Constitutional Law Commons^™

Fault Lines: An Empirical Legal Study Of California Secession, Bill Tomlinson, Andrew W. Torrance

Seattle Journal of Technology, Environmental & Innovation Law

Over the last decade, multiple initiatives have proposed that California should secede from the United States. This article examines the legal aspects of California secession and integrates that analysis with findings from an empirical study of public perceptions of such secession. There is no provision in the United States Constitution allowing states, or other political or geographical units, to secede unilaterally. The Civil War was fought to uphold this principle, and the United States Supreme Court confirmed it in its 1869 Texas v. White decision. Nevertheless, numerous instances of secession, both legal and extralegal, have occurred across human history, and …

Form And Substance In Singapore Constitutional And Administrative Law, Kenny Chng

Research Collection Yong Pung How School Of Law

This paper proposes to study constitutional and administrative law in Singapore through the lenses of Atiyah’s and Summers’ concepts of form and substance in order to discern fruitful avenues for the development of Singapore constitutional and administrative law. While the concepts of form and substance in the context of constitutional law are often associated with constitutional interpretation, they can also be fruitfully applied to other areas of constitutional and administrative law to shed light on the potential trajectories of Singapore law. The intent of this paper is to apply Atiyah’s and Summers’ concepts of form and substance to Singapore constitutional …

Law School News: 'Law Isn't A Foreign Language Anymore' 11/24/2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Public Protector V South African Reserve Bank 2019 (6) Sa 253 (Cc), Dunia P. Zongwe

SAIPAR Case Review

No abstract provided.

Mutembo Nchito V Attorney General 2016/Cc/0029 (27 October 2020), O'Brien Kaaba, Pamela Towela Sambo

SAIPAR Case Review

No abstract provided.

Itula And Others V Minister Of Urban And Rural Development And Others 2020 (1) Nr 86 (Sc), Dunia P. Zongwe

SAIPAR Case Review

At the heart of this electoral case lies deep questions about what it means exactly to ‘know’ something and about a few steps that judges should avoid when reasoning from unknowns. In short, the court refused to cancel a presidential election because those who challenged that election in court failed to prove that the absence of verifiable paper trail changed the outcome of the election. If a judge lacks evidence of any claim put forth by the parties, they cannot lean on the absence of evidence to arrive at any conclusion, except to conclude that they do not know whether …

Policing In A Democratic Constitution, Michael Wasco

Indiana Journal of Constitutional Design

Most constitutions contain provisions relating to or impacting policing. Separate from the armed forces and intelligence services, the police are the state’s internal security apparatus, and codifying issues related to policing within a constitution can ensure efficient service delivery and human rights protections.

Originating from the Libyan constitution making process, this paper provides a taxonomy of options for constitution drafters and scholars. More so than other issues, such as separation of powers or human rights protections generally, policing sections are very country specific. While not advocating for specific best practices, the work gives ample justifications for certain policing principles and …

The First Amendment And The Right(S) Of Publicity, Jennifer E. Rothman, Robert C. Post

All Faculty Scholarship

The right of publicity protects persons against unauthorized uses of their identity, most typically their names, images, or voices. The right is in obvious tension with freedom of speech. Yet courts seeking to reconcile the right with the First Amendment have to date produced only a notoriously confused muddle of inconsistent constitutional doctrine. In this Article, we suggest a way out of the maze. We propose a relatively straightforward framework for analyzing how the right of publicity should be squared with First Amendment principles.

At the root of contemporary constitutional confusion lies a failure to articulate the precise state interests …

Law Library Blog (October 2020): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

David Versus Godzilla: Bigger Stones, Jerry Ellig, Richard Williams

Dickinson Law Review (2017-Present)

For four decades, U.S. Presidents have issued executive orders requiring agencies to conduct comprehensive regulatory impact analysis (RIA) for significant regulations to ensure that regulatory decisions solve social problems in a cost-beneficial manner. Yet experience demonstrates that agency RIAs often fail to live up to the standards enunciated in executive orders and Office of Management and Budget (OMB) guidance. The Office of Information and Regulatory Affairs (OIRA) oversees agency compliance with the executive orders, but OIRA is about half the size it was when it was established in 1980. Regulatory agency staff outnumber OIRA staff by a ratio of 3600 …

Clark Memorandum: Fall 2020, J. Reuben Clark Law School, Byu Law School Alumni Association, J. Reuben Clark Law Society

The Clark Memorandum

• A Feast of Fat Things
• And When He Came to Himself
• No Other Gods Before Me
• The Economics of Goodness

Read on Issuu

Book Review: A Citizen’S Guide To Impeachment, By Barbara Radnofsky, Wendy M. Rohleder-Sook

eJournal of Public Affairs

No abstract provided.

