumed the Court would seriously consider California’s claim that minors also needed sheltering from the grittier world of violent video game rapes, beheadings, and ethnic cleansings. Yet, as Justice Scalia’s …
The Constitutionality Of The Patient Protection And Affordable Care Act In The Courts Of Appeals, Mel Cousins
The Constitutionality Of The Patient Protection And Affordable Care Act In The Courts Of Appeals, Mel Cousins
Mel Cousins
Having undergone an extensive process of political discussion and debate, the ACA (properly the Patient Protection and Affordable Care Act) is now under intensive legal challenge with over 20 different cases from both states and organizations and individuals having been initiated. The challengers argue that the Act lacks a constitutional basis and/or infringes on their constitutional rights. These cases involve a fascinating intersection of legal, political and policy issues and, regardless of the outcome, will have important implications for the future direction of US health care policy. There have now been four decisions of the courts of appeal on the …
Perfectly Legal To Mandate The Purchase Of Insurance, Alan E. Garfield
Perfectly Legal To Mandate The Purchase Of Insurance, Alan E. Garfield
Alan E Garfield
No abstract provided.
Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe
Notes On Borrowing And Convergence, Robert L. Tsai, Nelson Tebbe
Faculty Scholarship
This is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.
Church Autonomy Versus Civil Rights, Alan E. Garfield
Church Autonomy Versus Civil Rights, Alan E. Garfield
Alan E Garfield
No abstract provided.
Lochner V. New York (1905) And Kennedy V. Louisiana (2008): Judicial Reliance On Adversary Argument, Douglas E. Abrams
Lochner V. New York (1905) And Kennedy V. Louisiana (2008): Judicial Reliance On Adversary Argument, Douglas E. Abrams
Faculty Publications
Chief Justice William H. Rehnquist called Lochner v. New York (1905) “one of the most ill-starred decisions that [the Supreme Court ever rendered.” The Justices’ deliberations preceding the 5-4 decision demonstrate the courts’ reliance on advocacy in the adversary system of civil and criminal justice. The stark imbalance between the state’s “incredibly sketchy” brief and Joseph Lochner’s sterling submission may have determined Lochner’s outcome, and thus may have changed the course of constitutional history, by leading two Justices to join the majority on the central question of whether New York’s maximum-hours law for bakery workers was a reasonable public health …
Pennsylvania Constitutional Conventions: Discarding The Myths, John Gedid
Pennsylvania Constitutional Conventions: Discarding The Myths, John Gedid
John L. Gedid
No abstract provided.
Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, Gary S. Lawson, David Kopel
Bad News For Professor Koppelman: The Incidental Unconstitutionality Of The Individual Mandate, Gary S. Lawson, David Kopel
Faculty Scholarship
In "Bad News for Mail Robbers: The Obvious Constitutionality of Health Care Reform," Professor Andrew Koppelman concludes that the individual mandate in the Patient Protection and Affordable Care Act (PPACA) is constitutionally authorized as a law "necessary and proper for carrying into Execution" other aspects of the PPACA. However, the Necessary and Proper Clause rather plainly does not authorize the individual mandate.
The Necessary and Proper Clause incorporates basic norms drawn from eighteenth-century agency law, administrative law, and corporate law. From agency law, the clause embodies the venerable doctrine of principals and incidents: a law enacted under the clause must …
Aep V. Connecticut And The Future Of The Political Question Doctrine, James R. May
Aep V. Connecticut And The Future Of The Political Question Doctrine, James R. May
James R. May
No abstract provided.
The Constitution And Economic Policy, Alan E. Garfield
The Constitution And Economic Policy, Alan E. Garfield
Alan E Garfield
No abstract provided.
Constitutional Environmental Rights Worldwide, James May, Erin Daly
Constitutional Environmental Rights Worldwide, James May, Erin Daly
Erin Daly
No abstract provided.
The Framers' Intent: John Adams, His Era, And The Fourth Amendment, Thomas K. Clancy
The Framers' Intent: John Adams, His Era, And The Fourth Amendment, Thomas K. Clancy
Indiana Law Journal
No abstract provided.
