Open Access. Powered by Scholars. Published by Universities.®

Judges Commons

Open Access. Powered by Scholars. Published by Universities.®

Constitutional Law

PDF

Selected Works

2013

Public Law and Legal Theory

Articles 1 - 5 of 5

Full-Text Articles in Judges

Three-Dimensional Sovereign Immunity, Sarah L. Brinton Mar 2013

Three-Dimensional Sovereign Immunity, Sarah L. Brinton

Sarah L Brinton

The Supreme Court has erred on sovereign immunity. The current federal immunity doctrine wrongly gives Congress the exclusive authority to waive immunity (“exclusive congressional waiver”), but the Constitution mandates that Congress share the waiver power with the Court. This Article develops the doctrine of a two-way shared waiver and then explores a third possibility: the sharing of the immunity waiver power among all three branches of government.


The United States Constitution And Its History Through The Barristers And Political, Allen E. Shoenberger Mar 2013

The United States Constitution And Its History Through The Barristers And Political, Allen E. Shoenberger

Allen E Shoenberger

No abstract provided.


Chief Justice Roberts' Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory Magarian Feb 2013

Chief Justice Roberts' Individual Mandate: The Lawless Medicine Of Nfib V. Sebelius, Gregory Magarian

Gregory P. Magarian

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate under the Taxing Clause. Numerous academic and popular commentators have lauded the Chief Justice for his political courage and institutional pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. The essay contends that the opinion is, in two distinct senses, fundamentally …


Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz Jan 2013

Neoliberalism And The Law: How Historical Materialism Can Illuminate Recent Governmental And Judicial Decision Making, Justin Schwartz

Justin Schwartz

Neoliberalism can be understood as the deregulation of the economy from political control by deliberate action or inaction of the state. As such it is both constituted by the law and deeply affects it. I show how the methods of historical materialism can illuminate this phenomenon in all three branches of the the U.S. government. Considering the example the global financial crisis of 2007-08 that began with the housing bubble developing from trade in unregulated and overvalued mortgage backed securities, I show how the repeal of the Glass-Steagall Act, which established a firewall between commercial and investment banking, allowed this …


Judicial Independence In Post-Conflict Iraq: Establishing The Rule Of Law In An Islamic Constitutional Democracy, David Pimentel, Brian Anderson Jan 2013

Judicial Independence In Post-Conflict Iraq: Establishing The Rule Of Law In An Islamic Constitutional Democracy, David Pimentel, Brian Anderson

David Pimentel

Contemporary Iraq is facing the full range of challenges that come with post-conflict transitional justice, including “paving the road toward peace and reconciliation” and establishing a functional state, characterized by the Rule of Law. Prospects for the establishment of an independent judiciary in Iraq are obstructed by a number of factors, including (1) how to apply the explicit recognition of the law of Islam in the Iraqi Constitution, (2) the inability to pass legislation on the Federal Courts of Iraq, leaving several provisions of the Iraqi Constitution unimplemented, and other critical elements of judicial independence unaddressed, including provisions for tenure, …