Law Commons^™

The Law Of The Territories Of The United States In Puerto Rico, The Oldest Colony In The World, Carlos Iván Gorrín Peralta

University of Miami Inter-American Law Review

The territorial law and policy of the United States changed towards the turn of the 20th century, as territorial expansion was no longer motivated by the extension of national borders, but by geopolitical, strategic and economic objectives. The new territories acquired in the Spanish American war were different from those previously annexed. The resulting constitutional doctrine of the Insular Cases differentiated the previous incorporated territories from the new unincorporated territories, which were not destined to be part of the U.S. nor to be admitted as new states. Despite purported changes in the relation with the United States in 1950-1952, Puerto …

Concerning United States Constitutional War Powers, Marcus Armstrong

St. Mary's Law Journal

The United States faces a future in which the possibility of a conventional, great-power conflict is elevated. This is because of a constitutional interpretation that has altered United States constitutional war powers significantly. Specifically, the interpretation gives the president the authority to initiate and escalate war or hostilities unilaterally. In this Article, I reexamine that specific historical interpretation and find it wanting. I then offer a different historical interpretation, drawing upon other contemporary writers as well as upon historical events in order to give a more complete and nuanced understanding of the context in which the early American leaders developed …

Men's Rights, Gun Ownership, Racism, And The Assault On Women's Reproductive Health Rights: Hidden Connections, Walter S. Dekeseredy

Dignity: A Journal of Analysis of Exploitation and Violence

In this current era characterized by much fear of, and anxiety about, the political influence and actions of the U.S. alternative right (alt-right), only a small number of men’s rights organizations receive attention from the media, the Democratic Party, or a large cadre of progressives. This article demonstrates that ignoring all-male anti-feminist organizations is a flawed strategy for challenging the recent rise of the alt-right because these misogynistic groups are heavily involved in the gun rights movement, major contributors to racist practices and discourses, and active participants in efforts to criminalize and curtail women’s access to abortion. Another, but equally …

A Constitutional Theory Of Territoriality: The Case Of Puerto Rico, Joel Colón-Ríos, Yaniv Roznai

Cleveland State Law Review

This Article offers an analysis of the relationship between Puerto Rico and the United States that, unlike most of the existing literature, goes beyond discussions of the jurisprudence of U.S. courts and avoids providing merely descriptive or justificatory accounts. Using the tools of constitutional theory, we seek to describe the nature of what we call the “basic structure of territoriality,” the way that structure reproduces itself, and the possibility of its replacement. The basic structure of territoriality, we argue, is comprised by ten fundamental legal rules and five principles. Although those principles are not legally enforceable, they inform in important …

The Flag Can Travel But The Constitution Must Ask Permission: How The First Circuit And The District For Puerto Rico Commit To Equal Protection Without Abandoning The Insular Cases Doctrine, Alejandro J. Anselmi González

University of Miami Inter-American Law Review

For American citizens, one of the most important safeguards guaranteed by the Constitution of the United States is the equal protection of the law. The United States prides itself on the doctrine and jurisprudence of equal protection because of the social progression achieved since the end of the Civil War. The Reconstruction Amendments to the Constitution eliminated the institution of slavery and were supposed to guarantee equal civil and legal status to all citizens. The Constitution, however, has not been consistently interpreted in this way since the end of the Spanish-American War in 1898. The nation emerged from this conflict …

Maternity Rights: A Comparative View Of Mexico And The United States, Roberto Rosas

The Scholar: St. Mary's Law Review on Race and Social Justice

Women play a large role in the workplace and require additional protection during pregnancy, childbirth, and while raising children. This article compares how Mexico and the United States have approached the issue of maternity rights and benefits. First, Mexico provides eighty-four days of paid leave to mothers, while the United States provides unpaid leave for up to twelve weeks. Second, Mexico allows two thirty-minute breaks a day for breastfeeding, while the United States allows a reasonable amount of time per day to breastfeed. Third, Mexico provides childcare to most federal employees, while the United States provides daycares to a small …

The Right To Food In Puerto Rico: Where Colonialism And Disaster Meet, Gabriela Valentín Díaz

University of Miami Inter-American Law Review

No abstract provided.

The Global Rise Of Judicial Review Since 1945, Steven G. Calabresi

Catholic University Law Review

This article expands upon the theory put forth in Professor Bruce Ackerman’s book, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law, in which he posits that twentieth century revolutions in a variety of countries led to the constitutionalization of charisma, thus binding countries to the written constitutions established by their revolutionary leaders.

Constitutional law scholar, Steven G. Calabresi, argues here that world constitutionalism, in fact, existed prior to 1945, and what is especially striking about the post-1945 experience is that the constitutionalism of charisma included not only the adoption of written constitutions, but also the adoption of meaningful …

Freedom Of The Press In U.S. Protests, Abigail Rosenthal

Human Rights Brief

No abstract provided.

