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Articles 1 - 30 of 45
Full-Text Articles in Jurisprudence
Is The First Amendment Entrenched? Rawls’ Curious Claim, Gordon D. Ballingrud
Is The First Amendment Entrenched? Rawls’ Curious Claim, Gordon D. Ballingrud
Gordon D Ballingrud
. This paper addresses a claim made by John Rawls in Lecture VI of Political Liberalism: any American constitutional amendment, ratified through Article V, which overturned the First Amendment would be illegitimate and justly ruled unconstitutional by the Supreme Court. Addressing the apparent contradiction that a duly enacted constitutional amendment can be unconstitutional, this paper reconstructs and critiques Rawls claim along two lines. First, I address Rawls’ philosophical claim as to the de facto entrenchment of the First Amendment, and the mechanisms that Rawls implicitly and explicitly purports to entrench it. I also address the claim that a First …
Scotus Short Title Turmoil: Time For A Congressional Bill Naming Authority, Brian Christopher Jones
Scotus Short Title Turmoil: Time For A Congressional Bill Naming Authority, Brian Christopher Jones
Brian Christopher Jones
This past summer saw the U.S. Supreme Court’s landmark decision in United States v. Windsor, and while the case has generated copious amounts of commentary and scholarship, relatively little attention has been paid to the case’s discussion of bill short titles. Central to the case’s analysis was a dispute over the role of short titles in inferring legislative purpose, and given this dispute, this Remark will argue that it’s time for a Congressional bill naming authority to ensure sensible, descriptive bill names.
The Kaffatan Constitution, Liaquat Ali Khan
The Kaffatan Constitution, Liaquat Ali Khan
Ali Khan
This Kaffatan Constitution is transformative energy guarding the peoples of the world, animals, and all life species that exist or may come to exist in the future. It transforms communities across the world, whether these communities are nation-states, provinces, cities, town, neighborhoods, or virtual communities, and turn them into Free States and Perfect Communities. Free State is Perfect Community and Perfect Community is Free State. The two are synonymous. Perfect Community is the radiance of Supreme Truth. Perfect Community evolves out of ordinary communities if, when, and while it seeks guidance from Supreme Truth. You are Perfect Community. You evolve …
The Commons, Capitalism, And The Constitution, George Skouras
The Commons, Capitalism, And The Constitution, George Skouras
George Skouras
Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.
New Paths For The Court: Protections Afforded Juveniles Under Miranda; Effective Assistance Of Counsel; And Habeas Corpus Decisions Of The Supreme Court’S 2010/2011 Term, Richard Klein
Richard Daniel Klein
No abstract provided.
Taxation Without Limitation: The Prohibited Pretext Doctrine V. The Sebelius Theory, Brett W. Hastings
Taxation Without Limitation: The Prohibited Pretext Doctrine V. The Sebelius Theory, Brett W. Hastings
Brett W Hastings
The Article posits that the Supreme Court erred in its ruling regarding the Affordable Care Act by overlooking a well established constitutional principle, dubbed the Prohibited Pretext Doctrine. This doctrine, which prohibits the exercise of a prohibited power through the pretextual use of a power granted, faded from memory due to the post Lochner era expansion of the Commerce Clause. Nevertheless, the doctrine remains valid law. In overlooking the Prohibited Pretext Doctrine, the Supreme Court established a new and contradictory doctrine, dubbed the Sebelius Theory. The Sebelius Theory turns the Prohibited Pretext Doctrine on its head by explicitly allowing the …
New Legal Challenge To Guantanamo Confinement, Robert Sanger
New Legal Challenge To Guantanamo Confinement, Robert Sanger
Robert M. Sanger
We will discuss in this article a new Petition for Writ of Habeas Corpus filed in the federal court relating to the non-release of detainees held at Guantanamo Bay notwithstanding the order of the Administration for their release. As of this writing, the President of the United States has issued orders releasing at least 40 detainees, including Ahmed Adnan Ajam who is the subject of the new Petition. Ironically, under the National Defense Authorization Act for the Fiscal Years 2011-20131 (“NDAA”), the President is restricted from releasing detainees under the NDAA which was enacted as a partisan rider to defense …
Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman
Overcoming Obstacles To Religious Exercise In K-12 Education, Lewis M. Wasserman
Lewis M. Wasserman
Overcoming Obstacles to Religious Exercise in K-12 Education Lewis M. Wasserman Abstract Judicial decisions rendered during the last half-century have overwhelmingly favored educational agencies over claims by parents for religious accommodations to public education requirements, no matter what constitutional or statutory rights were pressed at the tribunal, or when the conflict arose. These claim failures are especially striking in the wake of the Religious Freedom Restoration Acts (“RFRAs”) passed by Congress in 1993 and, to date, by eighteen state legislatures thereafter, since the RFRAs were intended to (1) insulate religious adherents from injuries inflicted by the United States Supreme Court’s …
Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman
Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman
Charles H. Baron
In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …
Activism, Attitudes, And The Citation Of Precedent In Supreme Court Opinions, Robert R. Robinson
Activism, Attitudes, And The Citation Of Precedent In Supreme Court Opinions, Robert R. Robinson
Robert R Robinson
Adherence to precedent provides a legitimizing function for judges. Recent scholarship supports this contention, demonstrating that Supreme Court justices are more likely to cite well-grounded precedent when their opinions face greater scrutiny. In this paper, I continue this line of research by examining whether citation practice varies along individual-level characteristics such as judicial ideology, a propensity for activism, judicial background, and judicial roles. I find that most individual-level factors have little or no impact on how justices ground their opinions in prior precedent, with the exception of judicial activism, which has a moderate negative impact on the centrality of the …
The Battle For The Soul Of International Shoe, Eric H. Schepard
The Battle For The Soul Of International Shoe, Eric H. Schepard
Eric H Schepard
In 2011, Justice Kennedy’s plurality opinion in J. McIntyre Machinery, Ltd. v. Nicastro repeatedly cited International Shoe v. Washington, a 1945 decision that transformed the law of personal jurisdiction. Kennedy believed that International Shoe broadly supported his position that a state may hear a suit arising from a within-state workplace injury to its citizen only if the foreign (out-of-state) corporate defendant specifically markets its products to that state. This article reexamines the jurisprudence of International Shoe’s author, Chief Justice Harlan Fiske Stone, to argue that Kennedy hijacked International Shoe’s half-buried legacy of judicial restraint. Scholars have suggested that Stone hoped …
The Conflict Between Stare Decisis And Ov Erruling In Constitutional Adjudication, Steven J. Burton
The Conflict Between Stare Decisis And Ov Erruling In Constitutional Adjudication, Steven J. Burton
steven J. burton
This article argues that the Constitution constrains the Supreme Court's power to overrule its constitutional precedents. It bases this argument on the Fifth Amendment's Due Process Clause and the conjunction of Marbury v. Madison, Martin v. Hunter's Lessee, Cohens v. Virginia, and the "case or controversy" limit on federal court jurisdiction.
Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill
Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill
Shlomo C. Pill
This paper considers the viability of autonomous-text constitutionalism, a constitutional interpretive and adjudicative theory based on Hans Georg-Gadamer’s philosophical hermeneutics. As the paper explains, this theory is premised on the subjectivity of all interpretive activity; it admits the legitimacy of a wide spectrum of reasonable interpretations of the Constitution, each given their unique character by the dialectical merging of experiential horizons between the fixed text and individual interpreter. This theory embraces a plurality of constitutional meanings in theory, limited by the need for unity in national spheres of constitutional practice. Such practical certainty is achieved by our empowering judicial institutions …
U.S. Judicial Independence: Victim In The “War On Terror”, Wayne Mccormack
U.S. Judicial Independence: Victim In The “War On Terror”, Wayne Mccormack
Wayne McCormack
One of the principal victims in the U.S. so-called "war on terror" has been the independence of the U.S. Judiciary. Time and again, challenges to assertedly illegal conduct on the part of government officials have been turned aside without addressing the merits, either because of overt deference to the Government or because of special doctrines such as state secrets and standing requirements. This paper catalogs the principal cases first by the nature of the government action challenged and then by the special doctrines invoked. The U.S. judiciary has virtually relinquished its valuable role of judicial review. In the face of …
Visual Gut Punch: Persuasion, Emotion, And The Constitutional Meaning Of Graphic Disclosure, Ellen P. Goodman
Visual Gut Punch: Persuasion, Emotion, And The Constitutional Meaning Of Graphic Disclosure, Ellen P. Goodman
ellen p. goodman
The ability of government to “nudge” with information mandates, or merely to inform consumers of risks, is circumscribed by First Amendment interests that have been poorly articulated in the relevant law and commentary. New graphic cigarette warning labels supplied courts with the first opportunity to assess the informational interests attending novel forms of product disclosures. The D.C. Circuit enjoined them as unconstitutional, compelled by a narrative that the graphic labels converted government from objective informer to ideological persuader, shouting its warning to manipulate consumer decisions. This interpretation will leave little room for graphic disclosure and is already being used to …
Daddy Warriors: The Battle To Equalize Paternity Leave In The United States By Breaking Gender Stereotypes; A Fourteenth Amendment Equal Protection Analysis, Abraham Z. Melamed
Daddy Warriors: The Battle To Equalize Paternity Leave In The United States By Breaking Gender Stereotypes; A Fourteenth Amendment Equal Protection Analysis, Abraham Z. Melamed
Abraham Z Melamed
No abstract provided.
