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Secession And Federalism In The United States: Tools For Managing Regional Conflict In A Pluralist Society, Erin Ryan 2016 Florida State University

Secession And Federalism In The United States: Tools For Managing Regional Conflict In A Pluralist Society, Erin Ryan

Erin Ryan

This volume, incorporating the work of scholars from various parts of the globe, taps the wisdom of the Westphalian (and post-Westphalian) world on the use of federalism and secession as tools for managing regional conflict.  The conversation has scarcely been more important than it is right now, especially in light of recent events in Catalonia, Scotland, Québec, and the Sudan—all unique political contexts raising similar questions about how best to balance competing claims for autonomy, interdependence, political voice, and exit.  Exploring how various nations have encountered like conflicts, some more and some less successfully, promises to broaden the perspectives ...


Is The Supreme Court 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

Is The Supreme Court 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 ...


The Riddle Of Harmless Error Revisited, John Greabe 2016 Franklin Pierce Law Center

The Riddle Of Harmless Error Revisited, John Greabe

John M Greabe

Half a century ago, in Chapman v. California, the Supreme Court imposed on appellate courts an obligation to vacate or reverse criminal judgments marred by constitutional error unless the government demonstrates that the error was harmless beyond a reasonable doubt.  But the Court did not explain the juridical status of this obligation or its relation to the federal harmless-error statute, 28 U.S.C. § 2111.  In the intervening years, commentators have struggled to make sense of Chapman.  Some see it as a constitutional mandate.  Others view it as an example of constitutional common law. In THE RIDDLE OF HARMLESS ERROR ...


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.


Abortion, Informed Consent And Regulatory Spillover, Alex Stein, Katherine Shaw 2016 Cardozo Law School

Abortion, Informed Consent And Regulatory Spillover, Alex Stein, Katherine Shaw

Alex Stein

The constitutional law of abortion stands on the untenable assumption that any state’s abortion regulations impact citizens of that state alone. On this understanding, the state’s boundaries demarcate the terrain on which women’s right to abortion clashes with state power to regulate that right.
 
This Article uncovers a previously unnoticed horizontal dimension of abortion regulation: the medical-malpractice penalties imposed upon doctors for failing to fully inform patients about abortion risks; the states’ power to define those risks, along with doctors’ informed-consent obligations and penalties; and, critically, the possibility that such standards might cross state lines. Planned Parenthood ...


Ten Good Practices In Environmental Constitutionalism That Can Contribute To Sustainable Shale Gas Development, James R. May, Erin Daly 2016 Widener Law

Ten Good Practices In Environmental Constitutionalism That Can Contribute To Sustainable Shale Gas Development, James R. May, Erin Daly

James R. May

Unconventional shale gas development is occurring at a breakneck pace, principally in North America, with vast reserves elsewhere. This development has placed new and unorthodox stresses on traditional environmental governance paradigms. Environmental constitutionalism offers an additional tool for engaging in sustainable practices in the development of shale gas. We identify ten ‘good practices’ in environmental constitutionalism including: situating it in systems amenable to social, economic and cultural rights, and those with civil law traditions; clearly articulating a positive individual or collective right; making provisions self-executing; aligning substantive, policy-based and procedural provisions; recognizing sustainability, public trust, climate and biocentrism; scaffolding additional ...


Adoption And Foster Care Placement Policies: Legislatively Promoting The Best Interest Of Children Amidst Competing Interests Of Religious Freedom And Equal Protection For Same-Sex Couples, Samantha R. Lyew 2016 Notre Dame Law School

Adoption And Foster Care Placement Policies: Legislatively Promoting The Best Interest Of Children Amidst Competing Interests Of Religious Freedom And Equal Protection For Same-Sex Couples, Samantha R. Lyew

Journal of Legislation

No abstract provided.


If You Fly A Drone, So Can Police, Stephen E. Henderson 2016 University of Oklahoma College of Law

If You Fly A Drone, So Can Police, Stephen E. Henderson

Stephen E Henderson


According to the U.S. Constitution, the more you fly your drone, the more police can fly theirs. “Come on,” you might reply, “that hoary document”—and, yes, sorry to make you the sort who drops words like hoary—“that hoary document surely says nothing about drones.” But in fact it does. At least it does as interpreted by the courts. In particular, it is how they interpret the Fourth Amendment. So, to understand this aspect of drones, we first must understand this provision of the Bill of Rights...


