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Are Justices Ginsburg And Scalia Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin 2016 University of Maryland Francis King Carey School of Law

Are Justices Ginsburg And Scalia Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Faculty Scholarship

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab ...


Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson 2016 Columbia University

Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson

Katharine Jackson

This paper first examines and critiques the group rights to religious exercise derived from the three ontologies of the corporation suggested by different legal conceptions of corporate personhood often invoked by Courts. Finding the implicated groups rights inimical to individual religious freedom, the paper then presents an argument as to why a discourse of intra-corporate toleration and voluntariness does a better job at protecting religious liberty.


Fourth Amendment Remedies As Rights: The Warrant Requirement, David C. Gray 2016 University of Maryland School of Law

Fourth Amendment Remedies As Rights: The Warrant Requirement, David C. Gray

David C. Gray

The constitutional status of the warrant requirement is hotly debated. Critics argue that neither the text nor history of the Fourth Amendment support a warrant requirement. Also questioned is the warrant requirement’s ability to protect Fourth Amendment interests. Perhaps in response to these concerns, the Court has steadily degraded the warrant requirement through a series of widening exceptions. The result is an unsatisfying jurisprudence that fails on both conceptual and practical grounds.

These debates have gained new salience with the emergence of modern surveillance technologies such as stingrays, GPS tracking, drones, and Big Data. Although a majority of the ...


James Wilson And The Moral Foundations Of Popular Sovereignty, Ian C. Bartrum 2016 WIlliam S. Boyd School of Law, UNLV

James Wilson And The Moral Foundations Of Popular Sovereignty, Ian C. Bartrum

Ian C Bartrum

This paper explores the moral philosophy underlying the constitutional doctrine of popular sovereignty. In particular, it focuses on the Scottish sentimentalism that informed James Wilson’s understanding of that doctrine. Wilson, a transplanted Scotsman, was perhaps the nation’s preeminent lawyer in the middle 1780s. He was one of the most important delegates to the Constitutional Convention, one of the nation’s first law professors, and served as Associate Justice on the first Supreme Court. In these capacities, he developed the most sophisticated and coherent account of popular sovereignty among the founding generation. My initial effort is to enrich our ...


Hurdles To The Court: The Doctrine Of Standing Under Statutory Violations, Priya Khangura 2016 Duke Law

Hurdles To The Court: The Doctrine Of Standing Under Statutory Violations, Priya Khangura

Duke Journal of Constitutional Law & Public Policy Sidebar

Standing is a precondition for any suit brought in federal court. This Commentary analyzes a Supreme Court case, Spokeo, Inc. v. Robins, which will address whether a violation of a federal statute grants a plaintiff standing to sue. The Author argues that such a violation is sufficient for establishing standing because the plaintiff suffered an injury-in-fact which the legisture intended to prevent. That harm is both traceable to the violation and redressible by statute. Thus, the requisite elements of constitutional standing exist in this case. Such a holding follows from existing standing jurisprudence and ensures that plaintiffs can have their ...


Arbitration Revisited: Preemption Of California’S Unconscionability Doctrine After Concepcion, David Friedman 2016 Duke Law

Arbitration Revisited: Preemption Of California’S Unconscionability Doctrine After Concepcion, David Friedman

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary looks at a Supreme Court case, Imburgia v. DIRECTV, in which the Court faces the question of whether an arbitration agreement, made pursuant to the Federal Arbitration Act, preempts state unconscionability doctrine which would render that agreement unenforceable. The Author argues that holding that federal law implementing a policy favoring arbitration fully preempts state law doctrines from preventing the enforcement of arbitration agreements.


The Indefinite Deflection Of Congressional Standing, Nat Stern 2016 Pepperdine University

The Indefinite Deflection Of Congressional Standing, Nat Stern

Pepperdine Law Review

Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non-enforcement of federal law. While scholars divide over the normative propriety of such suits, the Court has never issued a definitive pronouncement on their viability. Nevertheless, the Court’s rulings when the issue has arisen have displayed a distinct pattern. While the Court has not formally repudiated suits of this nature, neither has it issued a decision that hinges on the presence of congressional standing. On the contrary, the ...


