Constitutional Law Commons^™

The Role Of Courts In Improving The Legislative Process, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

ג'ון הארט גרוניס?: פסיקתו של הנשיא גרוניס לאור התיאוריה החוקתית של אילי (John Hart Grunis?: The Jurisprudence Of Chief Justice Grunis In Light Of Ely's Constitutional Theory), Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

Direitos Sociais, Estado De Direito E Desigualdade: Reflexões Sobre As Críticas À Judicialização Dos Direitos Prestacionais, Jane Reis Gonçalves Pereira

Jane Reis Gonçalves Pereira

A tensão ancestral entre democracia e poder judicial é aparentemente acentuada quando se trata de conferir efetividade aos direitos sociais. O presente artigo discute as principais críticas à implementação de direitos positivos pelo Poder Judiciário. Primeiramente, é apresentada uma revisão dos tópicos mais importantes na dogmática sobre os direitos sociais. Em sequência, busca-se enfrentar as objeções postas à ampliação do papel do Judiciário na realização desses direitos, sem deixar de reconhecê-las como referenciais importantes para a construção de um modelo interpretativo adequado. A hipótese central é de que as críticas à intervenção do Judiciário em políticas públicas sobrevalorizam as falhas …

7 Things You Need To Know About: The American Court System, Corey A. Ciocchetti

Corey A Ciocchetti

These presentation slides cover the 7 most important things you need to know about the American Court System. They cover: personal jurisdiction, subject matter jurisdiction, removal, change of venue, and the steps in bringing a lawsuit.

Access To Justice For A New Century: The Way Forward, Julia H. Bass, W. A. Bogart, Frederick H. Zemans

Frederick H. Zemans

This book is a timely addition to the literature on access to justice. The book's essays address all aspects of the topic, including differing views on the meaning of access to justice; ways to improve access to legal services; litigation and its role in achieving social justice; and the roles of lawyers, citizens, and legal insitutions.

Access to Justice for a New Century is based on papers given at an international symposium presented by the Law Society of Upper Canada, sponsored by the Law Foundation of Ontario.

Obergefell V. Hodges: How The Supreme Court Should Have Ruled, Adam Lamparello

Adam Lamparello

In Obergefell, et al. v. Hodges, Justice Kennedy’s majority opinion legalizing same-sex marriage was based on “the mystical aphorisms of a fortune cookie,” and “indefensible as a matter of constitutional law.” Kennedy’s opinion was comprised largely of philosophical ramblings about liberty that have neither a constitutional foundation nor any conceptual limitation. The fictional opinion below arrives at the same conclusion, but the reasoning is based on equal protection rather than due process principles. The majority opinion holds that same-sex marriage bans violate the Equal Protection Clause because they: (1) discriminate on the basis of gender; (2) promote gender-based stereotypes; and …

Currency Of Love: Customary International Law And The Battle For Same-Sex Marriage In The United States, 14 U. Pa. J.L. & Soc. Change 53 (2011), Sonia Bychkov Green

Sonia Bychkov Green

No abstract provided.

Supreme Court Leaks And Recusals: A Response To Professor Steven Lubet’S Scotus Ethics In The Wake Of Nfib V. Sebelius, 47 Val. U. L. Rev. 925 (2013), Kevin Hopkins

Kevin L. Hopkins

As Professor Steven Lubet notes in his article, Stonewalling, Leaks, and Counter-Leaks: SCOTUS Ethics in the Wake of NFIB v. Sebelius, the ethical conduct of Supreme Court Justices has once again gained national attention. This time, however, the context for public outcry is due to actions of an in-house source who released confidential information to a member of the press concerning the voting behavior and the overall sentiments of members of the Court's minority in one of the most significant and controversial rulings of the year: NFIB v. Sebelius (the "Affordable Care Act"). Professor Lubet uses this leaking of significant …

Rid Of Habeas Corpus - How Ineffective Assistance Of Counsel Has Endangered Access To The Writ Of Habeas Corpus And What The Supreme Court Can Do In Maples And Martinez To Restore It, 45 Creighton L. Rev. 185 (2011), Hugh Mundy

Hugh Mundy

No abstract provided.

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.

Justice Kennedy's Decision In Obergefell: A Sad Day For The Judiciary, Adam Lamparello

Adam Lamparello

Same-sex couples have a constitutional right to marriage under the Equal Protection Clause, not under Justice Kennedy’s self-serving and ever-changing definition of liberty. The long-term impact of Kennedy’s decision will be to the Court’s institutional legitimacy. Chief Justice Roberts emphasized that the legitimacy of this Court ultimately rests “upon the respect accorded to its judgments,” which is based on the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law.” Justice Kennedy’s decision eschewed these values, giving the Court the power to discover “new dimensions of freedom,” and to ensure that all citizens, through …

A Call For An Overhaul Of The U.S. Federal Court System, Huhnkie Lee

Huhnkie Lee

No abstract provided.

A Call For An Overhaul Of The U.S. Federal Court System, Huhnkie Lee

Huhnkie Lee

No abstract provided.

