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

Constitutional Law Commons

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

20117 Full-Text Articles 9933 Authors 6083491 Downloads 164 Institutions

All Articles in Constitutional Law

Faceted Search

20117 full-text articles. Page 1 of 466.

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 ...


Constitutional Change And Wade's Ultimate Political Fact, Richard Kay 2016 Selected Works

Constitutional Change And Wade's Ultimate Political Fact, Richard Kay

Richard Kay

This is a retrospective review of H.W.R. Wades classic article on parliamentary sovereignty in the United Kingdom, The Basis of Legal Sovereignty, published in 1955. I discuss the legal background against which the essay was written and particularly the South African case of Harris v. Minister of the Interior that was the centerpiece of Wade’s analysis. I survey Wade’s differences with Ivor Jennings, the leading figure among the then active academic defenders of Parliament’s power to impose “manner and form” limitations on future parliaments. I also compare Wade’s identification of an “ultimate political fact ...


The Dual Meaning Of Evidence-Based Judicial Review Of Legislation, Ittai Bar-Siman-Tov 2016 Bar-Ilan University

The Dual Meaning Of Evidence-Based Judicial Review Of Legislation, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

This article contributes to the nascent debate about the globally emerging, yet largely undefined, phenomenon of evidence-based judicial review of legislation, by offering a novel conceptualization of evidence-based judicial review.

It argues that evidence-based judicial review can have two related, but very different, meanings: one in which the judicial decision determining constitutionality of legislation is a product of independent judicial evidence-based decision-making; and the other in which the judicial decision on constitutionality of legislation focuses on evidence about the question of whether the legislation was a product of legislative evidence-based decision-making. 

The article then employs this novel insight about the ...


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 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 v ...


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 M. Greabe 2016 Franklin Pierce Law Center

The Riddle Of Harmless Error Revisited, John M. 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.


The Political Branches And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia 2016 Notre Dame Law School

The Political Branches And The Law Of Nations, Bradford R. Clark, Anthony J. Bellia

Anthony J. Bellia

In the late eighteenth and early nineteenth centuries, the U.S. Supreme Court went out of its way to follow background rules of the law of nations, particularly the law of state-state relations. As we have recently argued, the Court followed the law of nations because adherence to such law preserved the constitutional prerogatives of the political branches to conduct foreign relations and decide momentous questions of war and peace. Although we focused primarily on the extent to which the Constitution obligated courts to follow the law of nations in the early republic, the explanation we offered rested on an ...


Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel 2016 Notre Dame Law School

Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel

Randy J Kozel

More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence. This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that ...


Law, Religion, And Politics: Understanding The Separation Of Church And State, Richard Garnett 2016 University of Notre Dame Law School

Law, Religion, And Politics: Understanding The Separation Of Church And State, Richard Garnett

Richard W Garnett

Professor Richard Garnett, of University of Notre Dame Law School, presented on the topic Law, Religion, and Politics: Understanding the Separation of Church and State. This workshop was presented as part of the Hesburgh Lecture Series through the Alumni & Friends of University of Notre Dame and was co-sponsored by the Notre Dame Alumni Club of Miami. This workshop examined how to understand the Constitution's "separation of church and state" and what it requires of religious believers and institutions.


Standing, Spending, And Separation: How The No-Establishment Rule Does (And Does Not) Protect Conscience, Richard W. Garnett 2016 Selected Works

Standing, Spending, And Separation: How The No-Establishment Rule Does (And Does Not) Protect Conscience, Richard W. Garnett

Richard W Garnett

No abstract provided.


Introduction: Religion, Division, And The Constitution, Richard W. Garnett 2016 Notre Dame Law School

Introduction: Religion, Division, And The Constitution, Richard W. Garnett

Richard W Garnett

No abstract provided.


Bond And The Vienna Rules, Roger P. Alford 2016 Notre Dame Law School

Bond And The Vienna Rules, Roger P. Alford

Roger P. Alford

No abstract provided.


Lower Courts And Constitutional Comparativism, Roger P. Alford 2016 Notre Dame Law School

Lower Courts And Constitutional Comparativism, Roger P. Alford

Roger P. Alford

The issue of constitutional comparativism has been a topic of significant commentary in recent years. However, there is one aspect of this subject that has been almost completely ignored by scholars: the reception, or lack thereof, of constitutional comparativism by state and lower federal courts. While the Supreme Court's enthusiasm for constitutional comparativism has waxed and now waned, lower state and federal courts have remained resolutely agnostic about this new movement. This is of tremendous practical significance because over ninety-nine percent of all cases are resolved by lower state and federal courts. Accordingly, if the lower courts eschew constitutional ...


A Word For The Common Good, Thomas L. Shaffer 2016 Selected Works

A Word For The Common Good, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.


A Word For The Common Good, Thomas L. Shaffer 2016 Selected Works

A Word For The Common Good, Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.


Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason McAward 2016 Selected Works

Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward

Jennifer Mason McAward

No abstract provided.


The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch 2016 University of Pennsylvania Law School

The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch

Jill Fisch

No abstract provided.


I Can See Clearly Now: Videoconference Hearings And The Legal Limit On How Tribunals Allocate Resources, Lorne Sossin, Zimra Yetnikoff 2016 Osgoode Hall Law School of York University

I Can See Clearly Now: Videoconference Hearings And The Legal Limit On How Tribunals Allocate Resources, Lorne Sossin, Zimra Yetnikoff

Lorne Sossin

Videoconferencing has generated ambivalence in the legal community. Some have heralded its promise of unprecedented access to justice, expecialy for geographicaly remote communities. Others, however, have questioned whether videoconferencing undermines fairness. The authors explore the impl'cations of videoconferencing through the case study of the Ontario Landlord and Tenant Tribunal, which is one of the busiest adjudicative bodies in Canada. This anaysis hig hghts concerns both with videoconferendng in princp4 and in practice. While such concerns traditionally have been the province of public administration, the authors argue that a tribunals allocation of resources and the suffidengy of its budget are ...


I Can See Clearly Now: Videoconference Hearings And The Legal Limit On How Tribunals Allocate Resources, Lorne Sossin, Zimra Yetnikoff 2016 Osgoode Hall Law School of York University

I Can See Clearly Now: Videoconference Hearings And The Legal Limit On How Tribunals Allocate Resources, Lorne Sossin, Zimra Yetnikoff

Lorne Sossin

Videoconferencing has generated ambivalence in the legal community. Some have heralded its promise of unprecedented access to justice, expecialy for geographicaly remote communities. Others, however, have questioned whether videoconferencing undermines fairness. The authors explore the impl'cations of videoconferencing through the case study of the Ontario Landlord and Tenant Tribunal, which is one of the busiest adjudicative bodies in Canada. This anaysis hig hghts concerns both with videoconferendng in princp4 and in practice. While such concerns traditionally have been the province of public administration, the authors argue that a tribunals allocation of resources and the suffidengy of its budget are ...


Digital Commons powered by bepress