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

Legal History Commons

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

PDF

2007

Constitutional Law

Institution
Keyword
Publication
Publication Type

Articles 1 - 30 of 53

Full-Text Articles in Legal History

The Rule Of Law, Democracy, And International Law - Learning From The Us Experience, Gianluigi Palombella Dec 2007

The Rule Of Law, Democracy, And International Law - Learning From The Us Experience, Gianluigi Palombella

Gianluigi Palombella

The general issue addressed in this paper is the relation between the rule of law as a matter of national law, and as a matter of international law. Different institutional conceptions of this relationship give rise to different attitudes towards international law. Nonetheless, questions arise that cast doubt on age-old tenets of certain Western countries concerning the radical separability between the rule of law within the domestic system and in the international realm. The article will start considering some recent developments in the United States' treatment of alien detainees. Then it shall address the relation between domestic constitutions and international ...


Princípios-Tópicos De Hermenêutica Constitucional, Paulo Ferreira Da Cunha Nov 2007

Princípios-Tópicos De Hermenêutica Constitucional, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Houve tempo em que a Constituição servia para poisar ou charuto ou tirar um argumento político, como ironicamente afirmaria o grande escritor oitocentista Eça de Queiroz. Hoje a Constituição é a norma das normas. Daí há consequências hermenêuticas. Ao contrário das teorias que importam interpretação tradicional e, por vezes, em grande medida ultrapassada, para o Direito Constitucional, a tendência actual é a inversa: dada a supremacia da Constituição, deve ser a metodologia constitucional a exportar hermenêutica para o todo do Direito. Para isso, começamos neste artigo com grandes princípios de hermenêutica intra-constitucional. Depois se passará à exportação.


Petitioner's Observations (December 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala Nov 2007

Petitioner's Observations (December 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.


Petitioner's Observations (December 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala Nov 2007

Petitioner's Observations (December 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala

Jeffrey C. Tuomala

No abstract provided.


Constitutional Law—Equal Protection & Due Process—Is The Arkansas Supreme Court Abandoning Judicial Federalism?, Alexander Justiss Oct 2007

Constitutional Law—Equal Protection & Due Process—Is The Arkansas Supreme Court Abandoning Judicial Federalism?, Alexander Justiss

University of Arkansas at Little Rock Law Review

This note examines the history of judicial federalism by discussing the history of its use, as well as the analytical models that have been produced by its various adoptive jurisdictions. The development of these models has given courts much authority in determining the scope of individual rights within their respective jurisdictions. Further, a discussion follows that explores the criticisms directed at the use of such authority.

This note also examines the Arkansas Supreme Court's adoption and use of judicial federalism as a necessary safeguard against governmental infringements on individual rights, particularly those involving the right to privacy. Although such ...


Rule Of Law Conference: Global Issues And The Rule Of Law, Lord Chief Justice Nicholas Phillips Of Worth Matravers Sep 2007

Rule Of Law Conference: Global Issues And The Rule Of Law, Lord Chief Justice Nicholas Phillips Of Worth Matravers

University of Richmond Law Review

No abstract provided.


Brief Of Legal Historians As Amici Curiae In Support Of Petitioners, Boumediene V. Bush, Nos. 06-1195, 06-1196 (U.S. Aug. 24, 2007), James Oldham Aug 2007

Brief Of Legal Historians As Amici Curiae In Support Of Petitioners, Boumediene V. Bush, Nos. 06-1195, 06-1196 (U.S. Aug. 24, 2007), James Oldham

U.S. Supreme Court Briefs

No abstract provided.


La Cesión De Derechos En El Código Civil Peruano, Edward Ivan Cueva Jul 2007

La Cesión De Derechos En El Código Civil Peruano, Edward Ivan Cueva

Edward Ivan Cueva

La Cesión de Derechos en el Código Civil Peruano


New Principles For Company Law, Kent Greenfield Jul 2007

New Principles For Company Law, Kent Greenfield

Boston College Law School Faculty Papers

No abstract provided.


New Principles For Company Law, Kent Greenfield Jun 2007

New Principles For Company Law, Kent Greenfield

Kent Greenfield

No abstract provided.


