Constitutional Law Commons^™

The Case For The Legislative Override, Nicholas Stephanopoulos

ExpressO

What is the optimal arrangement of judicial review? Most scholars who have addressed this question have assumed that there are only two important alternatives: judicial supremacy and parliamentary sovereignty. The literature has neglected the conceptual space that exists between these two poles, in particular the innovative legislative override model. This Article describes and evaluates the experiences of the two countries that have adopted the override, Canada and Israel. It also introduces a refined override model that promises to protect fundamental rights while promoting democratic decision-making. Finally, the Article explains which institutional and political contexts are hospitable to the override and …

Substantive Due Process As A Source Of Constitutional Protection For Nonpolitical Speech, Gregory P. Magarian

ExpressO

Present First Amendment doctrine presumptively protects anything within the descriptive category “expression” from government regulation, subject to balancing against countervailing government interests. As government actions during the present war on terrorism have made all too clear, that doctrine allows intolerable suppression of political debate and dissent – the expressive activity most integral to our constitutional design. At the same time, present doctrine fails to give a clear account of why the Constitution protects expressive autonomy and when that protection properly should yield to government interests, leading to an inconsistent and unsatisfying free speech regime. In this article, Professor Magarian advocates …

Overcoming Poletown: County Of Wayne V. Hathcock, Economic Development Takings, And The Future Of Public Use, Ilya Somin

George Mason University School of Law Working Papers Series

County of Wayne v. Hathcock is an important step forward in public use takings law. The Michigan Supreme Court was right to overturn its notorious 1981 Poletown decision and forbid condemnations that transfer property to private parties solely on the grounds that the new owners will contribute to “economic development.” Poletown was the best known and most widely criticized decision justifying a nearly unlimited condemnation power.

As the Poletown case dramatically demonstrates, the economic development rationale is a virtual blank check for eminent domain abuse for the benefit of private parties. Poletown upheld a condemnation as a result of which …

A Brief History Of The Fifth Amendment Guarantee Against Double Jeopardy, David S. Rudstein

All Faculty Scholarship

No abstract provided.

Belton Redux: Re-Evaluating Belton's Per Se Rule Governing The Search Of An Automobile Incident To An Arrest, David S. Rudstein

All Faculty Scholarship

No abstract provided.

The Surprisingly Strong Case For Tailoring Constitutional Principles, Mark D. Rosen

All Faculty Scholarship

Many constitutional principles apply to more than one level of government. This is true not only of Bill of Rights guarantees that have been incorporated against the States, but of many constitutional principles whose source lies outside of the Bill of Rights. The conventional wisdom is that such multi-level constitutional principles apply identically to all levels of government. The Article's thesis is that this One-Size-Fits-All approach is problematic because the different levels of government - federal, state, and local - sometimes are sufficiently different that a given constitutional principle may apply differently to each level. This Article critically examines an …

Making Federalism Doctrine: Fidelity, Institutional Competence, And Compensating Adjustments, Ernest A. Young

William & Mary Law Review

No abstract provided.

Judicial Confirmation Wars: Ideology And The Battle For The Federal Courts, Sheldon Goldman

University of Richmond Law Review

No abstract provided.

Bork Was The Beginning: Constitutional Moralism And The Politics Of Federal Judicial Selection, Gary L. Mcdowell

University of Richmond Law Review

No abstract provided.

The Judicial Nominations Wars, William P. Marshall

University of Richmond Law Review

No abstract provided.

Observations On The Status And Impact Of The Judicial Confirmation Process, Edith H. Jones

University of Richmond Law Review

No abstract provided.

Judicial Selection As . . . Talk Radio, Michael J. Gerhardt

University of Richmond Law Review

No abstract provided.

The Rhetorics Of Takings Cases: It's Mine V. Let's Share, Susan Ayres

Nevada Law Journal

No abstract provided.