Millennials, Equity, And The Rule Of Law: 2014 National Lawyers Convention, How First Amendment Procedures Protect First Amendment Substance, Erik S. Jaffe, Aaron H. Caplan, Robert A. Destro, Todd P. Graves, Alan B. Morrison, Eugene Volokh, David R. Stras 2016 The Catholic University of America, Columbus School of Law

Millennials, Equity, And The Rule Of Law: 2014 National Lawyers Convention, How First Amendment Procedures Protect First Amendment Substance, Erik S. Jaffe, Aaron H. Caplan, Robert A. Destro, Todd P. Graves, Alan B. Morrison, Eugene Volokh, David R. Stras

Catholic University Law Review

A panel, at the National Lawyers Convention, discussed procedure as it relates to First Amendment rights. The panel set forth how First Amendment procedures have historically protected First Amendment substance and discussed modern applications of the issue. For example, the prior restraint doctrine, overbreadth doctrine, the allocation of the burden of proof and relaxation of ripeness rules have important implications for challenging restrictions on speech and defending against libel and defamation.

The interaction of free speech and due process is often seen in litigation involving civil harassment orders, or civil protection orders. In many jurisidictions the definition of harassment permits ...


Publius's Political Science, John A. Ferejohn, Roderick M. Hills 2016 NYU Law School

Publius's Political Science, John A. Ferejohn, Roderick M. Hills

New York University Public Law and Legal Theory Working Papers

“Publius,” the collective author of The Federalist, was not just a polemicist and normative theorist but also a political scientist. We argue that the political psychology, and institutional predictions that comprise The Federalist are best understood as political science, because the predictions could be – and were – revised in light of “that best oracle of wisdom, experience” (Federalist 15). After outlining some “maintained hypotheses” about human nature that undergird The Federalist, we describe three respects in which James Madison revised, in light of post-1790 experience, Publius’ institutional predictions. The Federalist pressed the view that the national legislature would be the most ...


Living To Fight Another Day: Judicial Deferral In Defense Of Democracy, Rosalind Dixon, Samuel Issacharoff 2016 University of New South Wales Faculty of Law

Living To Fight Another Day: Judicial Deferral In Defense Of Democracy, Rosalind Dixon, Samuel Issacharoff

New York University Public Law and Legal Theory Working Papers

Even many years after Marbury v. Madison, and even in the face of the spread of aggressive constitutional court review in democracies around the world, the ability of courts to assert their authority against the political branches continues to demand explanation. Especially in newly minted democracies, and most so in countries emerging from authoritarian rule, how courts can engage the misuse of state power remains a bit of a mystery. This Article examines the hitherto under-studied phenomenon of judicial deferral as providing some insight into how courts acquire the institutional capacity to engage in robust judicial review and, in particular ...


Reconsidering The Constitutionality Of Mandatory Minimum Sentences Under Section 231(5)(E) Post-Luxton, Laura Metcalfe 2016 University of Ottawa Faculty of Law

Reconsidering The Constitutionality Of Mandatory Minimum Sentences Under Section 231(5)(E) Post-Luxton, Laura Metcalfe

Western Journal of Legal Studies

Section 231(5)(e) of the Criminal Code elevates murder to first-degree murder when a death is caused while committing unlawful confinement per s. 279 of the Criminal Code. The corresponding mandatory sentence is life imprisonment with no eligibility for parole until 25 years have been served. The Supreme Court of Canada held that this provision was constitutional in R v Luxton, since it did not violate the principles of fundamental justice and was not considered cruel and unusual punishment, contrary to s. 7 and 12 of the Canadian Charter of Rights and Freedoms, respectively.

However, lower courts ought to ...


