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Book (Oup) - Proportionality Balancing And Constitutional Governance - Chapter 6.Pdf, Alec Stone Sweet 2018 Yale Law School

Book (Oup) - Proportionality Balancing And Constitutional Governance - Chapter 6.Pdf, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.


Book (Oup) - Proportionality Balancing And Constitutional Governance - Chapter 2.Pdf, Alec Stone Sweet 2018 Yale Law School

Book (Oup) - Proportionality Balancing And Constitutional Governance - Chapter 2.Pdf, Alec Stone Sweet

Alec Stone Sweet

No abstract provided.


Taxonomy Of Minority Governments, Lisa La Fornara 2018 Maurer School of Law: Indiana University

Taxonomy Of Minority Governments, Lisa La Fornara

Indiana Journal of Constitutional Design

A minority government in its most basic form is a government in which the party holding the most parliamentary seats still has fewer than half the seats in parliament and therefore cannot pass legislation or advance policy without support from unaffiliated parties. Because seats in minority parliaments are more evenly distributed amongst multiple parties, opposition parties have greater opportunity to block legislation. A minority government must therefore negotiate with external parties and adjust its policies to garner the majority of votes required to advance its initiatives.

This paper serves as a taxonomy of minority governments in recent history and proceeds ...


We Are All Farkhunda: An Examination Of The Treatment Of Women Within Afghanistan's Formal Legal System, Ashley Lenderman 2018 Indiana University Maurer School of Law

We Are All Farkhunda: An Examination Of The Treatment Of Women Within Afghanistan's Formal Legal System, Ashley Lenderman

Indiana Journal of Constitutional Design

In this paper, I will examine three cases of violence against women that went through the Afghan formal legal system: the case of Farkhunda, the Paghman district gang rape case, and the case of Sahar Gul. In the first Part, I will discuss the formal legal system framework on which the cases are based. In the second Part, I will discuss the cases in detail. In the third Part, I will describe neo-liberal, reformist, and neo-fundamentalist approaches to interpretation of Islamic law, and I will then draw out pieces of the decisions from the three cases that closely match these ...


Legislative Committee Systems: A Design Perspective, Chase Stoddard 2018 Indiana University Maurer School of Law

Legislative Committee Systems: A Design Perspective, Chase Stoddard

Indiana Journal of Constitutional Design

Committees are the defining characteristic of the modern legislature. While the centrality and study of party politics goes back further than committee politics, the focus on committee systems emerged over the course of the twentieth century, and legislatures could not function as we understand them without this mechanism. The United States Congressional committee system is the most studied system, yet virtually every country utilizes a committee system of some sort within its legislature. Despite their ubiquity in and centrality to the operations of legislatures, committees remain insufficiently studied, especially outside of the United States. The existing body of work tends ...


Lockett Symposium: Is The Supreme Court's Command On Mitigating Circumstances A Spoonful Of Sugar With A Poison Pill For The Death Penalty?, Jeffrey L. Kirchmeier 2018 The University of Akron

Lockett Symposium: Is The Supreme Court's Command On Mitigating Circumstances A Spoonful Of Sugar With A Poison Pill For The Death Penalty?, Jeffrey L. Kirchmeier

ConLawNOW

This Article addresses how Lockett v. Ohio and the Supreme Court’s jurisprudence on mitigating factors in capital cases established a more humane death penalty while at the same time undermining the death penalty system. The Court’s emphasis on the constitutional importance of individualized sentencing has, in effect, helped return the U.S. death penalty system to an unconstitutional arbitrary and discriminatory system.

After the U.S. Supreme Court effectively struck down the existing death penalty statutes in 1972, state legislatures responded with new statutes designed to try to make a fairer and less arbitrary death penalty. When the ...


Lockett Symposium: Lockett V. Ohio And The Rise Of Mitigation Specialists, Russell Stetler 2018 The University of Akron

Lockett Symposium: Lockett V. Ohio And The Rise Of Mitigation Specialists, Russell Stetler

ConLawNOW

This article discusses the impact of Lockett in terms of the rise of mitigation specialists—the capital defense team members from a variety of multidisciplinary backgrounds whose dedicated function is to investigate the social history of the client in order to facilitate an outcome that avoids execution. In Part I, the article discusses how Lockett ended the confusion that resulted from the Supreme Court’s prior death penalty decisions in the 1970s. In Part II, the article examines the emergence of mitigation investigation as a central obligation of capital defense in response to Lockett, and the diverse career paths that ...