Constitutional Literacy In Times Of Crisis, Maartje De Visser

Research Collection Yong Pung How School Of Law

At the same time she announced her withdrawal from public life in 2018, former US Supreme Court Justice Sandra Day O’Connor made a passionate plea for “all citizens to understand our Constitution and unique system of government, and participate actively in their communities.”441 The timing coincided with the halfway mark of Donald Trump’s term in presidency, a president who has very publicly declared his knowledge of the US Constitution, but whose understanding of it has regularly been called into question.442 At its foundation, the democratic legitimacy of a government arguably presupposes a working familiarity with the constitution qua social contract. …

Corpus Linguistics And Gun Control: Why Heller Is Wrong, Kyra Babcock Woods

BYU Law Review

No abstract provided.

Preventing Parkland: A Workable Fourth Amendment Standard For Searching Juveniles' Smartphones Amid School Threats In A Post-Parkland World, Andrew Mueller

William & Mary Bill of Rights Journal

On February 14, 2018, Nikolas Cruz, age nineteen, went to the Marjory Stoneman Douglas High School campus in Parkland, Florida, armed with an AR-15 rifle. He opened fire, killing seventeen students. His unspeakable actions culminated in an attack, which eclipsed the 1999 Columbine High School Massacre to become the deadliest school shooting at a high school in American history. In the immediate months following this still-recent tragedy, schools across the United States were flooded with “copycat” threats of violence. Terroristic threat charges levied against juveniles have likewise skyrocketed.

These recent events have resulted in new and burdensome pressures for schools …

Solvency As A Fundamental Constraint On Lolr Policy For Independent Central Banks: Principles, History, Law, Sir Paul M. W. Tucker

Journal of Financial Crises

This paper follows up earlier work advocating a principled modernization of doctrines for central bank lender-of-last-resort policies and operations. It argues for a new Fundamental Constraint on such authorities: namely, “the principle that central banks should not lend to firms that they know (or should know) to be fundamentally bust or broken.” Tucker supports this with commentary from various peers, a review of principles underlying bankruptcy law and resolution schemes, and by deconstructing other common counterarguments. Centrally, he argues that when central banks breach the Fundamental Constraint, they distribute resources to short-term creditors at the expense of longer-term creditors, …

Mccleary V. State And The Washington State Supreme Court's Retention Of Jurisdiction—A Success Story For Washington Public Schools?, Jessica R. Burns

Seattle University Law Review SUpra

No abstract provided.

America's Newest Boogeyman For Deviant Teen Behavior: Violent Video Games And The First Amendment, Joseph C. Alfe, Grant D. Talabay

Pace Intellectual Property, Sports & Entertainment Law Forum

Are violent video games harming America’s youth? Is it possible a series of interconnected circuit boards can influence children (or even adults) to become, themselves, violent? If so, how should our society-- and government-- respond?

To properly answer this last query, violent video games must be viewed through the lens of the First Amendment. Simply put: do games depicting grotesque acts of depravity so profound as to negatively influence the psyche warrant the full constitutional protections ordinarily guaranteed under the mantle of free speech and expression? Are these guarantees without limit? If not, how far may the government go in …

Bill 10, If Enacted, Will Install A Constitutional Dictatorship And Undermine Democracy In Zambia, Muna B. Ndulo

Southern African Journal of Policy and Development

Zambia has made several attempts to elaborate a democratic constitution that promotes good governance, inclusiveness, citizen participation, accountability, and the separation of powers between the three arms of government-parliament, the judiciary, and the executive. Success has been elusive largely because the processes used have been inappropriate for consensus building. The latest attempt, the Constitution Amendment Bill No. 10 of 2019, which came out of a ruling party dominated constitutional conference, is presently before parliament. The constitutional conference excluded key stake holders such as the main opposition party and civil society. The paper critically examines the contents of Bill 10 and …

Disappearing Act: Are Free Speech Rights Decreasing?, Michael Conklin

St. Mary's Law Journal

Abstract forthcoming.

The Guinea-Bissau Constitutional Reform Debate, Watson Aila Gomes

Dissertations, Theses, and Capstone Projects

The enactment of law is not to be confused with the rule of law, and simply having a constitution does not guarantee political order. In Guinea-Bissau there have been calls to write a new constitution, but whether that helps Guinea-Bissau become a more stable country is questionable. Currently, there is a gap in the research of social science, history and political science examining how the processes of instability have unfolded in Guinea-Bissau. Few studies attempt to examine the correlation between a country’s stability and its constitution. A paradoxical situation exists in many countries in Africa where the political system is …

Dangerous Exhibitions: Erotic Justice And Comparative Constitutional Law, Elena Cohen

Dissertations, Theses, and Capstone Projects

The beginning of the 21^st century is widely seen as a time of great progress for LGBTQ people. Gay marriage, gay sex, adoption by same sex couples, and gay people serving in militaries have all been legalized in many countries in the past two decades, often through the decisions of constitutional courts. However, these constitutional protections of sexuality have been found in limited contexts and applied to a limited class of people, such that many are still vulnerable to repression by governments and majoritarian politics. In order to resist this sexual oppression, I widen the focus from gay and …

Ascriptive Nationalism, Demagoguery, And The Modern Presidency: A Case Study In Constitutional Decay, Christopher J. Putney

