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Articles 1 - 12 of 12
Full-Text Articles in Constitutional Law
It's Not A Tax (Statutorily), But It Is A Tax (Constitutionally), Steve R. Johnson
It's Not A Tax (Statutorily), But It Is A Tax (Constitutionally), Steve R. Johnson
Scholarly Publications
No abstract provided.
Constitutional Cacophony: Federal Circuit Splits And The Fourth Amendment, Wayne A. Logan
Constitutional Cacophony: Federal Circuit Splits And The Fourth Amendment, Wayne A. Logan
Scholarly Publications
Despite their many differences, Americans have long been bound by a shared sense of constitutional commonality. Federal constitutional rights, however, can and do often vary based on geographic location, and a chief source of this variation stems from an unexpected origin: the nation's federal circuit courts of appeals. While a rich literature exists on federal circuit splits in general, this Article provides the first empirical study of federal constitutional law circuit splits. Focusing on Fourth Amendment doctrine in particular, the Article highlights the existence of over three dozen current circuit splits, which result in the unequal allocation of liberty and …
Policing Identity, Wayne A. Logan
Policing Identity, Wayne A. Logan
Scholarly Publications
Identity has long played a critical role in policing. Learning “who” an individual is not only affords police knowledge of possible criminal history, but also of “what” an individual might have done. To date, however, these matters have eluded sustained scholarly attention, a deficit that has assumed ever greater significance as government databases have become more comprehensive and powerful. Identity evidence, in short, has and continues to suffer from an identity crisis, which this Article seeks to remedy. The Article does so by first surveying the methods historically used by police to identify individuals, from nineteenth-century efforts to measure bodies …
The Importance Of Constitution-Making, David Landau
The Importance Of Constitution-Making, David Landau
Scholarly Publications
In this short invited contribution, I argue that scholars and policy-makers need to shift focus from the moment at which the break with the old regime occurs towards the moment at which new constitutional orders are constructed. The constitution-making process in countries like Tunisia, Egypt, and Libya, for example, is likely to determine in large measure what these new regimes are likely to look like. In particular, I draw off of a case study of the 2009 military coup in Honduras, which was provoked by ex-President Zelaya’s attempt to call a constituent assembly, to make two points. First, both constitutional …
Brady, Trust, And Error, Samuel R. Wiseman
Brady, Trust, And Error, Samuel R. Wiseman
Scholarly Publications
No abstract provided.
Implications Of Libel Doctrine For Nondefamatory Falsehoods Under The First Amendement, Nat Stern
Implications Of Libel Doctrine For Nondefamatory Falsehoods Under The First Amendement, Nat Stern
Scholarly Publications
No abstract provided.
Obamacare And The 'What Is A Tax?' Issue – Part Ii, Steve R. Johnson
Obamacare And The 'What Is A Tax?' Issue – Part Ii, Steve R. Johnson
Scholarly Publications
We are engaged in a two-part exploration. The previous installment of our column reviewed the perennial question of whether a given state or local exaction should be classified as a tax or something else. It rehearsed the contexts in which the issue has arisen in state and local tax controversies, the practical stakes involved in those controversies, and the criteria courts have developed to distinguish between truces and other types of governmental levies.
The previous installment also said that a new source of guidance as to the “what constitutes a tax?” question is developing: litigation over the individual mandate and …
Obamacare And The 'What Is A Tax?' Issue – Part I, Steve R. Johnson
Obamacare And The 'What Is A Tax?' Issue – Part I, Steve R. Johnson
Scholarly Publications
One of the hardiest perennials in the garden of state and local tax issues is the question whether particular revenue measures should be classified as taxes or some other type of exaction. The issue has been dispositive in numerous state and local tax cases and, befitting that significance, has been the topic of many reports in this journal.
Given the frequency of the decisions and commentary, authorities cited on the issue constantly evolve. State courts, omnivorous in their search for precedents and rationales, often cite federal cases. Recognizing this, a recent article in State Tax Notes examined decisions of the …
The Terms Of The Debate: Litigation, Argumentative Strategies, And Coalitions In The Same-Sex Marriage Struggle, Mary Ziegler
The Terms Of The Debate: Litigation, Argumentative Strategies, And Coalitions In The Same-Sex Marriage Struggle, Mary Ziegler
Scholarly Publications
Why, in the face of ongoing criticism, do advocates of same-sex marriage continue to pursue litigation? Recently, Perry v. Schwarzenegger, a challenge to California’s ban on same-sex marriage, and Gill v. Office of Personnel Management, a lawsuit challenging section three of the federal Defense of Marriage Act, have created divisive debate. Leading scholarship and commentary on the litigation of decisions like Perry and Gill have been strongly critical, predicting that it will produce a backlash that will undermine the same-sex marriage cause.
These studies all rely on a particular historical account of past same-sex marriage decisions and their …
The Reality Of Social Rights Enforcement, David Landau
The Reality Of Social Rights Enforcement, David Landau
Scholarly Publications
Despite the lack of socio-economic rights in the U.S. Constitution and the absence of political will to enforce them, the vast majority of constitutions around the world now include these rights, and courts are enforcing them in increasingly aggressive and creative ways. Scholars have produced a large and theoretically rich literature on the topic. Virtually all of this literature assumes that social rights enforcement is about the advancement of impoverished, marginalized groups. Moreover, the consensus recommendation of that literature, according to scholars like Cass Sunstein and Mark Tushnet, is that courts can enforce socio-economic rights hut should do so in …
Sexing Harris: The Law And Politics Of Defunding Planned Parenthood, Mary Ziegler
Sexing Harris: The Law And Politics Of Defunding Planned Parenthood, Mary Ziegler
Scholarly Publications
The movement to defund Planned Parenthood has opened a new front in the abortion wars. At the state and national level, anti-abortion organizations have campaigned successfully for new legal limitations on Medicaid or Title X reimbursement for Planned Parenthood. Significantly, legal restrictions reach not only abortion but also other services like contraception and cancer screenings. North Carolina, Wisconsin, and Indiana are among the states to have introduced such bans, and the U.S. House of Representatives approved one before the proposal died in the Senate in April 2011.
At first, the novelty of the movement seems to lie in its open …
Regulating At The Margins: Non-Traditional Kinship And The Legal Regulation Of Intimate And Family Life, Courtney Megan Cahill
Regulating At The Margins: Non-Traditional Kinship And The Legal Regulation Of Intimate And Family Life, Courtney Megan Cahill
Scholarly Publications
This Article offers a new theory of how the law attempts to control intimate and family life and uses that theory to argue why certain laws might be unconstitutional. Specifically, it contends that by regulating non-traditional relationships and practices that receive little or no constitutional protection— same-sex relationships, domestic partnerships, de facto parenthood, and nonsexual procreation—the law is able to express its normative ideals about all marriage, parenthood, and procreation. By regulating non-traditional kinship, then, the law can be aspirational in a way that the Constitution would ordinarily prohibit and can attempt to channel all of us in ways that …