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

Constitutional Law Commons

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

20016 Full-Text Articles 9866 Authors 6083491 Downloads 164 Institutions

All Articles in Constitutional Law

Faceted Search

20016 full-text articles. Page 1 of 461.

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 ...


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 ...


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.


Whistleblowing And Freedom Of Conscience: Towards A New Legal Analysis, Richard Haigh, Peter Bowal 2016 Osgoode Hall Law School of York University

Whistleblowing And Freedom Of Conscience: Towards A New Legal Analysis, Richard Haigh, Peter Bowal

Richard Haigh

Most of us have an instinctive understanding of what “whistleblowing” is: the act of alerting the public to scandal, danger, malpractice, corruption or other immoral or unethical behaviour. For a long time, whistleblowers were treated poorly – today, they are now acknowledged, and sometimes even admired, but there is still some way to go. We believe that a strongly developed and distinct freedom of conscience, as expressed in s. 2(a) of the Canadian Charter of Rights and Freedoms, could go some way towards achieving that goal. In law, however, conscience is often treated as inseparable from religion, without any meaningful ...


Constitutional Revision: Ohio Style, Steven H. Steinglass 2016 Cleveland-Marshall College of Law

Constitutional Revision: Ohio Style, Steven H. Steinglass

Steven H. Steinglass

This Article looks at state constitutional law in a single state—Ohio—and focuses on the history of constitutional revision in it. Consistent with the Symposium’s theme of popular constitutionalism, the Article reviews the expansion—albeit the slow expansion—of the groups that were permitted to participate in the political process in Ohio as well as the expansion and use of the tools available to those seeking constitutional change. As for the substantive constitutional changes that have taken place in Ohio, the Article reviews them summarily, primarily to put the topic of constitutional revision in context.

To understand constitutional ...


Brief Of Amicus Curiae Id Software Llc In Support Of Respondents, Paul E. Salamanca, James T. Drakeley, D. Wade Cloud Jr., Kevin J. Keith, J. Griffin Lesher, Amy Yeung 2016 University of Kentucky College of Law

Brief Of Amicus Curiae Id Software Llc In Support Of Respondents, Paul E. Salamanca, James T. Drakeley, D. Wade Cloud Jr., Kevin J. Keith, J. Griffin Lesher, Amy Yeung

Paul E. Salamanca

No abstract provided.


Motion For Leave To File Brief And Brief Of The National Taxpayers Union, The Nevada Manufacturers Association, The Howard Jarvis Taxpayers Foundation, Americans For Limited Government, Americans For Tax Reform, The Club For Growth, Nevada Corporate Headquarters, Inc., The Nevada Motor Transport Association, The Retail Association Of Nevada, And The Reno-Sparks Chamber Of Commerce, As Amici Curiae In Support Of Petitioners, Paul E. Salamanca 2016 University of Kentucky College of Law

Motion For Leave To File Brief And Brief Of The National Taxpayers Union, The Nevada Manufacturers Association, The Howard Jarvis Taxpayers Foundation, Americans For Limited Government, Americans For Tax Reform, The Club For Growth, Nevada Corporate Headquarters, Inc., The Nevada Motor Transport Association, The Retail Association Of Nevada, And The Reno-Sparks Chamber Of Commerce, As Amici Curiae In Support Of Petitioners, Paul E. Salamanca

Paul E. Salamanca

No abstract provided.


Some Realistic Thinking About Secular Effects, Paul E. Salamanca 2016 University of Kentucky College of Law

Some Realistic Thinking About Secular Effects, Paul E. Salamanca

Paul E. Salamanca

Notwithstanding complaints about incoherence in Establishment Clause doctrine, courts by and large administer the Clause responsibly. They do so by mediating between a number of powerful considerations, none of which can ever be entirely disregarded. These considerations include, but are not limited to, separation of church and state, the value of religiosity, the imperative of affording equal treatment to religious and similarly situated nonreligious entities, and the proper role of courts in a democratic political system. This is not to say that courts cannot overstep their bounds and provoke an adverse reaction from other powerful elements within the polity. It ...


Snyder V. Phelps: A Hard Case That Did Not Make Bad Law, Paul E. Salamanca 2016 University of Kentucky College of Law

Snyder V. Phelps: A Hard Case That Did Not Make Bad Law, Paul E. Salamanca

Paul E. Salamanca

In Snyder v. Phelps, the Court stood by the First Amendment in hard times. A religious group conducted a protest some 1,000 feet from a fallen marine's funeral, holding such pickets as “God Hates the USA,” “Thank God for Dead Soldiers,” and “You're Going to Hell.” Despite the empathy that virtually anyone would feel for the marine's grieving father, the Court held by a vote of eight to one that his action for intentional infliction of emotional distress and intrusion upon seclusion could not survive, owing largely to the public nature of the issues the protesters ...