Optimal Specificity In The Law Of Separation Of Powers: The Numerous Clauses Principle, Gary S. Lawson
Optimal Specificity In The Law Of Separation Of Powers: The Numerous Clauses Principle, Gary S. Lawson
Faculty Scholarship
In this response to Professor John Manning’s Separation of Powers as Ordinary Interpretation, Professor Gary Lawson agrees with Manning’s argument that there is no overarching constitutional principle of “optimal specificity.” Lawson argues, however, that there are other overarching principles that are fairly derivable from the text, such as a principle of “decisional independence.” Moreover, Lawson suggests a bigger potential problem with Manning’s argument: when judges apply functionalist or formalist reasoning to decide cases, they may be engaging in a qualitatively different activity than Manning assumes, and his careful interpretative analysis may therefore be largely beside the point.
Due Process And Fundamental Rights, Martin A. Schwartz
Due Process And Fundamental Rights, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett
The Consumer Financial Protection Bureau's Appointment With Trouble, Kent H. Barnett
Scholarly Works
This article considers whether the Consumer Financial Protection Bureau Director’s appointment of the Bureau’s Deputy Director comports with the Appointments Clause. The Dodd-Frank Wall Street Reform and Consumer Protection Act established the Bureau in July 2010, as well as the offices of the Bureau’s Director and Deputy Director, to coordinate the regulation and enforcement of federal consumer-financial-protection laws. Under that act, the Director appoints the Deputy Director. The Appointments Clause permits “Heads of Departments” to appoint inferior officers like the Deputy Director. But it is unclear if the Bureau is a “department” and thus if the Director is a department …
Jewish Legal Theory And American Constitutional Theory: Some Comparisons And Contrasts, Samuel J. Levine
Jewish Legal Theory And American Constitutional Theory: Some Comparisons And Contrasts, Samuel J. Levine
Samuel J. Levine
In this article, Levine explores some of the ways in which Jewish law may shed light on issues in American constitutional theory. While acknowledging that there are fundamental differences between a religious legal system and a secular one, he attempts to show that certain conceptual similarities between American law and Jewish law allow for meaningful yet cautious comparison of the two systems. Part I provides a broad historical and analytical overview of interpretation in Jewish law. Part II of the Article offers a specific conceptual framework for comparing Jewish law with American law. Levine considers questions of flexibility in legal …
Why Should A President Have To Be A Natural-Born Citizen, Alan E. Garfield
Why Should A President Have To Be A Natural-Born Citizen, Alan E. Garfield
Alan E Garfield
No abstract provided.
Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), Garrett Power
Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), Garrett Power
Garrett Power
This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix …
Dangerous People Or Dangerous Weapons: Access To Firearms For Persons With Mental Illness, Lawrence O. Gostin, Katherine L. Record
Dangerous People Or Dangerous Weapons: Access To Firearms For Persons With Mental Illness, Lawrence O. Gostin, Katherine L. Record
Georgetown Law Faculty Publications and Other Works
The recent attempted assassination of Rep. Gabrielle Giffords has once again focused the nation’s attention on the danger of the wide availability of firearms. The Supreme Court has ruled that gun restrictions may only be imposed on those deemed “prohibited persons” under the Gun Control Act of 1968. Although some are easily identifiable (e.g., children, convicted felons), one widely inclusive group is not – the mentally ill.
The current system designed to bar the mentally ill from purchasing or possessing firearms is ineffectual due to a lack of reporting and the existence of loopholes. What’s more, no state has developed …
Court's Ruling Fiercely Un-Madisonian, Alan E. Garfield
Court's Ruling Fiercely Un-Madisonian, Alan E. Garfield
Alan E Garfield
No abstract provided.
Lee V. Weisman: Whither The Establishment Clause And The Lemon V. Kurtzman Three Pronged Test?, Thomas A. Schweitzer
Lee V. Weisman: Whither The Establishment Clause And The Lemon V. Kurtzman Three Pronged Test?, Thomas A. Schweitzer
Thomas A. Schweitzer
No abstract provided.
Recent Developments At The Juncture Of The Political Question Doctrine And Climate Litigation Law, James R. May
Recent Developments At The Juncture Of The Political Question Doctrine And Climate Litigation Law, James R. May
James R. May
This short essay does three things. First, it provides a primer on the most recent case developments at the juncture of the climate litigation and the political question doctrine. Second, it hazards some discussion about how the Supreme Court might engage the political question issue in Connecticut v. American Electric Power Co., Civ. Action No. 10-174. It ends with some concluding thoughts about the impact that litigation has on climate policy.