Algunos Apuntes En Torno A La Prescripción Extintiva Y La Caducidad, Edward Ivan Cueva May 2007

Algunos Apuntes En Torno A La Prescripción Extintiva Y La Caducidad, Edward Ivan Cueva

Edward Ivan Cueva

No abstract provided.


Why We Have Judicial Review, Mary Sarah Bilder Apr 2007

Why We Have Judicial Review, Mary Sarah Bilder

Boston College Law School Faculty Papers

This paper accompanies Mary Sarah Bilder, The Corporate Origins of Judicial Review , 116 Yale L.J. 502 (2006), in which the author argues that the origins of judicial review lie not in the expansion of judicial power but rather in the prior practice of commitment to limited legislative authority.


Harmonizing Plural Societies: The Cases Of Lasallians, Families, Schools – And The Poor, Patrick Mckinley Brennan Apr 2007

Harmonizing Plural Societies: The Cases Of Lasallians, Families, Schools – And The Poor, Patrick Mckinley Brennan

Working Paper Series

The modern state characteristically assumes or asserts a monopoly over “group persons” and their right to exist; group persons are said to exist at the pleasure or concession of the state. According to Catholic social teaching, by contrast, these unities of order -- such as church and family, as well as corporations and schools and the like -- are, at least in potency, ontologically prior to the state. Such group persons both constitute conditions of the possibility of human flourishing and, correlatively, impose limitations on the “sovereign” state. Such group persons are not mere concessions of an unbounded state: They are ontological ...


A Quandary In Law? A (Qualified) Catholic Denial, Patrick Mckinley Brennan Apr 2007

A Quandary In Law? A (Qualified) Catholic Denial, Patrick Mckinley Brennan

Working Paper Series

A contribution to the second law review symposium dedicated to Steven Smith’s Law’s Quandary (Harvard 2004), this paper asks whether the “quandary” in which Smith finds modern law and jurisprudence is not, at least in part, the consequence of misunderstanding the classical natural law jurisprudence. The paper advances an interpretation of natural law according to which the natural law is the human person’s “participation” in the eternal law itself, with literally cosmic consequences for how we understand the ends and measures of human lawmaking. Mounting an argument against Justice Scalia’s thesis that “God applies the natural ...


Looking Backward: Richard Epstein Ponders The “Progressive” Peril, Michael Allan Wolf Apr 2007

Looking Backward: Richard Epstein Ponders The “Progressive” Peril, Michael Allan Wolf

UF Law Faculty Publications

In "How Progressives Rewrote the Constitution," Richard Epstein bemoans the growth of a dominant big government. How Progressives should receive a warm reception from the audience, lawyers and laypeople alike, who view the New Deal as a mistake of epic proportions. For the rest of us, significant gaps will still remain between, on the one hand, our understanding of the nation’s past and of the complex nature of constitutional lawmaking and, on the other, Epstein’s version of the nature of twentieth-century reform and Progressive jurisprudence.


Looking Backward: Richard Epstein Ponders The "Progressive" Peril, Michael Allan Wolf Apr 2007

Looking Backward: Richard Epstein Ponders The "Progressive" Peril, Michael Allan Wolf

Michigan Law Review

In the 1888 novel Looking Backward, Edward Bellamy dreamed up a twentieth century America that was a socialist utopia, a vision invoked four years later by the conservative Justice David J. Brewer as a warning against government regulation. In How Progressives Rewrote the Constitution, Richard Epstein, looking back at the twentieth century through an interpretive lens much more similar to Brewer's than Bellamy's, sees and bemoans the growth of a dominant big government of which the novelist could only dream. Epstein pulls no punches in his attack on those he deems responsible for the shift in the American ...


Pedagogy Of The Suppressed: A Class On Race And The Death Penalty, Phyllis Goldfarb Mar 2007

Pedagogy Of The Suppressed: A Class On Race And The Death Penalty, Phyllis Goldfarb

Boston College Law School Faculty Papers

What does it mean to contextualize legal doctrine and how does contextualization matter? This essay explores a general pedagogy of contextualization within the particular context of a class on race and the death penalty. Teaching the Supreme Court's infamous 1987 opinion in the case of McCleskey v. Kemp within its historical, doctrinal, cultural, and human contexts--rather than as a self-explanatory pronouncement--provides a deeper understanding of America's death penalty system, its connection to America's racial caste system, and the Supreme Court's role in each. These multiple contexts provide a foundation for comprehension and critique of values served ...