The Innocence Protection Act Of 2004: A Small Step Forward And A Framework For Larger Reforms, Ronald Weich

All Faculty Scholarship

Passage of the Innocence Protection Act in the closing days of the 108th Congress was a watershed moment. To be sure, the bill that finally became law was a shadow of the more ambitious criminal justice reforms first championed five years earlier by Senator Pat Leahy, Congressman Bill Delahunt and others. But the enactment of legislation designed to strengthen — not weaken — procedural protections for death row inmates was rich in symbolic importance and promise.

Writing in the April 2001 issue of THE CHAMPION (Innocence Protection Act: Death Penalty Reform on the Horizon), I said optimistically: "The criminal justice …

Judicial Review Without Judicial Supremacy: Taking The Constitution Seriously Outside The Courts, James E. Fleming

Faculty Scholarship

Larry Sager and Larry Kramer have written important books that, in quite different ways, call for taking the Constitution seriously outside the courts. Sager's Justice in Plainclothes' and Kramer's The People Themselves2 nonetheless join issue in significant ways, and therefore it is illuminating to analyze them as a pair.

To get a handle on the differences between the two Larrys' books, I have concocted the following fanciful hypothetical. Imagine a law school with a faculty that includes Ronald Dworkin: court-centered constitutional theorist extraordinaire and proponent of a liberal moral reading of the American Constitution.3 Further imagine that the faculty includes …

A Positive Theory Of The War Powers Constitution, Jide O. Nzelibe

ExpressO

This Article explores the division of war-making authority between the President and Congress through the prism of positive political theory. For the most part, the scholarly treatment of the war-powers debate has been normative with various commentators offering various textual or functional accounts of what the proper allocation of war-making authority should be. This Article provides a positive account of the war-making powers by focusing on the domestic political constraints that the political branches face in the context of an imminent international crisis. This Article argues that the presidential decision to seek congressional authorization is determined by a two-level strategic …

Reclaiming The Public Forum: Courts Must Stand Firm Against Governmental Efforts To Displace Dissidence, Christopher B. Ford

ExpressO

Recognizing that the right to free speech for dissidents is increasingly at risk in the United States, this submission catalogs manifold methods the government has employed to constrain free speech and urges that courts not only serve as a bulwark against further erosion of public expression of dissent but endeavor to restore access to the public forum that recently has been lost. The submission surveys the background of the right to free expression and provides details and examples of the government’s increasing tendency to suppress dissident speech by deploying heavily armed police in demonstrations, committing violent acts against peaceful protesters, …

What Is A Tragedy Of The Commons? Overfishing And The Campaign Spending Problem, Shi-Ling Hsu

ExpressO

Over the thirty-seven years since its publication, Garden Hardin's "Tragedy of the Commons" has clearly become one of the most influential writings of all time. The tragedy of the commons is one of those rare scholarly ideas that has had an enormous impact in academia and is also commonly used outside of academia. In legal scholarship, the tragedy of the commons has been used to characterize a wide variety of resource problems, including intellectual property rights, overcrowding of telecommunications spectra, air and water pollution, and of course, the classic environmental commons problem, overfishing. But I suggest this embarrassment of citation …

Awakening An Empire Of Liberty: Exploring The Roots Of Socratic Inquiry And Political Nihilism In American Democracy, Maurice R. Dyson

ExpressO

This book review timely examines Cornel West’s latest sequel to his 1992 best seller, Race Matters. In Democracy Matters, West unflinchingly examines the waning of democratic energies and nihilistic practices of private and public sector in our present age of democracy. This review takes a critical examination of the logic underpinning West’s arguments, his nomenclature of various nihilism plaguing our society, the sometimes clumsy employment of literary devices and his thesis regarding the ‘niggerization’ of America after 9/11 that can serve as a basis for unifying collective action against imperialism. West makes a compelling argument that the public needs to …

Congressional Oversight Of Counterterrorism And Its Reform, Robert F. Blomquist

ExpressO

No abstract provided.