Lockett Symposium: Justice White's Lockett Concurrence And The Evolving Standards For A Capital Defendant's Mens Rea, Jordan Berman 2018 The University of Akron

Lockett Symposium: Justice White's Lockett Concurrence And The Evolving Standards For A Capital Defendant's Mens Rea, Jordan Berman

ConLawNOW

In Lockett v. Ohio, Justice Byron White authored a separate concurring opinion specifically to assert that capital punishment violates the Eighth Amendment when imposed absent “a finding that the defendant possessed a purpose to cause the death of the victim.” This view was largely vindicated when Justice White authored the opinions in Enmund v. Florida and Cabana v. Bullock, in which the Court held that the death sentence could not constitutionally be imposed on one who did not kill or attempt to kill or have any intention of participating in or facilitating a killing. Nonetheless, just one year after Bullock ...


Lockett Symposium: Reflections On The Sandra Lockett Case, Peggy Cooper Davis 2018 The University of Akron

Lockett Symposium: Reflections On The Sandra Lockett Case, Peggy Cooper Davis

ConLawNOW

Professor Davis, who was one of the lawyers handling Sandra Lockett’s Supreme Court case, describes Ms. Lockett's courage under threat of execution and explains why principles of respect for human dignity should have forbidden placing her in that horrifying position.


Lockett Symposium: The Other Lockett, Dennis Balske 2018 The University of Akron

Lockett Symposium: The Other Lockett, Dennis Balske

ConLawNOW

Sandra’s case was perfect for the New York Times. James’s makes for choice tabloid reading.

Few people realize that two Locketts were involved in the famous Lockett case–Sandra and her brother, James. Sandra is famous because she is the Lockett in the United States Supreme Court decision. James is unknown because the Ohio Supreme Court remanded his case to Akron for a new trial.

Sandra lost her direct appeal in the Ohio Supreme Court. Eventually the United States Supreme Court granted review and reached its all-important decision striking down Ohio’s death penalty statute and mandating that ...


Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei 2018 Western University

Cracking Down On Cages: Feminist And Prison Abolitionist Considerations For Litigating Solitary Confinement In Canada, Winnie Phillips-Osei

Master of Laws Research Papers Repository

Guided by prison abolition ethic and intersectional feminism, my key argument is that Charter section 15 is the ideal means of eradicating solitary confinement and its adverse impact on women who are Aboriginal, racialized, mentally ill, or immigration detainees. I utilize a provincial superior court’s failing in exploring a discrimination analysis concerning Aboriginal women, to illustrate my key argument. However, because of the piecemeal fashion in which courts can effect developments in the law, the abolition of solitary confinement may very well occur through a series of ‘little wins’. In Chapter 11, I provide a constitutional analysis, arguing that ...


Church History, Liberty, And Political Morality: A Response To Professor Calhoun, Ian Huyett 2018 Washington and Lee University School of Law

Church History, Liberty, And Political Morality: A Response To Professor Calhoun, Ian Huyett

Washington and Lee Law Review Online

In his address, Professor Calhoun used American Christian abolitionism to illustrate the beneficial role that religion can play in political debate. Surveying the past two millennia, I argue that Christian political thought has protected liberty in every era of the church’s dramatic history. Along the way, I rebut critics—from the left and right—who urge that Christianity’s political influence has been unhelpful or harmful. I also seek to show that statements like “religion has no place in politics” are best understood as expressions of arbitrary bias.


Law By Non-Lawyers: The Limit To Limited License Legal Technicians Increasing Access To Justice, Rebecca M. Donaldson 2018 Seattle University School of Law

Law By Non-Lawyers: The Limit To Limited License Legal Technicians Increasing Access To Justice, Rebecca M. Donaldson

Seattle University Law Review

For the first time in the American legal profession, non-lawyers can openly, independently, ethically, and legally engage in activities recognized by bar associations as the practice of law. In 2012, the Washington Supreme Court passed Admission and Practice Rule 28 (APR 28), establishing the profession’s first paraprofessional licensing scheme that allows non-lawyers to give legal advice. The process authorizes qualified non-lawyers to provide legal advice without the supervision of a lawyer. Washington’s Supreme Court intends for Limited License Legal Technicians, or “LLLTs” as they are known, to increase access to justice by responding to the unmet civil legal ...