Dissertations, Theses, and Capstone Projects

This study is an account of the modern presidency as a source––and under Donald Trump, an accelerant––of systemic problems in American politics. Against the prevailing scholarly view of the Trump presidency as an unqualified aberration, I argue that the signal features of his efforts at governance are actually the product of converging patterns of political and institutional order. Building on seminal (but previously disjointed) work on ascriptive Americanism and the rhetorical presidency, I show that Trump represents the political synthesis of America’s ascriptive tradition and a form of presidential leadership inaugurated more than a century ago by Woodrow Wilson. Moreover, …

Beat The Heat: Texas’S Need To Reduce Summer Temperatures In Offender Housing, Mary E. Adair

St. Mary's Law Journal

The Texas Department of Criminal Justice’s lack of air conditioning in offender housing areas is a violation of the Eighth Amendment and deprives offenders of humane living conditions. Unlike most Texans, offenders housed in the TDCJ are unable to adequately protect themselves from the higher, prolonged summer temperatures. Most Texas prisons do not provide air conditioning or other types of cooling systems in offender housing areas, so offenders are at the mercy of the elements with little protection against heat-related illnesses. Several jurisdictions, other than Texas, have recognized extreme temperatures in housing areas can lead to constitutional violations because the …

The Government Has Information Foia (For Ya): An Analysis Of Requesting Police Records In Collegedale, Tennessee And Athens, Georgia, Tierra Hayes

Senior Research Projects

The Freedom of Information Act first went into effect in 1967 and was intended to give the general public of the United States more access to information and documents held by government entities. Since enactment, this act has given specifically journalists a means of approach to request previously undisclosed or hard to access materials including, but not limited to, police reports, body camera footage, court filings, budgets, salaries, and other documents held by various government offices. While there are restrictions with considerations such as national security, this access can be seen on national, state, and, as assessed in this research, …

Minority Vetoes In Consociational Legislatures: Ultimately Weaponized?, Devin Haymond

Indiana Journal of Constitutional Design

In societies emerging from or at risk for conflict, dividing power among rival groups—called power-sharing—can be an appropriate arrangement to maintaining peace. But how can groups, who are often emerging from violent conflict, trust sharing a government with rival groups that were just recently shooting at them?

A potential solution is the minority veto, which is allows minority groups to block the government from harming those groups’ vital interests. But what sorts of change blocking mechanisms constitute a minority veto? Who gets the veto power, and when can they be used? Do minority vetoes function as effective incentives for ensuring …

Taxonomy Of Powers And Roles Of Upper Chambers In Bicameral Legislatures, Carolyn Griffith

Indiana Journal of Constitutional Design

Bicameral legislatures exist around the world, with power divisions to create checks and balances on the constitutional order as a whole. In the context of constitutional design, this presents a variety of options of roles and rights given to each chamber at each step in both the legislative process and beyond. Taken as a whole, this taxonomy demonstrates there are nearly an infinite number of possibilities for separating powers between upper and lower chambers in bicameral legislatures. Often, these decisions are guided by the history of the country. For each federal legislature that places powers or votes in one chamber, …

Models Of Pre-Promulgation Review Of Legislation, Rachel Myers

Indiana Journal of Constitutional Design

Pre-promulgation review seeks to harmonize legislation with the constitution by engaging in a dialogue among government institutions that seeks to prevent unconstitutional legislation from becoming law. Pre-promulgation review is an integral part of the lawmaking process, and this study seeks to unite scholarship on different methods of this review in a comparative survey to assist lawyers, policymakers, and scholars. A wide range of institutions may fulfill the function of reviewing proposed legislation for compliance with the constitution or other codes of national importance prior to their passage into law. Because of this diversity, scholarship on the topic of pre-promulgation review …

Youtube Is Unsafe For Children: Youtube's Safeguards And The Current Legal Framework Are Inadequate To Protect Children From Disturbing Content, Heather Wilson

Seattle Journal of Technology, Environmental & Innovation Law

For America’s children, the amount of screen time they consume has not changed much over the years. Children under eight have steadily spent about two hours a day in front of a screen, with those under age two averaging 42 minutes a day. Children from low-income families spend roughly an hour and forty minutes longer in front of a screen. According to the American Academy of Pediatrics, screen time should be limited to two hours a day for children ages two to five; whereas, for those youngest children—under two years—they recommend zero screen time.

While the average amount of screen …

The Use Of Digital Millenium Copyright Act To Stifle Speech Through Non-Copyright Related Takedowns, Miller Freeman

Seattle Journal of Technology, Environmental & Innovation Law

In 1998, Congress passed the Digital Millennium Copyright Act. This law provided new methods of protecting copyright in online media. These protections shift the normal judicial process that would stop the publication of infringing materials to private actors: the online platforms. As a result, online platforms receive notices of infringement and issue takedowns of allegedly copyrighted works without the judicial process which normally considers the purpose of the original notice of infringement. In at least one case, discussed in detail below, this has resulted in a notice and takedown against an individual for reasons not related to the purpose of …