Conservative Justices Fail To See Corrupting Influence Of Money, Alan E. Garfield
Conservative Justices Fail To See Corrupting Influence Of Money, Alan E. Garfield
Alan E Garfield
No abstract provided.
Joe The Ploughman Reads The Constitution, Or, The Poverty Of Public Meaning Originalism, Jack N. Rakove
Joe The Ploughman Reads The Constitution, Or, The Poverty Of Public Meaning Originalism, Jack N. Rakove
San Diego Law Review
Originalism is hot. A couple of decades ago, one might have thought that its death knell had sounded when the Supreme Court nomination of Robert Bork failed in the Senate. Although one wondered exactly what kind of originalism Justice Bork might have performed in practice, he was regarded as the theory's leading academic spokesman, and the defeat of his nomination might have served as a fatal blow to the cause. Within a few years, however, Justice Antonin Scalia published his lecture Originalism: The Lesser Evil, signaling that the cause remained alive and well. Although Justice Scalia's views of the practice …
Lochner, Lawrence, And Liberty, Joseph F. Morrissey
Lochner, Lawrence, And Liberty, Joseph F. Morrissey
Georgia State University Law Review
Many of the states of the United States have statutes, constitutional provisions, and court decisions that deny individuals the right to have a family, specifically a spouse and children, based on sexual orientation.
Advocates have made a wide variety of arguments attacking such restrictions. Scholars and litigants frequently argue that such acts violate constitutional guarantees of equal protection or invade a constitutional right to privacy. However, such arguments are often defeated by counter arguments presented with religious, moral, and even emotional fervor.
This article presents and defends a new analytical framework based on liberty of contract to advance gay rights. …
New Directions In Earth Rights, Environmental Rights And Human Rights: Six Facets Of Constitutionally Embedded Environmental Rights Worldwide, James May, Erin Daly
New Directions In Earth Rights, Environmental Rights And Human Rights: Six Facets Of Constitutionally Embedded Environmental Rights Worldwide, James May, Erin Daly
Erin Daly
This essay provides an overview of the worldwide phenomenon of constitutional environmental rights. Since the Stockholm Convention, nearly 60 countries have constitutionally entrenched environmental rights, according their citizens basic rights to environmental quality in one form or another. The list is diverse politically, including countries with civil, common law, Islamic, and other traditions. Some of the more recent of these include Kenya in 2010, Ecuador in 2007, France in 2005, Afghanistan in 2004, and South Africa in 1996. As a result, domestic courts and international tribunals are enforcing constitutionally enshrined environmental rights with growing frequency, reflecting basic human rights to …
Leave Health Care Law's Validity Up To Voters, Alan E. Garfield
Leave Health Care Law's Validity Up To Voters, Alan E. Garfield
Alan E Garfield
No abstract provided.
Taking War Seriously: A Model For Constitutional Constraints On The Use Of Force, In Compliance With International Law, Craig Martin
Taking War Seriously: A Model For Constitutional Constraints On The Use Of Force, In Compliance With International Law, Craig Martin
Craig Martin
This article develops an argument for increased constitutional control over the decision to use armed force or engage in armed conflict, as a means of reducing the incidence of illegitimate armed conflict. In particular, the Model would involve three elements: a process-based constitutional incorporation of the principles of international law relating to the use of force (the jus ad bellum regime); a constitutional requirement that the legislature approve any use of force rising above a de minimus level; and an explicit provision for limited judicial review of the decision-making process. The Model is not designed with any one country in …
Honest Debate At Core Of Constitution, Alan E. Garfield
Honest Debate At Core Of Constitution, Alan E. Garfield
Alan E Garfield
No abstract provided.
Dignity In The Service Of Democracy, Erin Daly
Dignity In The Service Of Democracy, Erin Daly
Erin Daly
At a broad level, perhaps the most noticeable trend in Latin American constitutional law is the increasing muscularity of constitutional tribunals. Throughout the region, particularly in South America, tribunals charged with interpreting their country’s constitution are increasingly asserting themselves and inserting themselves into public controversies, from abortion to same sex marriage to the rights of political association. This heightened judicial activity can come at a cost to democracy: typically, the more social issues are decided by unelected and unaccountable judges rather than through a political process, the less the people control the resolution of those issues. The more outcomes are …