The Conflict Between Stare Decisis And Overruling In Constitutional Adjudication, Steven J. Burton
The Conflict Between Stare Decisis And Overruling In Constitutional Adjudication, Steven J. Burton
steven J. burton
There is a near-consensus among Supreme Court Justices and constitutional scholars that there is no significant law, and need not be a law, constraining the Court's power to overrule its constitutional precedents. This Essay/Article argues, to the contrary, that the Court's overruling power should be constitutionally constrained for essentially the same reasons that virtually every other federal government power is constrained. It proposes and defends a constitutional law of overruling.
Addressing The Harm Of Total Surveillance: A Reply To Professor Neil Richards, Danielle Citron, David Gray
Addressing The Harm Of Total Surveillance: A Reply To Professor Neil Richards, Danielle Citron, David Gray
David C. Gray
In his insightful article The Dangers of Surveillance, 126 HARV. L. REV. 1934 (2013), Neil Richards offers a framework for evaluating the implications of government surveillance programs that is centered on protecting "intellectual privacy." Although we share his interest in recognizing and protecting privacy as a condition of personal and intellectual development, we worry in this essay that, as an organizing principle for policy, "intellectual privacy" is too narrow and politically fraught. Drawing on other work, we therefore recommend that judges, legislators, and executives focus instead on limiting the potential of surveillance technologies to effect programs of broad and indiscriminate …
The Issue Is Being Intersex: The Current Standard Of Care Is A Result Of Ignorance, And It Is Amazing What A Little Analysis Can Conclude., Marla J. Ferguson
The Issue Is Being Intersex: The Current Standard Of Care Is A Result Of Ignorance, And It Is Amazing What A Little Analysis Can Conclude., Marla J. Ferguson
marla j ferguson
The Constitution was written to protect and empower all citizens of the United States, including those who are born with Disorders of Sex Development. The medical community, as a whole, is not equipped with the knowledge required to adequately diagnose or treat intersex babies. Intersex simply means that the baby is born with both male and female genitalia. The current method that doctors follow is to choose a sex to assign the baby, and preform irreversible surgery on them without informed consent. Ultimately the intersex babies are mutilated and robbed of many of their fundamental rights; most notably, the right …
Constitutional Patriotism: A Reasonable Theory Of Radical Democracy?, Vito Breda
Constitutional Patriotism: A Reasonable Theory Of Radical Democracy?, Vito Breda
Vito Breda
Since its first appearance just over a decade ago, Habermas's constitutional patriotism has inspired a rich and articulate series of theoretical analyses and has indirectly encouraged constitutional projects such as the Constitution for Europe. The popularity of constitutional patriotism among political and constitutional theorists has, however, also generated some confusion over the aims and basic structure of Habermas's endeavour. For instance, it is unclear whether constitutional patriotism ought to be considered a constitutional or political theory. This paper seeks to clarify some of the misunderstandings surrounding constitutional patriotism. It will contend that the theory is, at its core, a political …
The Shield Of Rights, The Sword Of Disorder: Robert H. Jackson And Civil Liberties, George B. Crawford
The Shield Of Rights, The Sword Of Disorder: Robert H. Jackson And Civil Liberties, George B. Crawford
George B. Crawford
No abstract provided.
The Piranha Is As Deadly As The Shark: A Case For The Limitation On Deceptive Practices In Dna Collection, Brett A. Bauman
The Piranha Is As Deadly As The Shark: A Case For The Limitation On Deceptive Practices In Dna Collection, Brett A. Bauman
Brett A Bauman
Police deception tactics are utilized throughout the United States as a way to catch unsuspecting criminals. Although criticized in many respects, most deceptive police techniques are not only legal, but are actually encouraged. DNA collection and analysis is no exception—techniques are frequently used by law enforcement officers in an attempt to collect a suspect’s genetic specimen in the interest of solving crimes. While law enforcement officers typically have the best interests of society in mind, the current practices employed by officers to collect suspects’ DNA violate the Fourth Amendment. The Fourth Amendment provides protection against unreasonable searches and seizures, and …
Deadly Dicta: Roe’S “Unwanted Motherhood”, Gonzales’S “Women’S Regret” And The Shifting Narrative Of Abortion Jurisprudence, Stacy A. Scaldo
Deadly Dicta: Roe’S “Unwanted Motherhood”, Gonzales’S “Women’S Regret” And The Shifting Narrative Of Abortion Jurisprudence, Stacy A. Scaldo
Stacy A Scaldo
For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. From the initial finding that the right to an abortion stemmed from a constitutional right to privacy[1], through the test applied and refined to determine when that right was abridged[2], to the striking of statutes found to over-regulate that right[3], the conversation from the Court’s perspective maintained a singular focus. Pro-life arguments focusing on the fetus as the equal or greater party of interest were systematically pushed aside by the Court.[4] The consequences of an unwanted pregnancy, or as …
Three-Dimensional Sovereign Immunity, Sarah L. Brinton
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.