Black, White, Brown, Green, And Fordice: The Flavor Of Higher Education In Louisiana And Mississippi, Alfreda S. Diamond Feb 2007

Black, White, Brown, Green, And Fordice: The Flavor Of Higher Education In Louisiana And Mississippi, Alfreda S. Diamond

ExpressO

"Black, White, Brown, Green, and Fordice: The Flavor of Higher Education in Louisiana and Mississippi" chronicles the higher education desegregation sagas in Louisiana and Mississippi. The Article specifically compares the histories of the higher education desegregation lawsuits in the two states and their subsequent experiences and progress under Settlement Agreements. The statistical populations of many universities in both states are still largely identifiable as “white” or “black,” and so the Article will pose questions not only respecting the implementation of United States v. Fordice in both states, but also respecting the value, desirability, or possibility of the “integrative ideal” converting ...


The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash Feb 2007

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

ExpressO

For the past several decades, the majority of courts and commentators have viewed the Ninth Amendment as a provision justifying judicial enforcement of unenumerated individual rights against state and federal abridgment. The most influential advocate of this libertarian reading of the Ninth has been Professor Randy Barnett who has argued in a number of articles and books that the Ninth was originally understood as guarding unenumerated natural rights. Recently uncovered historical evidence, however, suggests that those who framed and ratified the Ninth Amendment understood the Clause as a guardian of the retained right to local self-government. Recognizing the challenge this ...


A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash Feb 2007

A Textual-Historical Theory Of The Ninth Amendment, Kurt T. Lash

ExpressO

Despite the lavish attention paid to the Ninth Amendment as supporting judicial enforcement of unenumerated rights, surprisingly little attention has been paid to the Amendment’s actual text. Doing so reveals a number of interpretive conundrums. For example, although often cited in support of broad readings of the Fourteenth Amendment, the text of the Ninth says nothing about how to interpret enumerated rights such as those contained in the Fourteenth. No matter how narrowly one construes the Fourteenth, the Ninth merely demands that such enumerated rights not be construed to deny or disparage other rights retained by the people. The ...


Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora Feb 2007

Interrogation Of Detainees: Extending A Hand Or A Boot?, Amos N. Guiora

ExpressO

The so called “war on terror” provides the Bush administration with a unique opportunity to both establish clear guidelines for the interrogation of detainees and to make a forceful statement about American values. How the government chooses to act can promote either an ethical commitment to the norms of civil society, or an attitude analogous to Toby Keith’s “American Way,” where Keith sings that “you’ll be sorry that you messed with the USofA, ‘Cuz we’ll put a boot in your ass, It’s the American Way.”

No aspect of the “war on terrorism” more clearly addresses this ...


The American Tradition Of Racial Profiling, Jean Phan Feb 2007

The American Tradition Of Racial Profiling, Jean Phan

ExpressO

The enemy has always been easily recognizable in American life: He has been the savage Native American known for scalping people; the black slave bent on ravaging white women; the Asian worker unfairly competing against the white man; the Mexican immigrant who does nothing but leech off the system; the Arab who dreams up terrorist plots, and carries them out. These enemies have always been visible in American society, and yet, they don’t exist in reality. They exist only in the minds of those too afraid to consider that these strange individuals who seem so different, could be just ...


Petitioner's Observations (February 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala Feb 2007

Petitioner's Observations (February 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.


Petitioner's Observations (February 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala Feb 2007

Petitioner's Observations (February 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala

Jeffrey C. Tuomala

No abstract provided.


Jutstice Kennedy And The Environment: Property, States' Rights, And The Search For Nexus, Michael Blumm Jan 2007

Jutstice Kennedy And The Environment: Property, States' Rights, And The Search For Nexus, Michael Blumm

ExpressO

Justice Anthony Kennedy, now clearly the pivot of the Roberts Court, is the Court’s crucial voice in environmental and natural resources law cases. Kennedy’s central role was never more evident than in the two most celebrated environmental and natural resources law cases of 2006: Kelo v. New London and Rapanos v. U.S., since he supplied the critical vote in both: upholding local use of the condemnation power for economic development under certain circumstances, and affirming federal regulatory authority over wetlands which have a significant nexus to navigable waters. In each case Kennedy’s sole concurrence was outcome ...


