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Constructed Constraint And The Constitutional Text, Curtis A. Bradley, Neil S. Siegel 2015 Duke Law

Constructed Constraint And The Constitutional Text, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be built upon, or “constructed,” by various materials. This Article, by contrast, focuses on the role of the constitutional text itself, and in doing so employs an older, more interpretive understanding of constitutional “construction.” Under some accounts, the text plays a minor role. On this view, interpreters may invoke the text rhetorically, but it does not constrain their interpretations. These critical accounts can be contrasted with strictly textualist theories, which maintain that constitutional interpretation derives ...


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 2014 SelectedWorks

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

ABSTRACT

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 ...


Emerging Patterns Of Global Constitutionalization: Toward A Conceptual Framework, Karolina Milewicz 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 ...


Unpopular Constitutionalism, Mila Versteeg 2014 Maurer School of Law: Indiana University

Unpopular Constitutionalism, Mila Versteeg

Indiana Law Journal

Constitutions are commonly thought to express nations’ highest values. They are often proclaimed in the name of “We the People” and are regarded—by scholars and the general public alike—as an expression of the people’s views and values. This Article shows empirically that this widely held image of constitutions does not correspond with the reality of constitution making around the world. The Article contrasts the constitutional-rights choices of ninety countries between 1981 and 2010 with data from nearly one-half million survey responses on cultural, religious, and social values conducted over the same period. It finds, surprisingly, that in ...


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 2014 SelectedWorks

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 Shadows Behind The Law: An Overview Of The Legal System In Ghana, Prince Opoku Agyemang 2014 SelectedWorks

The Shadows Behind The Law: An Overview Of The Legal System In Ghana, Prince Opoku Agyemang

Prince Opoku Agyemang

A good decision making process is one of the most important pillars of good governance. In our everyday life, we need to follow and understand the decision-making process of government and how they are consistent with relevant legal provision or our common laws more especially within the powers of the three arms of government. When government decisions are consistent with the relevant legislation and operates within the limit of the power given, embedded with a fair legal frameworks that are enforced by an impartial regulatory body for the protection of its stakeholders, then we can bodily ascertain that rule of ...


Suspicionless Searches: U.S. V. King And The Ninth Circuit’S Dismissal Of The Probationer-Parolee Distinction, Tricia Nicholson 2014 Boston College Law School

Suspicionless Searches: U.S. V. King And The Ninth Circuit’S Dismissal Of The Probationer-Parolee Distinction, Tricia Nicholson

Boston College Journal of Law & Social Justice

In U.S. v. King, the U.S. Court of Appeals for the Ninth Circuit considered whether a suspicionless search of a probationer, conducted pursuant to a condition of his probation, violated the Fourth Amendment. The Ninth Circuit held that the search did not violate the Fourth Amendment because legitimate governmental interests outweighed the probationer’s privacy interest. In conducting the balancing test, however, the court failed to give significance to the distinction between probationers and parolees for Fourth Amendment purposes and used an analysis that overrides any individual privacy interest that a probationer may have.


Remedying The Remedy: Johnson V. Uribe And Determining Prejudice For Sixth Amendment Claims, Keith Kessinger 2014 Boston College Law School

Remedying The Remedy: Johnson V. Uribe And Determining Prejudice For Sixth Amendment Claims, Keith Kessinger

Boston College Journal of Law & Social Justice

On November 5, 2012, the Ninth Circuit Court of Appeals declined to rehear Kennard G. Johnson’s habeas petition en banc, thus upholding the appellate panel’s decision to vacate his guilty plea for want of effective assistance of counsel, which overturned the district court’s resentencing remedy. The panel worked within the standard of review to establish prejudice during the plea negotiations, which provided not only an appropriate remedy but also a pragmatic framework for lower courts to assess similar claims of ineffective assistance of counsel. In dissent to the denial of rehearing en banc, Chief Judge Alex Kozinski ...


Getting Under Your Skin: How Far Can The Courts Go?, Lauren Hanley-Brady 2014 California Western School of Law

Getting Under Your Skin: How Far Can The Courts Go?, Lauren Hanley-Brady

Lauren Hanley-Brady

This paper discusses the constitutional issues implicated when (or if) a court enforces copyright remedies against an individual for a tattoo deemed as infringing another's copyright. Starting by questioning the applicability of the First Amendment's protection on tattoos of copyrighted characters as speech, this paper uses three illustrative hypotheticals to assess the validity of a free speech/freedom of expression claim against the copyright owner. The analysis then proceeds into a discussion of Fourth and Fifth Amendment issues with regards to enforcing a copyright injunction, which could include either requiring the covering up of a tattoo or requiring ...


Confusing Regulatory Takings With Regulatory Exactions: The Supreme Court Gets Lost In The Swamp Of Koontz, Israel Piedra 2014 Boston College Law School

Confusing Regulatory Takings With Regulatory Exactions: The Supreme Court Gets Lost In The Swamp Of Koontz, Israel Piedra

Boston College Environmental Affairs Law Review

In 2013, the Supreme Court concluded that monetary exactions must be considered with the same judicial scrutiny as land exactions. Land exactions are required contributions from an individual to a government entity in exchange for approval to develop real property. Land exactions proposed by regulatory bodies must be roughly proportional and bear a nexus to the development permit requested, otherwise the exaction constitutes a taking in violation of the Fifth Amendment. In Koontz v. St. Johns River Management District, the Supreme Court extended the nexus/rough proportionality test to instances in which government bodies impose monetary conditions on land development ...