The Erosion Of The Rule Of Law When A State Attorney General Refuses To Defend The Constitutionality Of Controversial Laws, Rena M. Lindevaldsen 2016 Barry University School of Law

The Erosion Of The Rule Of Law When A State Attorney General Refuses To Defend The Constitutionality Of Controversial Laws, Rena M. Lindevaldsen

Barry Law Review

No abstract provided.


The First Amendment And The World, Timothy Zick 2016 William & Mary Law School

The First Amendment And The World, Timothy Zick

Popular Media

No abstract provided.


Martin Luther King, Jr. Celebration Keynote Address: The Honorable Carlton W. Reeves, United States District Court For The Southern District Of Mississippi, Roger Williams University School of Law 2016 Roger Williams University

Martin Luther King, Jr. Celebration Keynote Address: The Honorable Carlton W. Reeves, United States District Court For The Southern District Of Mississippi, Roger Williams University School Of Law

Conferences, Lectures & Events

No abstract provided.


Riley V. California And The Stickiness Principle, Steven I. Friedland 2016 Duke Law

Riley V. California And The Stickiness Principle, Steven I. Friedland

Duke Law & Technology Review

In Fourth Amendment decisions, different concepts, facts and assumptions about reality are often tethered together by vocabulary and fact, creating a ‘Stickiness Principle.’ In particular, form and function historically were considered indistinguishable, not as separate factors. For example, “containers” carried things, “watches” told time, and “phones” were used to make voice calls. Advancing technology, though, began to fracture this identity and the broader Stickiness Principle. In June 2014, Riley v. California and its companion case, United States v. Wurie, offered the Supreme Court an opportunity to begin untethering form and function and dismantling the Stickiness Principle. Riley presented the question ...


El Debate Del Galeón San Josè , Reflexiones Jurìdicas(1).Rtf, Daniel Fernando Gómez Tamayo 2016

El Debate Del Galeón San Josè , Reflexiones Jurìdicas(1).Rtf, Daniel Fernando Gómez Tamayo

Daniel Fernando Gómez Tamayo

Se dice que el Galeòn San José con tesoros de Perù y  de Colombia fue derribado por los ingleses en siglo XVII y que fue encontrado en proximidades del mar de Cartagena.   


Handbook To Treaty 12th January 2016.Pdf, Jonathan m Bhagan 2016

Handbook To Treaty 12th January 2016.Pdf, Jonathan M Bhagan

Jonathan m Bhagan

Handbook to assist in the understanding of the Caribbean Treaty against Sex Crimes and Human trafficking


Douglass North E A Lava Jato, Bruno Meyerhof Salama 2016

Douglass North E A Lava Jato, Bruno Meyerhof Salama

Bruno Meyerhof Salama

Douglass North, vencedor do prêmio Nobel de economia em 1993, faleceu no finzinho do ano passado aos 95 anos de idade. North se notabilizou por esposar a tese de que as instituições – às quais ele se referia como as “regras do jogo” na sociedade – são decisivas para o desempenho econômico. Bem conhecida é sua defesa da importância da criação de mecanismos de cumprimento de contratos e de direitos de propriedade. No clássico Institutions, Institutional Change and Economic Performance, de 1990, North chegou inclusive a afirmar que “a incapacidade das sociedades de desenvolverem mecanismos de cumprimento e exigibilidade [enforcement] de contratos ...


Ted Cruz Is Not Eligible To Be President, Mary Brigid McManamon 2016

Ted Cruz Is Not Eligible To Be President, Mary Brigid Mcmanamon

Mary Brigid McManamon

Editorial discussing the original intent of "natural born citizen."


Labor Unions And Corporations Both Play Their Vital Roles, Alan E Garfield 2016

Labor Unions And Corporations Both Play Their Vital Roles, Alan E Garfield

Alan E Garfield

Discussion of Supreme Court case Friedrichs v. California Teachers Association.


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