Deciding Who Decides: Searching For A Deference Standard When Agencies Preempt State Law, John R. Ablan
Deciding Who Decides: Searching For A Deference Standard When Agencies Preempt State Law, John R. Ablan
John R Ablan
When a federal agency determines that the statute that it administers or regulations it has promulgated preempt state law, how much deference must a federal court give to that determination? In Wyeth v. Levine, the Supreme Court expressly declined to decide what standard of deference courts should apply when an agency makes a preemption determination pursuant to a specific congressional delegation to do so. Under this circumstance, this Article counsels against applying any single deference standard to an agency’s entire determination. Instead, it observes that preemption determinations are a complex inquiry involving questions of federal law, state law, and …
Introduction To The Theory Of Law: History And The Unity Of Legal Things, John Lunstroth
Introduction To The Theory Of Law: History And The Unity Of Legal Things, John Lunstroth
John Lunstroth
I propose a general theory of the law. I begin with the history of the western legal tradition. When tracing laws, or legal things, over long periods of time it is apparent that the positivist theory is inadequate to describe law. Natural law similarly fails to explain what is seen in the historical record. I suggest an historicist theory best describes the law when seen as a conceptual and historical whole. I then identify a fundamental break in the historical record, the Enlightenment, when the scientific worldview became dominant. The scientific gaze splits nature (including law) into two parts, moral …
Presumed Imminence: Judicial Risk Assessment In The Post-9/11 World, Avidan Cover
Presumed Imminence: Judicial Risk Assessment In The Post-9/11 World, Avidan Cover
Avidan Cover
Court opinions in the terrorism context are often distinguished by fact finding that relates to risk assessment. These risk assessments‑inherently policy decisions‑are influenced by cultural cognition and by cognitive errors common to probability determinations, particularly those made regarding highly dangerous and emotional events. In a post-9/11 world, in which prevention and intelligence are prioritized over prosecution, courts are more likely to overstate the potential harm, neglect the probability, and presume the imminence of terrorist attacks. As a result courts apt to defer to the government and require less evidence in support of measures that curtail civil liberties. This Article takes …
Judicialization Of Socio-Economic Rights In Brazil: The Subversion Of An Egalitarian Discourse, Vanice L. Valle
Judicialization Of Socio-Economic Rights In Brazil: The Subversion Of An Egalitarian Discourse, Vanice L. Valle
Vanice L. Valle
This article describes the historical origins of the Brazilian constitutional frame of socio-economic rights, and the political context that lead to their enforcement through the Judiciary. Based in a particular constitutional text that asserts socioeconomic rights’ immediate enforceability, the present theoretical comprehension is that they establish the State’s obligation to provide goods and services. The consequence is an intense judicialization of rights such as health, education and housing, which results in a wide exercise of judicial activism in controlling public policies – with the Judiciary renouncing to the objective rational criteria consubstantiated in the law, and to an approach that …
Originalism And The Necessary And Proper Clause, John T. Valauri
Originalism And The Necessary And Proper Clause, John T. Valauri
John T. Valauri
This article analyzes a largely unacknowledged and, therefore, unsolved problem in constitutional theory and doctrine—the problem of multiplicity of meanings (i.e., encountering multiple conflicting meanings in practice when your doctrine or theory postulates just one). It does this by examining and comparing the debate over the meaning of the Necessary and Proper Clause in constitutional doctrine and the New Originalism’s notion of original public meaning in constitutional theory in order to help us get beyond the false and misleading assumptions underlying and motivating the myth of unitary meaning. It contrasts the role of the public and the express (as in …
On Reading And Using The Tenth Amendment, Kathryn Abrams
On Reading And Using The Tenth Amendment, Kathryn Abrams
Kathryn Abrams
No abstract provided.