Much Ado About Nothing?: Local Resistance And The Significance Of Sanctuary Laws, Alyssa Garcia 2018 Seattle University School of Law

Much Ado About Nothing?: Local Resistance And The Significance Of Sanctuary Laws, Alyssa Garcia

Seattle University Law Review

This Comment explores the current constitutional discourse of sanctuary laws and compares their various components. Part I provides background on the basic policy components of sanctuary laws and modern policies. Part II explores and compares the substantive legal and political value of sanctuary laws. This section will first assess the impact of sanctuary policies on existing immigration and constitutional law. In doing so, specific sanctuary jurisdictions involved in litigation, Seattle, San Francisco, and Chicago, and their likelihood of withstanding preemption under existing doctrine will be compared. The impact sanctuary laws may have on the Tenth Amendment will next be discussed ...


Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt 2018 Chicago-Kent College of Law

Originalism And Congressional Power To Enforce The Fourteenth Amendment, Christopher W. Schmidt

Washington and Lee Law Review Online

In this Essay, I argue that originalism conflicts with the Supreme Court’s current jurisprudence defining the scope of Congress’ power to enforce the Fourteenth Amendment. Under the standard established in Boerne v. Flores, the Court limits congressional power under Section 5 of the Fourteenth Amendment to statutory remedies premised on judicially defined interpretations of Fourteenth Amendment rights. A commitment to originalism as a method of judicial constitutional interpretation challenges the premise of judicial interpretive supremacy in Section 5 jurisprudence in two ways. First, as a matter of history, an originalist reading of Section 5 provides support for broad judicial ...


The Stored Communications Act: Property Law Enforcement Tool Or Instrument Of Oppression?, Raymond Boyce 2018 West Virginia University College of Law

The Stored Communications Act: Property Law Enforcement Tool Or Instrument Of Oppression?, Raymond Boyce

West Virginia Law Review

No abstract provided.


The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne R. Barnes 2018 Texas A&M University School of Law

The Paradox Of Christian-Based Political Advocacy: A Reply To Professor Calhoun, Wayne R. Barnes

Washington and Lee Law Review Online

Professor Calhoun, in his Article around which this

symposium is based, has asserted that it is permissible for citizens

to publicly argue for laws or public policy solutions based on

explicitly religious reasons.1 Calhoun candidly admits that he has

“long grappled” with this question (as have I, though he for longer),

and, in probably the biggest understatement in this entire

symposium, notes that Professor Kent Greenawalt identified this

as “a particularly significant, debatable, and highly complex

problem.”2 Is it ever. I have a position that I will advance in this

article, but I wish to acknowledge at the ...


America's Creed: The Inevitable, Sometimes Dangerous, Mixing Of Religion And Politics, David M. Smolin 2018 Cumberland Law School, Samford University

America's Creed: The Inevitable, Sometimes Dangerous, Mixing Of Religion And Politics, David M. Smolin

Washington and Lee Law Review Online

Political and philosophical theorists have often advocated for

the exclusion of some or all religious perspectives from full

participation in politics. Such approaches create criteria—such as

public accessibility, public reason, or secular rationale—to

legitimate such exclusion. During the 1990s I argued, as an

evangelical Christian, against such exclusionary theories,

defending the rights to full and equal political participation by

evangelical Christians, traditionalist Roman Catholics, and any

others who would be restricted by such criteria.


Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff 2018 University of Arkansas School of Law, Fayetteville

Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff

Fordham Law Review

Each year, law enforcement seizes thousands of electronic devices—smartphones, laptops, and notebooks—that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password? This Article considers the Fifth Amendment protection against compelled disclosures of passwords—a question that has split and confused courts ...


A Constitutional Case For Extending The Due Process Clause To Asylum Seekers: Revisiting The Entry Fiction After Boumediene, Zainab A. Cheema 2018 Fordham University School of Law

A Constitutional Case For Extending The Due Process Clause To Asylum Seekers: Revisiting The Entry Fiction After Boumediene, Zainab A. Cheema

Fordham Law Review

In the last two decades, the U.S. Supreme Court has actively grappled with balancing the interests of immigrant detainees and the federal government in the context of prolonged immigration detention by reconciling the statutory framework with constitutional guarantees of due process. The Court has focused on how prolonged detention without an opportunity for an individualized custody determination poses a serious constitutional threat to an alien’s liberty interest. The Court’s jurisprudence has focused, however, on aliens who have effected an entry into the United States. The constitutional entitlements of nonresidents who are detained upon presenting themselves at the ...


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