Constitutional Law Commons^™

Dimensions Of Delegation, Cary Coglianese

All Faculty Scholarship

How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in dimensional …

American Legion V. American Humanist Association, Seth T. Bonilla

Public Land & Resources Law Review

The separation of church and state is a key element of American democracy, but its interpretation has been challenged as the country grows more diverse. In American Legion v. American Humanist Association, the Supreme Court adopted a new standard to analyze whether a religious symbol on public land maintained by public funding violated the Constitution’s Establishment Clause.

Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lydia L. Butler

Florida State University Law Review

No abstract provided.

Physical Presence Is In No Wayfair!: Addressing The Supreme Court’S Removal Of The Physical Presence Rule And The Need For Congressional Action, Claire Shook

Dickinson Law Review (2017-Present)

The Commerce Clause of Article I grants Congress the power to regulate commerce. In the past, an entity had to have a physical presence in a state for that state to impose taxes on the entity. Due to the changing landscape of online businesses, the U.S. Supreme Court decided in South Dakota v. Wayfair in June 2018 to remove the physical presence rule as it applied to the Commerce Clause analysis of state taxation. The Wayfair decision’s ramification is that states can now impose taxes on businesses conducting sales online without having any physical presence in those states. While the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Due Process Supreme Court Appellate Division Third Department

Touro Law Review

No abstract provided.

Due Process Supreme Court Appellate Division

Touro Law Review

No abstract provided.

Due Process People V. Scott (Decided June 5, 1996)

Touro Law Review

No abstract provided.

Due Process Court Of Appeals

Touro Law Review

No abstract provided.

Supreme Court Queens County

Touro Law Review

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

Double Jeopardy Supreme Court Appellate Division Second Department

Touro Law Review

No abstract provided.

Forging Taiwan’S Legal Identity, Margaret K. Lewis

Brooklyn Journal of International Law

The legal system in Taiwan is undergoing a transformation. Over a hundred years since the founding of the Republic of China and over thirty years since the end of martial law on Taiwan, a new legal identity is being forged. Public criticism of “dinosaur” judges and esoteric debates among law-trained elites have galvanized efforts to create a more inclusive discussion surrounding legal reforms. Taiwan is facing the challenge of moving from dinosaurs to dynamism. This Article argues that transparency, clarity, and participation both are animating principles of the current reform debate and are beginning to emerge as characteristics of Taiwan’s …

Grinding Down The Edges Of The Free Expression Right In Hong Kong, Stuart Hargreaves

Brooklyn Journal of International Law

In the liberal-democratic tradition limits on speech must be clear, precise, and subject to justification within the particular constitutional framework of a given jurisdiction. In the Hong Kong Special Administrative Region (HKSAR), the Court of Final Appeal has developed a line of jurisprudence that explains under which circumstances the Government of Hong Kong (Government) may seek to limit the free speech provisions contained within the Basic Law, Hong Kong's quasi-constitution. In its fight against ‘localists,’ however, rather than legislating a clear speech restriction that is consistent with this jurisprudence, the Government has instead attempted to suppress unwelcome political speech in …

Restoring Effective Congressional Oversight: Reform Proposals For The Enforcement Of Congressional Subpoenas, Kia Rahnama

Journal of Legislation

This Article proposes possible legislative reforms to Congress’s exercise of its contempt power in combating non-compliance with subpoenas duly issued as part of congressional investigations. With the recent trends in leveraging congressional investigations as an effective tool of separation of powers, this Article seeks to explore the exact bounds of congressional power in responding to executive officers’ noncompliance with congressional subpoenas, and whether or not current practice could be expanded beyond what has historically been tried by the legislative branch. This Article provides a brief summary of the historic practice behind different options for responding to non-compliance with subpoenas (inherent …

Defining Fishing, The Slippery Seaweed Slope, Ross V. Acadian Seaplants Ltd., Rebecca P. Totten

Ocean and Coastal Law Journal

In Maine, the intertidal zone has seen many disputes over its use, access, and property rights. Recently, in Ross v. Acadian Seaplants, Ltd., the Maine Supreme Judicial Court, sitting as the Law Court, held that rockweed seaweed in the intertidal zone is owned by the upland landowner and is not part of a public easement under the public trust doctrine. The Court held harvesting rockweed is not fishing. This case will impact private and public rights and also the balance between the State's environmental and economic interests. This Comment addresses the following points: first, the characteristics of rockweed and the …

Our Administered Constitution: Administrative Constitutionalism From The Founding To The Present, Sophia Z. Lee

All Faculty Scholarship

This article argues that administrative agencies have been primary interpreters and implementers of the federal Constitution throughout the history of the United States, although the scale and scope of this "administrative constitutionalism" has changed significantly over time as the balance of opportunities and constraints has shifted. Courts have nonetheless cast an increasingly long shadow over the administered Constitution. In part, this is because of the well-known expansion of judicial review in the 20th century. But the shift has as much to do with changes in the legal profession, legal theory, and lawyers’ roles in agency administration. The result is that …

The President, Foreign Policy, And War Powers: A Survey On The Expansion And Setbacks Of Presidential Power, Michael W. Wilt

Channels: Where Disciplines Meet

How powerful is the President of the United States in the arena of foreign policy? This question has opened many discussions, and hotly contested debates as to the extent of the president’s actual power. To make matters more complicated, the United States’ foreign policy has developed and evolved over the course of the United States’ more than two-hundred years history. These foreign policy concerns and international conflicts have mired the presidency into debates and consistent trials over the constitutional extent of the presidency, specifically concerning presidential war powers. Moreover, the Presidents have varied in their approaches to each of these …