Why We Need Reed: Unmasking Pretext In Anti-Panhandling Legislation, Joseph Mead 2016 Selected Works

Why We Need Reed: Unmasking Pretext In Anti-Panhandling Legislation, Joseph Mead

Joseph Mead

The First Amendment severely disfavors content-based restrictions on speech in public areas. In its 2015 decision in Reed v. Town of Gilbert, the Supreme Court clarified the test for determining whether a speech restriction is content-based, ratcheting up the number of laws subject to strict scrutiny. While this decision has been criticized by some, I argue that, at least in the context of anti-panhandling legislation, Reed was a needed answer to local governments passing overly broad restrictions motivated by a desire to drive an unpopular type of speech from the city square. I use anti-panhandling ordinances from three local jurisdictions ...


Law And Religion Collide: Supreme Court Punts High-Profile Case Concerning The Legality Of Ensuring Female Contraception Insurance In The Face Of Religious Objections, Alan E. Garfield 2016 Widener Law

Law And Religion Collide: Supreme Court Punts High-Profile Case Concerning The Legality Of Ensuring Female Contraception Insurance In The Face Of Religious Objections, Alan E. Garfield

Alan E Garfield

No abstract provided.


State Constitutional Design And Education Reform: Process Specification In Louisiana, Scott R. Bauries 2016 University of Kentucky College of Law

State Constitutional Design And Education Reform: Process Specification In Louisiana, Scott R. Bauries

Scott R. Bauries

As to education, the Louisiana Constitution contains the familiar general mandate for the establishment of a public school system, now ubiquitous among state constitutions. But unlike the founding documents of any of the other states, Louisiana's constitution also provides for a very specific process-based allocation of the responsibilities for determining appropriations levels in education from year to year.

It is well-known that state constitutions often treat numerous—sometimes trivial—subjects, or contain provisions that seem hyper-specific and statutory, rather than foundational and constitutional, and state constitutions have been roundly criticized (and sometimes defended) for these features. In this Article ...


State Constitutions And Individual Rights: Conceptual Convergence In School Finance Litigation, Scott R. Bauries 2016 University of Kentucky College of Law

State Constitutions And Individual Rights: Conceptual Convergence In School Finance Litigation, Scott R. Bauries

Scott R. Bauries

This Article begins by reviewing Wesley Newcomb Hohfeld's “fundamental conceptions” and expanding his theory to the arena of state constitutional rights, building on recent work by other scholars. From this foundation, it moves to a discussion of the sources of rights to education. The Article then examines the text of relevant state constitutional provisions, as well as the ever-changing landscape of school finance litigation, the principal vehicle through which litigants assert constitutional claims based on ostensible education rights. Next, it systematically analyzes the population of reported cases from the highest state courts to identify Hohfeldian conceptions of education rights ...


Religious Free Speech Rights Of Students In Public Schools: The Educator's Dilemma, Rosalie Levinson 2016 Valparaiso University

Religious Free Speech Rights Of Students In Public Schools: The Educator's Dilemma, Rosalie Levinson

Rosalie Berger Levinson

No abstract provided.


Better Not Call Saul: The Impact Of Criminal Attorneys On Their Clients' Sixth Amendment Right To Effective Assistance Of Counsel, Veronica J. Finkelstein 2016 Drexel University Thomas R. Kline School of Law

Better Not Call Saul: The Impact Of Criminal Attorneys On Their Clients' Sixth Amendment Right To Effective Assistance Of Counsel, Veronica J. Finkelstein

University of Cincinnati Law Review

No abstract provided.


Federalism As A Constitutional Principle, Ernest Young 2016 Duke Law School

Federalism As A Constitutional Principle, Ernest Young

University of Cincinnati Law Review

Justice O’Connor rightly called federalism “our oldest question of constitutional law.”1 But the constitutional balance between the nation and the states is hardly what the cool kids are talking about these days. My first-year con law students show up each Fall expecting to learn about same-sex marriage, flag burning, and abortion; they’re plainly disappointed when they pick up the syllabus and see how much of the course is going to be about government structure.