Quo Vadis: The Continuing Metamorphosis Of The Establishment Clause Toward Realistic Substantive Neutrality, Paul E. Salamanca 2016 University of Kentucky College of Law

Quo Vadis: The Continuing Metamorphosis Of The Establishment Clause Toward Realistic Substantive Neutrality, Paul E. Salamanca

Paul E. Salamanca

For years, the rhetoric of substantive neutrality has dominated interpretation of the Establishment Clause. Under this approach, courts and commentators purport to ask whether a public policy under scrutiny is likely to affect religious choices in an unacceptable way. In fact, so broadly has this approach been taken that both separationists and accommodationists resort to it freely, although with radically differing perceptions as to when policy becomes unacceptable. Arguably, however, adherents to this approach have paid insufficient attention to religious behavior per se. Had they paid sufficient attention to this phenomenon, they would have been forced to acknowledge that little ...


Prior Restraint In Wartime, Paul E. Salamanca 2016 University of Kentucky College of Law

Prior Restraint In Wartime, Paul E. Salamanca

Paul E. Salamanca

In this article for Bench & Bar Magazine (the Kentucky Bar Association's magazine), Professor Paul E. Salamanca discusses the First Amendment during times of war or conflict.


Picturing Moral Arguments In A Fraught Legal Arena: Fetuses, Photographic Phantoms And Ultrasounds, Jessica M. Silbey 2016 Northeastern University

Picturing Moral Arguments In A Fraught Legal Arena: Fetuses, Photographic Phantoms And Ultrasounds, Jessica M. Silbey

Jessica Silbey

This article investigates the movement in the U.S. that seeks to regulate the abortion decision by mandating ultrasounds prior to the procedure. The article argues that this reform effort is misguided not only because it is ineffective, but also because ultrasounds provide misleading information and are part of shaming practices that degrade the dignity of women. Both of these problems violate the main tenets of Planned Parenthood of Southern Pennsylvania v. Casey (1992). Central to the article’s argument and novelty is that the pro-ultrasound movement’s mistake is both legal and cultural. It misunderstands the nature of visual ...


Images In/Of Law, Jessica M. Silbey 2016 Suffolk University

Images In/Of Law, Jessica M. Silbey

Jessica Silbey

The proliferation of images in and of law lends itself to surprisingly complex problems of epistemology and power. Understanding through images is innate; most of us easily understand images without thinking. But arriving at mutually agreeable understandings of images is also difficult. Translating images into shared words leads to multiple problems inherent in translation and that pose problems for justice. Despite our saturated imagistic culture, we have not established methods to pursue that translation process with confidence. This article explains how images are intuitively understood and yet collectively inscrutable, posing unique problems for resolving legal conflicts that demand common and ...


Singapore’S Elected President: An Office That Is Still Evolving, Jack Tsen-Ta Lee 2016 Singapore Management University

Singapore’S Elected President: An Office That Is Still Evolving, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

Constitutional changes effected to Singapore’s Constitution in 1991 transformed the office of President from a purely ceremonial one chosen by the Parliament, to one directly elected by the people exercising certain discretionary powers. Among other things, the President may now veto attempts by the Government to deplete the nation’s past financial reserves, and to effect unsuitable appointments to or dismissals of key public officers. Now, the Government is proposing to tweak the system further.


Foreword, Jamie Cameron 2016 Osgoode Hall Law School of York University

Foreword, Jamie Cameron

Jamie Cameron

No abstract provided.


Law, Politics, And Legacy Building At The Mclachlin Court In 2014, Jamie Cameron 2016 Osgoode Hall Law School of York University

Law, Politics, And Legacy Building At The Mclachlin Court In 2014, Jamie Cameron

Jamie Cameron

This Article was written for Osgoode Hall Law School’s annual Constitutional Cases conference, and provides the keynote overview of the McLachlin Court’s 2014 constitutional jurisprudence. The Court’s 2014 constitutional decisions (Appointment and Senate References; Tsilqot’in Nation; Trial Lawyers) and restrictions on Mr. Big operations (Hart), in combination with a tsunami of Charter decisions early in 2015 (the 2015 Labour Trilogy; Carter v. Canada; R. v. Nur; and others), made this a legacy-building year. More than an overview, this Article probes the nature of the McLachlin Court’s legacy this year and the relationship between legal and ...


Note: Constitutional Aspects Of Sunday Closing Laws, 2016 St. John's University School of Law

Note: Constitutional Aspects Of Sunday Closing Laws

The Catholic Lawyer

No abstract provided.


Digital Commons powered by bepress