Emerging Patterns Of Global Constitutionalization: Toward A Conceptual Framework, 2014 Maurer School of Law: Indiana University
Emerging Patterns Of Global Constitutionalization: Toward A Conceptual Framework, Karolina Milewicz
Indiana Journal of Global Legal Studies
Global constitutionalization is a recent phenomenon that is decisively changing the character of the international order. This argument was put forward recently by scholars of international law and has gained significance in the institutional school of thought. However, the notion of "global constitutionalization" is often used imprecisely and has so far been largely neglected in the field of international relations. It still lacks a consistent and operational definition, which would enable political scientists and international relations scholars to conduct empirical research. This article explores a preliminary framework for the concept of global constitutionalization.
Global Constitutionalism – Process and Substance, Symposium. Kandersteg ...
Extract From Gary Lawson Et Al., The Fiduciary Foundations Of Federal Equal Protection (Forthcoming Circa June 2014), Citing The Teachout-Tillman Exchange, Seth Barrett Tillman
Seth Barrett Tillman
This is an extract from Gary Lawson et al., The Fiduciary Foundations of Federal Equal Protection, 94 B.U. L. Rev. (forthcoming circa June 2014) (manuscript at 9 n.26), citing the Teachout-Tillman exchange.
[August 28, 2013]
The Spending Power And Environmental Law After Sebelius, 2014 SelectedWorks
The Spending Power And Environmental Law After Sebelius, Erin Ryan
This article analyzes the Supreme Court’s new spending power doctrine and its impact on state-federal bargaining in programs of cooperative federalism, using the laboratory of environmental law. (It expands on the legal analysis in an Issue Brief originally published by the American Constitution Society on Oct. 1, 2013.)
After the Supreme Court ruled in the highly charged Affordable Care Act case of 2012, National Federation of Independent Business vs. Sebelius, the political arena erupted in debate over the implications for the health reform initiative and, more generally, the reach of federal law. Analysts fixated on the decision’s dueling ...
Abidor V. Napolitano: Suspicionless Cell Phone And Laptop Searches At The Border Compromise The Fourth And First Amendments, Adam Lamparello, Charles Maclean
The article explores the December 31, 2013 Abidor decision where the federal district court upheld the ongoing application of the border search exception as applied to deep, forensic searches of laptops and other digital devices. That exception allows suspicionless searches of any persons, effects, and “closed containers” crossing a border into the United States, and laptops and external hard drives are generally considered “closed containers” under the border search exception. We argue that the border search exception, grounded as it is in pre-digital age fact patterns, should no longer serve as precedent for border searches of the immense memories of ...
An Imminent Substantial Disruption: Towards A Uniform Standard For Balancing The Rights Of Students To Speak And The Rights Of Administrators To Discipline., Allison G. Kort
Allison G Kort
An Imminent Substantial Disruption: Toward a Uniform Standard for Balancing the Rights of Students to Speak and the Rights of Administrators to Discipline.
By Allison Kort
Twenty-five years before the Supreme Court’s landmark school speech decision in Tinker v. Des Moines, 393 U.S. 503, 504 (1969), the Court cautioned against placing too much discretion in the hands of school boards. In Tinker, when students wore black armbands to protest the Vietnam War, the Supreme Court determined that student speech may not be censored when the record demonstrates no facts which would reasonably have led school authorities to ...
When Free Exercise Is A Burden: Protecting "Third Parties" In Religious Accommodation Law, Kara Loewentheil
During the 2014 Supreme Court term the Court will consider two challenges to the contraceptive coverage requirement of the Affordable Care Act. These cases have attracted enormous attention, and have brought a new urgency to the principle that requests for religious accommodations should be weighed against any burdens such accommodations would impose on "third parties." To date, however, neither courts nor scholars have provided a consistent or principled way of thinking through how to evaluate such burdens and how to weigh them against free exercise rights. This Article takes up that challenge, using the example of the contraceptive coverage cases ...
