Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Keyword
-
- Jurisprudence (4)
- Constitutional law (3)
- Constitutional theory (2)
- Medellin (2)
- Activism (1)
-
- Autonomy (1)
- Beliefs and convictions (1)
- CISG (1)
- Canadian Human Rights Act (1)
- Choice of law (1)
- Commercial speech (1)
- Conflict of laws (1)
- Constitution (1)
- Constitution Article III (1)
- Constitutional Law (1)
- Constitutional doctrine (1)
- Constitutional interpretation (1)
- Constraint (1)
- Decision making (1)
- Discrimination (1)
- Dissent (1)
- Economic welfare (1)
- Economics of Federalism (1)
- Equal Protection Clause (1)
- Error theory (1)
- European Court of Justice (1)
- Expansion (1)
- Federal Judicial Misconduct Statute (1)
- Federal Power (1)
- Federalism (1)
Articles 1 - 14 of 14
Full-Text Articles in Constitutional Law
Speak Clearly And Carry A Big Stock Of Dollar Reserves: Sovereign Risk, Ideology, And Presidential Elections In Argentina, Brazil, Mexico, And Venezuela, Anthony Petros Spanakos, Lucio Remuzat Renno Junior
Speak Clearly And Carry A Big Stock Of Dollar Reserves: Sovereign Risk, Ideology, And Presidential Elections In Argentina, Brazil, Mexico, And Venezuela, Anthony Petros Spanakos, Lucio Remuzat Renno Junior
Department of Political Science and Law Faculty Scholarship and Creative Works
Partisan theories of political economy expect that bondholders will panic with the election of a left-wing presidential candidate. The latter seems to be what happened in Brazil in the 2002 presidential elections. However, quantitative analysis of perceptions of sovereign credit risk in Argentine, Brazilian, Mexican, and Venezuelan presidential elections from 1994 until 2007 shows no real evidence of a link between partisanship and perceptions of risk, even if the left-right divide is further broken down into left, center-left, center-right, right. Instead, international and domestic economic fundamentals have a stronger influence on risk evaluations. Qualitative analysis of the individual presidential elections …
Impeaching A Federal Judge: Some Lessons From History, Arthur D. Hellman
Impeaching A Federal Judge: Some Lessons From History, Arthur D. Hellman
Testimony
In August 2014, Federal District Judge Mark Fuller was arrested on a charge of misdemeanor battery after his wife called 911 from an Atlanta hotel room and told the operator, “He’s beating on me.” Judge Fuller has agreed to enter a pre-trial diversion program; if he completes the program, the criminal case against him will be dismissed. But Judge Fuller may face other consequences. The Acting Chief Judge of the Eleventh Circuit has initiated proceedings under the federal judicial misconduct statute. And some members of Congress and editorial writers have said that if Judge Fuller does not resign from the …
Equality, Conscience, And The Liberty Of The Church: Justifying The Controversiale Per Controversialius, Patrick Mckinley Brennan
Equality, Conscience, And The Liberty Of The Church: Justifying The Controversiale Per Controversialius, Patrick Mckinley Brennan
Working Paper Series
This paper considers the central normative claim of Martha Nussbaum’s Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, viz., that the U.S. Constitution’s religion clauses should be construed to provide equal (and extensive) protection to the vulnerable human faculty called conscience. The paper argues that Nussbaum’s argument from Rawlsian political liberalism that leads to her normative constitutional claim amounts, perversely, to an attempt to justify the controversial by the more controversial. The paper goes on to argue that while equality and conscience are concepts that are reasonably contested, Nussbaum illegitimately gives them priority over the also reasonably …
The Indivisible Constitution, Kermit Roosevelt Iii
The Indivisible Constitution, Kermit Roosevelt Iii
All Faculty Scholarship
In The Invisible Constitution, Laurence Tribe argues that many of our most deeply-held constitutional convictions are not to be found in the words of the Constitution itself. They are, instead, part of what he calls the invisible Constitution. This review essay argues that although that claim is true, it is not worth spending a book on. Moreover, its very truth—the fact that certain “invisible” constitutional propositions are as central and well-established as textual ones—undermines the value of treating the “invisible” Constitution as a qualitatively different entity.