Court Reviews: The Takings Doctrine And Exactions, John R. Nolon, Jessica A. Bacher

Elisabeth Haub School of Law Faculty Publications

Exactions occur when applications to develop parcels of land require governmental permission, and that permission is conditioned upon dedicating part of the land to public use. Exactions have long been challenged as regulatory takings, and both federal and state courts look at these types of regulations with a heightened level of scrutiny due to the nature of exactions to remove a crucial element from the bundle of property rights associated with ownership of real property: the right to exclude. This column discusses a recent example of exactions jurisprudence applied in New York and goes on to compare that decision in …

Does Obscenity Cause Moral Harm?, Andrew Koppelman

Public Law and Legal Theory Papers

This essay will reconsider the fundamentals of obscenity law: the harm that the law addresses and the means by which the law tries to prevent that harm. Strangely, even though an enormous amount of scholarship examines this doctrine, these fundamentals have not been adequately addressed. The harm that the doctrine seeks to prevent is not offense to unwilling viewers. It is not incitement to violence against women. It is not promotion of sexism. Rather, it is moral harm - a concept that modern scholarship finds hard to grasp. Liberals have not even understood the concept of moral harm, and so …

Interstate Recognition Of Same-Sex Marriages And Civil Unions: A Handbook For Judges, Andrew Koppelman

Public Law and Legal Theory Papers

Same-sex marriage is here. Massachusetts now recognizes such marriages, and increasing numbers of same-sex couples have married. Other states have virtually the same status: Vermont recognizes "civil unions," and California recognizes "domestic partnerships," that have virtually all the rights of marriage. Are these statuses exportable? Will same-sex unions be recognized in other states? The answer should not be mysterious. There is a well developed body of law on the question of whether and when to recognize extraterritorial marriages that are contrary to the forum's public policy. Assuming that courts decide to follow that law, the answer is, it depends. This …

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, 88 Minn. Law Rev. 1233, Suzanne B. Goldberg

ExpressO

Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas looks in depth at the dissonance between the Supreme Court’s rhetorical support for morals-based lawmaking and the Court’s jurisprudence. In taking this approach, the article responds to a central post-Lawrence question regarding the sufficiency of a government’s moral agenda as a justification for restricting individual rights. It turns out, on close review of the cases going back to the mid-1800s, that the Court has almost never relied explicitly on a morals rationale to sustain an allegedly rights-infringing government action.

The article develops several explanations for this avoidance of explicit morals …

Cool Federalism And The Life-Cycle Of Moral Progress, Lawrence G. Sager

William & Mary Law Review

No abstract provided.

Dual Constitutions And Constitutional Duels: Separation Of Powers And State Implementation Of Federally Inspired Regulatory Programs And Standards, Jim Rossi

William & Mary Law Review

Frequently, state-wide executive agencies and localities attempt to implement federally inspired programs. Two predominant examples are cooperative federalism programs and incorporation of federal standards in state-specific law. Federally inspired programs can bump into state constitutional restrictions on the allocation of powers, especially in states whose constitutional systems embrace stronger prohibitions on legislative delegation than the weak restrictions at the federal level, where national goals and standards are made.

This Article addresses this tension between dual federal/state normative accounts of the constitutional allocation of powers in state implementation of federally inspired programs. To the extent the predominant ways of resolving the …

Foreword: The New Frontier Of State Constitutional Law, James A. Gardner, Jim Rossi

William & Mary Law Review

No abstract provided.

Interjurisdictional Enforcement Of Rights In A Post-Erie World, Robert A. Schapiro

William & Mary Law Review

No abstract provided.

In A Federal Case, Is The State Constitution Something Important Or Just Another Piece Of Paper?, Randall T. Shepard

William & Mary Law Review

No abstract provided.

Racial Free-Riding On The Coattails Of A Dream Deferred: Can I Borrow Your Social Capital?, Maurice R. Dyson

William & Mary Bill of Rights Journal

No abstract provided.