From Common Law To Constitution, Sanctioned Dispossession And Subjugation Through Otherization And Discriminatory Classification, Mobolaji Oladeji

Journal of Race, Gender, and Ethnicity

No abstract provided.

Equity In American And Jewish Law, Itzchak E. Kornfeld , Ph.D.

Touro Law Review

No abstract provided.

Understanding The Politics Of Resentment: Of The Principles, Institutions, Counter-Strategies, Normative Change, And The Habits Of Heart, Tomasz Tadeusz Koncewicz

Indiana Journal of Global Legal Studies

The paper asks, when is a constitutional design of any (domestic, international, supranational) polity in error? On the most general level, such a critical juncture occurs when a polity's founding document (treaty, convention, constitution) protects against dangers that no longer exist or does not protect against the dangers that were not contemplated by the founders. Constitutions not only rule but should also protect against deconstitution. When analyzed together, the cases of Hungary, Poland, South America, and more recently, the United States, suggest a worrying new pattern of the erosion of constitutional democracies. One may even speak of a recipe for …

Reforming Recidivism: Making Prison Practical Through Help, Katelyn Copperud

The Scholar: St. Mary's Law Review on Race and Social Justice

While Texas has long been recognized as “Tough Texas” when it comes to crime, recent efforts have been made to combat that reputation. Efforts such as offering “good time” credit and more liberal parole standards are used to reduce the Texas prison populations. Although effective in reducing prison populations, do these incentives truly reduce a larger issue of prison overpopulation: recidivism?

In both state and federal prison systems, inmate education is proven to reduce recidivism. Texas’s own, Windham School District, provides a broad spectrum of education to Texas Department of Criminal Justice inmates; from General Education Development (GED) classes to …

State Regulations Are Failing Our Children: An Analysis Of Child Marriage Laws In The United States, Rachel L. Schuman

William & Mary Law Review

No abstract provided.

A View From American Courts: The Year In Indian Law 2017, Grant Christensen

Seattle University Law Review

This Article provides a comprehensive review of Indian law for 2017. It does not include a citation to every case related to Indian law issued by the courts but tries to incorporate the majority of opinions into its catalog to provide a robust discussion of the changes in Indian law over the course of 2017. Part I of this Article provides some general statistics about Indian law in 2017. Part II focuses on activity at the U.S. Supreme Court, which is the most watched forum for Indian law cases for obvious reasons. Part III groups cases by subject area and …

Being Seen Like A State: How Americans (And Britons) Built The Constitutional Infrastructure Of A Developing Nation, Daniel J. Hulsebosch

William & Mary Law Review

This Article develops the argument that the Federal Constitution of 1787 was conceptualized, drafted, and put into operation not only for American citizens but also for foreign audiences. In a world without supranational governing institutions, a constitution—at least, the Federal Constitution—might serve to promote peaceable international relations based on reciprocal trade and open credit. That at least was the Enlightenment-inflected hope.

Did it work? If early Americans engaged in constitution-making in large part to demonstrate their capacity for self-government, selfdiscipline, and commercial openness to foreign audiences, did anyone notice? Or was it all, regardless of diplomatic purposes and consistent with …

Everyone Take A Knee And Listen Up! Examining Student-Athlete Protests During The National Anthem, Zack Zastrow

Marquette Sports Law Review

None

Inseparable: Perspective Of Senator Daniel Webster, Ernest M. Oleksy

The Downtown Review

Considering the hypersensitivity that their nation has towards race relations, it is often ineffable to contemporary Americans as to how anyone could have argued against abolition in the 19th century. However, by taking the perspective of Senator Daniel Webster speaking to an audience of disunionist-abolitionists, proslaveryites, and various shades of moderates, numerous points of contention will be brought to light as to why chattel slavery persisted so long in the U.S. Focal points of dialogue will include the Narrative of Frederick Douglass, the "positive good" claims of Senator John C. Calhoun, the disunionism of William Lloyd Garrison, and the defense …

The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis, P. Thomas Distanislao Iii

University of Richmond Law Review

No abstract provided.

Anchors Aweigh: Analyzing Birthright Citizenship As Declared (Not Established) By The Fourteenth Amendment, Elizabeth Farrington

University of Richmond Law Review

No abstract provided.