Lest Law Forget: Locke's Toleration And Religious Freedom, Stephen Holt

LLM Theses

The Canadian Charter of Rights and Freedoms guarantees every person in Canada freedom of conscience and religion. I contend that the concept of religious freedom was born out of a history of religious suffering and originally took the form of John Locke’s toleration of religious differences. In Big M, the first Supreme Court of Canada case that interpreted s. 2(a), Chief Justice Dickson recognized the historical context of religious freedom but also tied it to human autonomy, equality, and dignity. An examination of the cases since Big M suggests that when courts think in terms of tolerance, they accord greater …

Neglecting Nationalism, Gil Seinfeld

Articles

Federalism is a system of government that calls for the division of power between a central authority and member states. It is designed to secure benefits that flow from centralization and from devolution, as well as benefits that accrue from a simultaneous commitment to both. A student of modern American federalism, however, might have a very different impression, for significant swaths of the case law and scholarly commentary on the subject neglect the centralizing, nationalist side of the federal balance. This claim may come as a surprise, since it is obviously the case that our national government has become immensely …

Racial Indirection, Yuvraj Joshi

Yuvraj Joshi

Report On The Investigation Into Russian Interference In The 2016 Presidential Election, Volumes I And Ii (Redacted Version Of April 18, 2019), Robert S. Mueller Iii

United States Department of Justice: Publications and Materials

EXECUTIVE SUMMARY TO VOLUME I

RUSSIAN SOCIAL MEDIA CAMPAIGN

The Internet Research Agency (IRA) carried out the earliest Russian interference operations identified by the investigation–a social media campaign designed to provoke and amplify political and social discord in the United States. The IRA was based in St. Petersburg, Russia, and received funding from Russian oligarch Yevgeniy Prigozhin and companies he controlled. Priozhin is widely reported to have ties to Russian President Vladimir Putin [redacted]

In mid-2014, the IRA sent employees to the United States on an intelligence-gathering mission with instructions [redacted]

The IRA later used social media accounts and interest …

Occupational Licensing And The Limits Of Public Choice Theory, Gabriel Scheffler, Ryan Nunn

All Faculty Scholarship

Public choice theory has long been the dominant lens through which economists and other scholars have viewed occupational licensing. According to the public choice account, practitioners favor licensing because they want to reduce competition and drive up their own wages. This essay argues that the public choice account has been overstated, and that it ironically has served to distract from some of the most important harms of licensing, as well as from potential solutions. We emphasize three specific drawbacks of this account. First, it is more dismissive of legitimate threats to public health and safety than the research warrants. Second, …

Breaking The Equilibrium: From Distrust Of Representative Government To An Authoritarian Executive, Gábor Attila Tóth

Washington International Law Journal

Although contemporary populist authoritarians have not entirely abandoned the aims and methods of their ancestors, authoritarianism has been undergoing a reinvention in recent years. Behind a façade of constitutionalism, new authoritarianism claims to abide by democratic principles. Populist authoritarians legitimize themselves through popular elections and maintain the entire set of formal institutions associated with constitutional democracy, using them as both an appearance of representation and a tool of authoritarian imposition. The article focuses on the concepts of trust and distrust of representative government to afford a better understanding of populist authoritarianism. The paper describes two rival theoretical conceptions of government, …

The Resurgence Of Executive Primacy In The Age Of Populism: Introduction To The Symposium, Peter Cane

Washington International Law Journal

The articles in this issue, devoted to legal and constitutional issues around executive primacy and populism, were first presented at an Advanced Workshop on the Resurgence of Executive Primacy in the Age of Populism, organised by Professor Cheng-Yi Huang and held at the Institutum Jurisprudentiae of the Academica Sinica in Taipei, Taiwan on June 21 and 22, 2018. Scholarly interest in populism has grown over the past thirty years to the point where it could recently be the subject of The Oxford Handbook of Populism, published late in 2017. According to the editors of that volume, the bulk of …

Executive Primacy, Populism, And Public Law, Peter Cane

Washington International Law Journal

As the articles in this Symposium suggest, populism and authoritarianism present ongoing challenges not only to liberal democracy but also to its legal underpinnings. Manipulation, avoidance, evasion, and outright rejection of the constitutional and legal frameworks of liberal democracy are features of populist authoritarianism. The basic argument of this article is that liberal-democratic public law and legal theory no longer satisfy human needs and desires because they were conceived in worlds that no longer exist, when the main pre-occupation was to secure liberty, not equality. The aim of the article is to explain the inherited structure of our public law …

Remarks On Prosecutorial Discretion And Immigration, Shoba S. Wadhia

Dickinson Law Review (2017-Present)

No abstract provided.

Public Interest Litigation & Women’S Rights: Cases From Nepal & India, Jordan E. Stevenson

2019 Symposium

As a complex, diverse and dynamic region with diverging, constantly changing constitutional and jurisprudential contexts as well as lasting legacies of patriarchy, South Asia’s traditions of public interest litigation are one of the most well-studied institutions by Western audiences due to their contradictory progressive and innovative nature. Particularly in India, where public interest litigation gives ordinary citizens extraordinary access to the highest courts of justice, questions have been raised as to the effectiveness of public interest litigation as a tool to address gender disparities across the region. Although Supreme Court justices have been a key ally in eliminating legal barriers …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Going "Clear", Ryan D. Doerfler

All Faculty Scholarship

This Article proposes a new framework for evaluating doctrines that assign significance to whether a statutory text is “clear.” As previous scholarship has failed to recognize, such doctrines come in two distinct types. The first, which this Article call evidence-management doctrines, instruct a court to “start with the text,” and to proceed to other sources of statutory meaning only if absolutely necessary. Because they structure a court’s search for what a statute means, the question with each of these doctrines is whether adhering to it aids or impairs that search — the character of the evaluation is, in other words, …