Will Arkansas Game & Fish Commission V. United States Provide A Permanent Fix For Temporary Takings?, Brian T. Hodges 2014 Boston College Law School

Will Arkansas Game & Fish Commission V. United States Provide A Permanent Fix For Temporary Takings?, Brian T. Hodges

Boston College Environmental Affairs Law Review

The U.S. Supreme Court’s decision in Arkansas Game & Fish Commission v. United States recognized that any government action that interferes with the enjoyment and use of private property—whether permanent or temporary in duration—can give rise to a claim under the Takings Clause of the Fifth Amendment. Yet dicta in the decision left many pondering whether significantly different tests will apply depending on the duration of the government invasion. This Article reviews the state of the law regarding temporary physical takings both before and after Arkansas Game & Fish with particular regard to the test applicable to physical ...


Carbon Outlasts The Law: States Walk The Constitutional Line, Steven Ferrey 2014 Boston College Law School

Carbon Outlasts The Law: States Walk The Constitutional Line, Steven Ferrey

Boston College Environmental Affairs Law Review

State carbon policies to control climate warming and our energy future are under legal attack. A successful barrage of litigation now invokes the dormant Commerce Clause and the Federal Power Act as interpreted through the Filed Rate Doctrine, as well as the Supremacy Clause of the U.S. Constitution, to challenge the legal validity and sustainability of these state carbon-based laws. California and other states have survived these legal challenges sparingly, and then often only by prevailing with procedural defenses that dismiss the case before a decision on the legal merits of their state energy regulation. This Article examines and ...


La Lucha Del Derecho Contra El Negacionismo: Una Peligrosa Frontera. Particular Estudio De Los Ordenamientos Italiano Y Español, Germán M. Teruel Lozano 2014 SelectedWorks

La Lucha Del Derecho Contra El Negacionismo: Una Peligrosa Frontera. Particular Estudio De Los Ordenamientos Italiano Y Español, Germán M. Teruel Lozano

Germán M. Teruel Lozano

The struggle of the Law against negationism: a dangerous border. Particular study of the Spanish and Italian legal system (PhD. Thesis) - The document content an abstract of the thesis in English, Spanish and Italian.


Prenatal Torts: Reproductive Rights With Teeth, Andrew H. Jones 2014 SelectedWorks

Prenatal Torts: Reproductive Rights With Teeth, Andrew H. Jones

Andrew H Jones

The purpose of tort law is to restore the plaintiff to the position he or she would have occupied had the complained of injury not occurred. To this end, the measure of damages is the amount which will compensate for all detriment proximately caused. But, when the causal link between the wrong and injury is abortion, and the harm relates to the existence of a human life, the issue of recovery becomes complicated. The difficulty of the issue is aggravated by the existence of conflicting principles, such as protecting a constitutionally recognized right to refrain from procreation, and maintaining the ...


Recent Developments In The Use Of Excessive Force By Law Enforcement, Karen M. Blum, Jack Ryan 2014 Touro College Jacob D. Fuchsberg Law Center

Recent Developments In The Use Of Excessive Force By Law Enforcement, Karen M. Blum, Jack Ryan

Touro Law Review

No abstract provided.


Whistleblowing And Free Speech: Garcetti's Early Progeny And Shrinking Constitutional Rights Of Public Employees, J. Michael McGuinness 2014 Touro College Jacob D. Fuchsberg Law Center

Whistleblowing And Free Speech: Garcetti's Early Progeny And Shrinking Constitutional Rights Of Public Employees, J. Michael Mcguinness

Touro Law Review

No abstract provided.


The Qualified Immunity Defense: What's “Clearly Established” And What's Not, Karen M. Blum 2014 Touro College Jacob D. Fuchsberg Law Center

The Qualified Immunity Defense: What's “Clearly Established” And What's Not, Karen M. Blum

Touro Law Review

No abstract provided.


Absolute Immunity: General Principles And Recent Developments, Erwin Chemerinsky 2014 Touro College Jacob D. Fuchsberg Law Center

Absolute Immunity: General Principles And Recent Developments, Erwin Chemerinsky

Touro Law Review

No abstract provided.


The Presentment Clause Meets The Suspension Power: The Affordable Care Act’S Long And Winding Road To Implementation, Mitchell Widener 2014 SelectedWorks

The Presentment Clause Meets The Suspension Power: The Affordable Care Act’S Long And Winding Road To Implementation, Mitchell Widener

Mitchell Widener

The presentment clause MEETs the Suspension Power: The Affordable Care Act’s Long and Winding Road to Implementation

Mitchell J. Widener

Abstract

To enact a law, the Presentment Clause of the Constitution mandates that both Houses of Congress present a bill to the President who either signs it into law or vetoes it. The Founders included this provision to prevent presidents from emulating King James II, who would routinely suspend Parliament’s laws to favor political constituents. Additionally, the Presentment Clause served to enhance the separation-of-powers principle implied in the Constitution.

Within the past year, President Obama has suspended multiple ...


Exotic Dancing: Taxable Trash Or Exempt Art, John O. Hayward 2014 SelectedWorks

Exotic Dancing: Taxable Trash Or Exempt Art, John O. Hayward

John O. Hayward

Exotic dancers usually embroil themselves in censorship battles with local authorities. But recently they have drawn the attention of tax authorities who have tussled with the owners of so-called “gentlemen’s clubs” over whether the exotic dancing performed in their establishments are subject to taxation. This paper examines two recent cases where state authorities choose to tax exotic dancing while at the same time exempting what some jurists regard as comparable choreographic performances. In the opinion of these commentators, the tax authorities exhibited a bias against low-brow artistic expression, thus engaging in impermissible content discrimination. It advances the proposition that ...


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