Judicial Departmentalism: An Introduction, Kevin C. Walsh

William & Mary Law Review

This Article introduces the idea of judicial departmentalism and argues for its superiority to judicial supremacy. Judicial supremacy is the idea that the Constitution means for everybody what the Supreme Court says it means in deciding a case. Judicial departmentalism, by contrast, is the idea that the Constitution means in the judicial department what the Supreme Court says it means in deciding a case. Within the judicial department, the law of judgments, the law of remedies, and the law of precedent combine to enable resolutions by the judicial department to achieve certain kinds of settlements. Judicial departmentalism holds that these …

In Defense Of Judicial Supremacy, Erwin Chemerinsky

William & Mary Law Review

“Judicial supremacy” is the idea that the Supreme Court should be viewed as the authoritative interpreter of the Constitution and that we should deem its decisions as binding on the other branches and levels of government, until and unless constitutional amendment or subsequent decision overrules them. This is desirable because we want to have an authoritative interpreter of the Constitution and the Court is best suited to play this role. Under this view, doctrines which keep federal courts from enforcing constitutional provisions—such as denying standing for generalized grievances, the political question doctrine, and the state secrets doctrine—are misguided and should …

Judicial Supremacy And Taking Conflicting Rights Seriously, Rebecca L. Brown

William & Mary Law Review

The best arguments in favor of judicial supremacy rely on its essential role of protecting rights in a democracy. The doctrinal technique of strict scrutiny, developed to do the work of judicial supremacy, has been an important tool in our constitutional jurisprudence in the service of rights protection. When the Supreme Court reviews laws that themselves seek to enhance or preserve constitutional rights, however, strict scrutiny does not provide the right approach. Rather, the Court should consider very carefully the rights claims in favor of the statute as well as those launched by a challenger. In such cases of conflicting …

The Annoying Constitution: Implications For The Allocation Of Interpretive Authority, Frederick Schauer

William & Mary Law Review

Constitutional constraints often restrict unwise or immoral official policies and actions, but also often invalidate laws and other official acts that are sound as a matter of both morality and policy. These second-order side constraints—or trumps—on even official acts that are sound as a matter of first-order policy reflect deeper or longerterm values, and they are central to understanding the very idea of constitutionalism. Moreover, once we see the Constitution as restricting not only the unsound and the unwise but also the sound and the wise, we can understand why expecting those whose sound ideas and policies are nevertheless unconstitutional …

Much Ado About Nothing: Signing Statements, Vetoes, And Presidential Constitutional Interpretation, Keith E. Whittington

William & Mary Law Review

During the Bush presidency, presidential signing statements became briefly controversial. The controversy has faded, but the White House continues to issue statements when signing legislation. Those statements frequently point out constitutional difficulties in new statutes and sometimes warn that the executive branch will administer the statutes so as to avoid those constitutional difficulties. This Article argues that the criticisms of signing statements were mostly misguided. Signing statements as such present few problems and offer some benefits to the workings of the American political system. While there might be reason to object to the substantive constitutional positions adopted in any given …

Why Congress Does Not Challenge Judicial Supremacy, Neal Devins

William & Mary Law Review

Members of Congress largely acquiesce to judicial supremacy both on constitutional and statutory interpretation questions. Lawmakers, however, do not formally embrace judicial supremacy; they rarely think about the courts when enacting legislation. This Article explains why this is so, focusing on why lawmakers have both strong incentive to acquiesce to judicial power and little incentive to advance a coherent view of congressional power. In particular, lawmakers are interested in advancing favored policies, winning reelection, and gaining personal power within Congress. Abstract questions of institutional power do not interest lawmakers and judicial defeats are seen as opportunities to find some other …

Judicial Supremacy Revisited: Independent Constitutional Authority In American Constitutional Law And Practice, Mark A. Graber

William & Mary Law Review

The Supreme Court exercises far less constitutional authority in American law and practice than one would gather from reading judicial opinions, presidential speeches, or the standard tomes for and against judicial supremacy. Lower federal court judges, state court justices, federal and state elected officials, persons charged with administering the law, and ordinary citizens often have the final say on particular constitutional controversies or exercise temporary constitutional authority in ways that have more influence on the parties to that controversy than the eventual Supreme Court decision. In many instances, Supreme Court doctrine sanctions or facilitates the exercise of independent constitutional authority …

Soft Supremacy, Corinna Barrett Lain

William & Mary Law Review

The debate over judicial supremacy has raged for more than a decade now, yet the conception of what it is we are arguing about remains grossly oversimplified and formalistic. My aim in this symposium contribution is to push the conversation in a more realistic direction; I want those who claim that judicial supremacy is antidemocratic to take on the concept as it actually exists. The stark truth is that judicial supremacy has remarkably little of the strength and hard edges that dominate the discourse in judicial supremacy debates. It is porous, contingent—soft. And the upshot of soft supremacy is this: …

Preemption As A Consistency Doctrine, Jesse Merriam

William & Mary Bill of Rights Journal

No abstract provided.

Preventing An Air Panopticon: A Proposal For Reasonable Legal Restrictions On Aerial Surveillance, Jake Laperruque

University of Richmond Law Review

No abstract provided.