The Filibuster And The Framing: Why The Cloture Rule Is Unconstitutional And What To Do About It, 2014 University of Georgia School of Law
The Filibuster And The Framing: Why The Cloture Rule Is Unconstitutional And What To Do About It, Dan T. Coenen
The U.S. Senate’s handling of filibusters has changed dramatically in recent decades. As a result, the current sixty-vote requirement for invoking cloture of debate does not produce protracted speechmaking on the Senate floor, as did predecessors of this rule in earlier periods of our history. Rather, the upper chamber now functions under a “stealth filibuster” system that in practical effect requires action by a supermajority to pass proposed bills. This Article demonstrates why this system offends a constitutional mandate of legislative majoritarianism in light of well-established Framing-era understandings and governing substance-over-form principles of interpretation. Having established the presence ...
The Scarlet Letter: Why Courts’ Reliance On Recidivist Statutes During Sentence Enhancement Hearings May Create Fifth And Eighth Amendment Violations, Jesse S. Weinstein
No abstract provided.
The Abolition Of The Mandatory Death Penalty In The Commonwealth: Recent Developments From India And Bangladesh, 2014 American University Washington College of Law
The Abolition Of The Mandatory Death Penalty In The Commonwealth: Recent Developments From India And Bangladesh, Andrew Novak
India and Bangladesh are following the Commonwealth-wide trend toward discretionary death penalty regimes and away from the common law mandatory death penalty. This case note analyzes three recent decisions of the Supreme Court of India and the Bangladesh Appellate Division invalidating mandatory death sentences.
Andrew Novak is an adjunct professor of law at American University Washington College of Law, and an adjunct professor of criminology, law, and society at George Mason University. He is the author of The Global Decline of the Mandatory Death Penalty: Comparative Jurisprudence and Legislative Reform in Africa, Asia, and the Caribbean (Ashgate 2014) and The ...
Transgender Inpportunity And Inequality: Evaluating The Crossroads Between Immigration And Transgender Individuals, 2014 Seattle University School of Law
Transgender Inpportunity And Inequality: Evaluating The Crossroads Between Immigration And Transgender Individuals, Alexandra Caggiano
Seattle University Law Review
Despite being married to a U.S. citizen, non-citizen transgender individuals and non-citizen spouses married to transgender U.S. citizens still face deportation today due to current immigration policies. When forced to return to their home countries, transgender individuals are likely to encounter violence from those who perpetuate hate towards transgender and gender non-conforming individuals. Instead of protecting these individuals, the United States continues to send people back to their native countries solely because those individuals do not fall within the narrowly constructed definition of marriage some states use that is legally recognized by federal courts. Transgender individuals receive disparate ...
Taxing Judicial Restraint: How Washington's Supreme Court Misinterpreted Its Role And The Washington State Constitution, 2014 Seattle University School of Law
Taxing Judicial Restraint: How Washington's Supreme Court Misinterpreted Its Role And The Washington State Constitution, Nicholas Carlson
Seattle University Law Review
In the realm of constitutional interpretation, the judicial department reigns supreme. League of Education Voters v. State exemplifies the judiciary’s potential abuse of its interpretative role: The Washington Supreme Court misinterpreted its judicial function because it ignored the text of Washington State’s constitution and held a statute unconstitutional. The court, therefore, voided a statute because of judicial volition, not because Washington’s constitution demanded that outcome. This Note challenges the reasoning in League and makes a novel suggestion for Washington State constitutional analysis, an approach that may apply to other states. This Note details a new analytical framework ...
Infusing The Meaning Of “Cruel And Unusual” Through The Digital Public Sphere: How The Internet Can Change The Debate On The Morality Of Capital Punishment, Adam A. Marshall
Adam A Marshall
In this paper, I suggest new strategies that abolitionists should adopt in the debate over the morality of the death penalty. As the Eighth Amendment “draw[s] its meaning from the evolving standards of decency that mark the progress of a maturing society”, advocates for abolishing the death penalty should develop strategies based on the moral theories of Adam Smith to leverage the power of the internet and ensure all citizens feel the effects of the death penalty in order to stimulate debate over its morality. By examining these concepts through the case of Troy Davis, we can see how ...
Solving Batson, 2014 SelectedWorks
Solving Batson, Tania Tetlow
The Supreme Court faced an important ideological choice when it banned the racial use of peremptory challenges in Batson v. Kentucky. It could either ground the rule in equality rights designed to protect potential jurors from stereotyping, or it could base the rule on the defendant’s Sixth Amendment right to an “impartial jury” drawn from a fair cross-section of the community. By choosing Equal Protection analysis, the Court turned away from the defendant and the fair functioning of the criminal justice system and instead focused on protecting potential jurors. The Court thus built fatal error into the Batson rule ...