Social Facts, Constitutional Interpretation, And The Rule Of Recognition, Matthew D. Adler
Social Facts, Constitutional Interpretation, And The Rule Of Recognition, Matthew D. Adler
All Faculty Scholarship
This essay is a chapter in a volume that examines constitutional law in the United States through the lens of H.L.A. Hart’s “rule of recognition” model of a legal system. My chapter focuses on a feature of constitutional practice that has been rarely examined: how jurists and scholars argue about interpretive methods. Although a vast body of scholarship provides arguments for or against various interpretive methods --such as textualism, originalism, “living constitutionalism,” structure-and-relationship reasoning, representation-reinforcement, minimalism, and so forth -- very little scholarship shifts to the meta-level and asks: What are the considerations that jurists and scholars bring to bear …
The Number Of States And The Economics Of American Federalism, Steven G. Calabresi, Nicholas K. Terrell
The Number Of States And The Economics Of American Federalism, Steven G. Calabresi, Nicholas K. Terrell
Faculty Working Papers
In 1789 it was possible to speak of a federation of distinct States joined together for their mutual advantage, but today it is rather the Nation that is divided into subnational units. What caused this shift in focus from the States to the Federal Government? Surely the transformation from a collection of thirteen historically separate States clustered along the Atlantic seaboard to a group of fifty States largely carved out of Federal territory has played a role. Building on previous analysis of the economics of federalism, this essay considers the dynamic effects of increasing the number of states on the …
Original Intention And Public Meaning In Constitutional Interpretation, Richard Kay
Original Intention And Public Meaning In Constitutional Interpretation, Richard Kay
Faculty Articles and Papers
In recent years academic explanations of the originalist approach to constitutional interpretation have shifted the relevant inquiry from the subjective intent of the constitution-makers to the original public meaning of the Constitution's words. This article is a critical analysis of that development. In the actual course of adjudication by honest and competent judges either method should usually yield the same result. The reliance on public meaning, however, distracts the interpreter from the connection between the normative force of the Constitution and the founding events, a link that is essential to the legitimacy of constitutional judicial review. In the hands of …
Adding Social Condition To The Canadian Human Rights Act, A. Wayne Mackay, Natasha Kim
Adding Social Condition To The Canadian Human Rights Act, A. Wayne Mackay, Natasha Kim
Reports & Public Policy Documents
Almost a decade ago, in June 2000, the Canadian Human Rights Act Review Panel conducted a comprehensive review of the Canadian Human Rights Act [CHRA] and recommended that “social condition” be added as a prohibited ground of discrimination. Since then, no action has been taken to implement this recommendation, despite calls for action from international bodies, political actors, human rights agencies and organizations, and academic commentators to provide protections from discrimination for those suffering from social and economic disadvantage. The authors analyze the experiences at the provincial level with socio-economic grounds of discrimination, jurisprudential developments under the Canadian Charter of …
Limits Of Interpretivism, Richard A. Primus
Limits Of Interpretivism, Richard A. Primus
Articles
Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex.
Treaties And The Separation Of Powers In The United States: A Reassessment After Medellin V. Texas, Ronald A. Brand
Treaties And The Separation Of Powers In The United States: A Reassessment After Medellin V. Texas, Ronald A. Brand
Articles
This article considers Chief Justice Roberts' majority opinion in the case of Medellin v. Texas. Like much of the commentary on this case, the article considers the international law implications of the opinion and its consideration of the doctrine of self-executing treaties. The primary focus here, however, consistent with the symposium in which this paper was presented, is on the opinion's implications for the separation of powers and for federalism. While the opinion's discussion of international law and treaty implementation can be considered dicta, the separation of powers and federalism portions may be seen as more directly necessary to …
The European Magnet And The U.S. Centrifuge: Ten Selected Private International Law Developments Of 2008, Ronald A. Brand
The European Magnet And The U.S. Centrifuge: Ten Selected Private International Law Developments Of 2008, Ronald A. Brand
Articles
This article considers ten developments in private international law that occurred in 2008. In doing so, it focuses on the way in which these developments demonstrate a parallel convergence of power for private international in the institutions of the European Community and dispersal of power for private international law in the United States. This process carries with it important implications for the future roles of both the European Union and the United States in the multilateral development of rules of private international law, with the EU moving toward an enhanced leadership role and the United States restricting its own ability …
The First Amendment And Commercial Speech, C. Edwin Baker
The First Amendment And Commercial Speech, C. Edwin Baker
All Faculty Scholarship
After a quick summary of constitutional treatment of commercial speech, this essay outlines four reasons why commercial speech should be denied First Amendment protection. Working from the claim that the primary rationale for constitutional protection of speech is the mandate that government respect individual freedom or autonomy, the essay argues: 1) that the individual does not choose, but rather the market dictates the content of commercial speech; 2) that the commercial speech should be attributed to an artificial, instrumentally entity – the business enterprise – rather than the flesh and blood person whose liberty merits protection; 3) market exchanges involve …
Constitutional Theory And The Rule Of Recognition: Toward A Fourth Theory Of Law, Mitchell N. Berman
Constitutional Theory And The Rule Of Recognition: Toward A Fourth Theory Of Law, Mitchell N. Berman
All Faculty Scholarship
This essay, a contribution to a forthcoming edited volume on Hart's rule of recognition and the U.S. Constitution, advances one argument and pitches one proposal. The argument is that Hart's theory of law does not succeed. On Hart's account, legal propositions are what they are - that is, they have the particular content and status that they do - by virtue of their satisfying necessary and sufficient conditions that are themselves established by a special sort of convergent practice among officials. American constitutional theorists are often troubled by this account because it seems to imply that in the "hard cases" …
The Missing Jurisprudence Of The Legislated Constitution, Robin West
The Missing Jurisprudence Of The Legislated Constitution, Robin West
Georgetown Law Faculty Publications and Other Works
Does the fourteenth Amendment and its Equal Protection Clause — the promise that "no state shall deny equal protection of the laws" — have any relevance to the progressive project of reducing economic inequality in various spheres of life or, more modestly, of ameliorating the multiple vulnerabilities of this country's poor people? The short answer, I believe, is, it depends. It will depend, in 2020, just as it depends now, on what we mean by the Constitution we are expounding: the Constitution as read and interpreted by courts — the adjudicated Constitution — or what I propose to call the …