Second Amendment Incorporation Through The Fourteenth Amendment Privileges Or Immunities And Due Process Clauses, Michael A. Lawrence Jan 2007

Second Amendment Incorporation Through The Fourteenth Amendment Privileges Or Immunities And Due Process Clauses, Michael A. Lawrence

Faculty Publications

The second amendment, alternately maligned over the years as the black sheep of the constitutional family and worse, and praised as a palladium of the liberties of a republic, since it offers a strong moral check against the usurpation and arbitrary power of rulers, should be recognized by the United States Supreme Court to apply to the several States through the Fourteenth Amendment privileges or immunities clause or, alternatively, through the due process clause.

This article suggests that the issue of Second Amendment incorporation presents a useful contemporary mechanism for the Court to revive the long-dormant Fourteenth Amendment privileges or ...


Preconstitutional Federal Power, Matthew L.M. Fletcher Jan 2007

Preconstitutional Federal Power, Matthew L.M. Fletcher

Faculty Publications

In two fields of constitutional law, the Supreme Court has acknowledged that the federal government may possess preconstitutional power, or national authority derived not from the Constitution but from the very fact of sovereignty. This Article analyzes the two areas of law – the Foreign Affairs Power and the Indian Affairs Power – and assesses their viability in future cases. The case recognizing a preconstitutional Foreign Affairs Power resting with the Executive branch, United States v. Curtiss-Wright Export Corp., suffers from poor historical reasoning and has little precedential weight in modern foreign affairs cases, but has never been overruled. The Indian Affairs ...


Bridging The Divide Between Justice Kennedy’S Progressivism And Justice Scalia’S Textualism: Introducing The Concept Of Negative Originalism, Adam Lamparello Jan 2007

Bridging The Divide Between Justice Kennedy’S Progressivism And Justice Scalia’S Textualism: Introducing The Concept Of Negative Originalism, Adam Lamparello

Adam Lamparello

This Article examines the United States's Supreme Court's reliance upon foreign sources of law when adjudicating "values based" cases. In particular, the Article analyzes the Court's decision in Lawrence v. Texas, with particular emphasis upon the interpretive approaches utilized by Justices Breyer ("progressivism") and Scalia ("originalism") in arriving at their respective decisions. Based upon such examination, including the efficacy of relying upon foreign sources of law to support domestic constitutional decisions, this Article proposes a new interpretive paradigm, entitled "negative originalism", which strives to ensure fidelity to the Constitution's original purposes and objectives, while allowing courts ...


From Human Rights To Fundamental Rights: On The Consequences Of A Conceptual Distinction, Gianluigi Palombella Jan 2007

From Human Rights To Fundamental Rights: On The Consequences Of A Conceptual Distinction, Gianluigi Palombella

Gianluigi Palombella

This article introduces a peculiar distinction between "human" rights and "fundamental" rights, explaining through diverse areas, the role that the difference can play. Rights are loaded with contrasting properties and burdens, opposing features and values (neutral, pre-political, negotiable, democratic, etc.). On the contrary, we should accept - on one side - human rights as moral visions of what is due to human beings, deontological imperatives, even if abstract. But on the other side we cannot ignore the ethical problems: e.g. those resulting from their blind implementation. We need to enhance the institutional, legal and ethical-political meaning of "fundamental" rights, i.e ...


Rights As Norms And As Ends, Gianluigi Palombella Jan 2007

Rights As Norms And As Ends, Gianluigi Palombella

Gianluigi Palombella

This article considers the narratives of law through the lens of the form-substance devide. Different legal theories have provided for opposite definitions of law, legal rules and individual rights, enhancing their identity as due to some substantive content or, on the contrary, to some formal-functional features. The form-substance antinomy reflects both institutional and theoretical reasons. It bears down on the relations envisaged among rights, norms and ends. Different conceptions of rights are best understood as a special articulation of those three terms, and offer different patterns for rights, depending on their relation-opposition with collective ends, ethical values, legislation. The following ...