Better Safe? Why Obergefell Matters Before Court Rules, Tanya Washington

Tanya Monique Washington

No abstract provided.

The First Amendment In The Seventh Circuit: 2002, 36 J. Marshall L. Rev. 807 (2003), Donald L. Beschle

Donald L. Beschle

No abstract provided.

Foreword, 37 J. Marshall L. Rev. 317 (2004), Samuel R. Olken

Samuel R. Olken

No abstract provided.

The Ironies Of Marbury V. Madison And John Marshall's Judicial Statesmanship, 37 J. Marshall L. Rev. 391 (2004), Samuel R. Olken

Samuel R. Olken

No abstract provided.

Chief Justice John Marshall And The Course Of American Constitutional History, 33 J. Marshall L. Rev. 743 (2000), Samuel R. Olken

Samuel R. Olken

No abstract provided.

How An Inaccurate Soundbite Might Take Down Obamacare, Eric J. Segall

Eric J. Segall

No abstract provided.

Illinois Courts And The Law Of Miranda Waivers: A Policy Worth Preserving, 30 N. Ill. U. L. Rev. 429 (2010), Timothy P. O'Neill

Timothy P. O'Neill

No abstract provided.

From Expert Witnesses To ‘Fleeting Expletives’: The Supreme Court 2008-2009, Steven Smith

STEVEN R SMITH

The October 2008 Term of the United States Supreme Court began on October 6,2008. By the time the Term adjourned on June 29, 2009, the Court had changed or clarified the law in several important areas. (As we shall see, technically there was another argument in September 2009 as part of this Term.) The Court also seemed to foreshadow larger changes ahead, and saw Justice David Souter announce at the end of April that he would be stepping down from the Court. This article will review the major decisions of the Court during the Term. It will also analyze the …

A Fourth Amendment Framework For The Fee Exercise Clause, Adam Lamparello

Adam Lamparello

This article proposes a paradigm for resolving disputes under the free exercise clause that is analogous to the framework used by the court under the fourth amendment when balancing privacy rights against investigatory powers of law enforcement. In its Fourth Amendment jurisprudence, the Court provides varying degrees of protection to privacy – and imposes different evidentiary requirements on law enforcement – depending on the context in which privacy is affected, the intrusiveness of a particular search, and the asserted governmental interests. For example, privacy receives the strongest protections in areas such as the home, thus requiring law enforcement to have …

Stop Blaming The Prosecutors: The Real Causes Of Wrongful Convictions And Rightful Exonerations, And What Should Be Done To Fix Them, Adam Lamparello, Charles E. Maclean, James J. Berles

Adam Lamparello

Wrongfully convicted and rightfully exonerated criminal defendants spent, on average, ten years in prison before exoneration, and the ramifications to the defendants, the criminal justice system, and society are immeasurable.Prosecutorial misconduct, however, is not the primary cause of wrongful convictions. To begin with, although more than twenty million new adult criminal cases are opened in state and federal courts each year throughout the United States, there have been only 1,281 total exonerations over the last twenty-five years. In only six percent of those cases was prosecutorial misconduct the predominant factor resulting in those wrongful convictions. Of course, although prosecutorial misconduct …

Fundamental Unenumerated Rights Under The Ninth Amendment And Privileges Or Immunities Clause, Adam Lamparello

Adam Lamparello

The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities Clause provides that …

The Scope Of Precedent, Randy J. Kozel

Randy J Kozel

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …

Second Thoughts About The First Amendment, Randy J. Kozel

Randy J Kozel

The U.S. Supreme Court has shown a notable willingness to reconsider — and depart from — its First Amendment precedents. In recent years the Court has marginalized 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 rejected its past decisions on corporate electioneering and aggregate campaign contributions. And it has revised its earlier positions on union financing, abortion protesting, and commercial speech. Under the conventional view of constitutional adjudication, dubious precedents enjoy a presumption of validity through the doctrine of stare decisis. This Article …

Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello

Adam Lamparello

The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a change of …

Legal Indeterminacy And Institutional Design, Michael C. Dorf

Michael C. Dorf

No abstract provided.

Schoolhouses, Courthouses, And Statehouses: Educational Finance, Constitutional Structure, And The Separation Of Powers Doctrine, Michael Heise

Michael Heise

No abstract provided.

Free Exercise Of Religion Before The Bench: Empirical Evidence From The Federal Courts, Michael Heise, Gregory C. Sisk

Michael Heise

We analyze various factors that influence judicial decisions in cases involving Free Exercise Clause or religious accommodation claims and decided by lower federal courts. Religious liberty claims, including those moored in the Free Exercise Clause, typically generate particularly difficult questions about how best to structure the sometimes contentious relation between the religious faithful and the sovereign government. Such difficult questions arise frequently in and are often framed by litigation. Our analyses include all digested Free Exercise and religious accommodation claim decisions by federal court of appeals and district court judges from 1996 through 2005. As it relates to one key …