The first part of my talk resists that intuition. The notion that federalism is passé is so tragically wrongheaded that I can’t ...


Gutting Public Sector Unions: Friedrichs V. California Teachers Association, Jake Wasserman 2016 Duke Law

Gutting Public Sector Unions: Friedrichs V. California Teachers Association, Jake Wasserman

Duke Journal of Constitutional Law & Public Policy Sidebar

In Friedrichs v. California Teachers Association, public-sector unions face a constitutional challenge that could lead to their demise. In California, all public school employees are represented by a union--whether or not they are union members--and are required to pay an agency fee. This requirement seems to run contrary to the First Amendment, which generally prohibits the government from compelling citizens to support the speech and expressive activities of a private organization. This commentary argues that the Court should not overrule its decision in Abood v. Detroit Board of Education and uphold the validity of agency-shop agreements.


Ocasio V. United States: The Scope Of A Conspiracy To Commit Hobbs Act Extortion, Benjamin Ludewig 2016 Duke Law

Ocasio V. United States: The Scope Of A Conspiracy To Commit Hobbs Act Extortion, Benjamin Ludewig

Duke Journal of Constitutional Law & Public Policy Sidebar

Ocasio v. United States presents the question of whether a conviction under the general federal conspiracy statute may be based on Hobbs Act extortion when a public official defendant has formed an agreement to obtain property from someone within the conspiracy. There is currently a circuit split on the question presented in Ocasio v. United States, which the Supreme Court will address. This commentary argues that the Court should allow a conviction under the general federal conspiracy statute to be based on Hobbs Act extortion when the property is obtained from someone within the conspiracy. This holding is consistent with ...


Asking The Right Federal Questions: Merrill Lynch V. Manning And The Exclusive Jurisdiction Provisions Of The Securities Exchange Act, Seth Taylor 2016 Duke Law

Asking The Right Federal Questions: Merrill Lynch V. Manning And The Exclusive Jurisdiction Provisions Of The Securities Exchange Act, Seth Taylor

Duke Journal of Constitutional Law & Public Policy Sidebar

Suppose you run a small corporation in the business of auctioneering stamps, coins, and other collectibles. Sensing that your corporation’s financial prospects are on the decline, large financial institutions drive the price of the company’s stock down. Your shareholders sue in state court alleging a breach of state law in manipulating stock prices while also referencing breaches of federal securities law.

Can the defendant financial institutions remove the case to federal court? This question is set to be answered by the Supreme Court in Manning v. Merrill Lynch, which deals specifically with whether section 27 of the Securities ...


Going To Hell In A Hhs Notice: The Contraceptive Mandate's Next Impermissible Burden On Religious Freedom, Trey O'Callaghan 2016 Duke Law

Going To Hell In A Hhs Notice: The Contraceptive Mandate's Next Impermissible Burden On Religious Freedom, Trey O'Callaghan

Duke Journal of Constitutional Law & Public Policy Sidebar

The Affordable Care Act’s requirement that eligible religious organizations submit a notice objecting to providing their employees contraceptive coverage if they religiously object to contraception or abortifacients is as simple as filing a piece of paper. But to a collection of Catholic petitioners, complying with this requirement gives rise to “scandal” and causes them to “materially cooperate” with sin. Filing a piece of paper may seem far outside any exercise of religion, but these groups sincerely believe that the one page notice burdens their religious beliefs.

Zubik v. Burwell, like Burwell v. Hobby Lobby Stores, presents a conflict between ...


Ring Around The Jury: Reviewing Florida's Capital Sentencing Framework In Hurst V. Florida, Richard Guyer 2016 Duke Law

Ring Around The Jury: Reviewing Florida's Capital Sentencing Framework In Hurst V. Florida, Richard Guyer

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary discusses Hurst v. Florida, a case in which the Supreme court will review Florida's death sentencing scheme to determine whether it violates the Sixth of Eighth Amendments. The author argues that Florida's capital sentencing framework violates the Sixth Amendment. A jury, rather than a judge, better reflects society's moral views, which are critical to weigh when deciding whether to impose the death penalty.


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