Evidence And The Pursuit Of Truth In The Law, 2014 SelectedWorks
Evidence And The Pursuit Of Truth In The Law, Jeffery L. Johnson
Jeffery L Johnson
Lawyers should be much more concerned with the concepts of truth and evidence. The entire profession depends on truth. It is what police detectives, District Attorneys, juries, trial judges, appellate judges, and academic lawyers offering interpretive theories, are all concerned with. But, since truth is seldom apparent on its sleeve, these legal actors are equally dependent on evidence as the only(?) reliable(?) means of determining truth. I defend a commonsensical theory of [good] evidence. I argue that this view, inference to the best explanation, captures most, if not all, of a lawyer’s appeal to evidence. It is far from ...
The Civil Rights-Civil Liberties Divide, 2014 Chicago-Kent College of Law
The Civil Rights-Civil Liberties Divide, Christopher W. Schmidt
Christopher W. Schmidt
Contemporary legal discourse differentiates “civil rights” from “civil liberties.” The former are generally understood as protections against discriminatory treatment, the latter as freedom from oppressive government authority. This Essay explains how this differentiation arose and considers its consequences.
Although there is a certain inherent logic to the civil rights-civil liberties divide, it in fact is the product of the unique circumstances of a particular moment in history. In the early years of the Cold War, liberal anticommunists sought to distinguish their incipient interest in the cause of racial equality from their belief that national security required limitations on the speech ...
You Booze, You Bruise, You Lose: Analyzing The Constitutionality Of Florida’S Involuntary Blood Draw Statute In The Wake Of Missouri V. Mcneely, Francisco D. Zornosa
Francisco D Zornosa
No abstract provided.
Whether A Standard Legislated Framework Should Govern Public-Private Partnerships For Finance And Maintenance Of Public Infrastructure In The Modern Economy?, Anika Guevara
No abstract provided.
One Person, One Vote And The Constitutionality Of The Winner-Take-All Allocation Of Electoral College Votes, 2014 University of Tennessee, Knoxville
One Person, One Vote And The Constitutionality Of The Winner-Take-All Allocation Of Electoral College Votes, Christopher Duquette, David Schultz
Tennessee Journal of Law & Policy
The Electoral College is an American political and constitutional curiosity. The constitutional framers believed it would produce "extraordinary persons" as presidents because they would be selected by "men most capable of analyzing the qualities adapted to the station" of the presidency.' Its more recent defenders, such as Martin Diamond, have justified it as either a constitutional system meant to protect individual and minority rights or a mechanism to overcome regionalism. In Diamond's view, along with the principles of separation of powers and checks and balances, it was necessary to thwart the dangers of factionalism that a popular government posed ...
Marriage Equailty: Why Laws Restricting Same-Sex Couples' Rights Should Be Subject To Heightened Scrutiny Under Equal Protection Challenges., Cory A. Delellis
Cory A DeLellis
This thesis discusses why laws that restrict marital rights and recognition, on the basis of the couple’s sexual orientation, should be subject to a heightened or intermediate level of judicial scrutiny under Equal Protection challenges. This thesis addresses, analyzes, and suggests why sexual orientation – within the context of same-sex couples – should be considered a quasi-suspect class, rather than a non-suspect class, so that laws negatively impacting couples based on their sexual orientation are subjected to a fairer and more reasonable level of judicial scrutiny.
Religious Freedom And Workers’ Compensation - Big Sky Colony V Montana Department Of Labor And Industry, Mel Cousins
Social security and health care litigation has played a prominent role in the development of the jurisprudence concerning the religious clauses of the US Constitution. At the time of writing further litigation in this area is ongoing with initial rulings having been handed down in relation to challenges concerning the compatibility of the PPACA’s contraceptive mandate with the Religious Freedom Restoration Act (RFRA). This note considers an interesting recent decision of the Montana supreme court which considered the constitutionality of an extension of coverage under the Montana workers’ compensation code to colonies of the Hutterite (or Hutterian or Hutterische ...