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

Constitutional Law Commons

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

20650 Full-Text Articles 10266 Authors 6881648 Downloads 168 Institutions

All Articles in Constitutional Law

Faceted Search

20650 full-text articles. Page 1 of 477.

Domicile, Student Voters And The Constitution, John M. Greabe 2017 University of New Hampshire School of Law

Domicile, Student Voters And The Constitution, John M. Greabe

Legal Scholarship

[Excerpt] "The wisdom of using the Electoral College to choose our president is a hot topic. For the second time in 16 years (and the fifth time in our history), the "winner" of the national popular vote lost the presidential election in the Electoral College. To many, this "undemocratic" outcome seems wrong."


The Age Of Constitutions In The Americas, M C. Mirow 2017 Florida International University College of Law

The Age Of Constitutions In The Americas, M C. Mirow

M. C. Mirow

The late eighteenth and nineteenth centuries have been aptly called the “Age of Codifications.” The same period was also the Age of Constitutions. Although a great deal is known about the migration of prenational and transnational legal sources and ideas that led to national codes of civil and criminal law in Europe and the Americas, much less is known about similar processes on the constitutional level. Constitutional historians have been more parochial than their private law counterparts, most likely because of the relationship between constitutions and nations. In the light of independence, nations immediately needed constitutions to solidify gains and ...


Pass Parallel Privacy Standards Or Privacy Perishes, Anne T. McKenna 2017 Penn State Law

Pass Parallel Privacy Standards Or Privacy Perishes, Anne T. Mckenna

Anne T. McKenna

No abstract provided.


Free, Prior, And Informed Consent And Reconciliation In Canada: Proposals To Implement Articles 19 And 32 Of The Un Declaration On The Rights Of Indigenous Peoples, Sasha Boutilier 2017 University of Toronto

Free, Prior, And Informed Consent And Reconciliation In Canada: Proposals To Implement Articles 19 And 32 Of The Un Declaration On The Rights Of Indigenous Peoples, Sasha Boutilier

Western Journal of Legal Studies

Canadian Prime Minister Justin Trudeau has repeatedly promised to meet the Indian Residential School Truth and Reconciliation Commission’s recommendation to implement the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) as a framework for reconciliation. This commitment is significant as Canada’s position on UNDRIP has been highly contested. In particular, the compatibility of UNDRIP’s Free, Prior, and Informed Consent (FPIC) standard with Canadian law has been repeatedly called into question. This work evaluates the possibility and importance of implementing FPIC in Canada. It begins with an overview of FPIC internationally and of FPIC in relation ...


Algorithms, Expression And The Charter: A Way Forward For Canadian Courts, Veenu Goswami 2017 University of Toronto, Faculty of Law

Algorithms, Expression And The Charter: A Way Forward For Canadian Courts, Veenu Goswami

Western Journal of Legal Studies

As a result of rapid advances in technology and computer programming, algorithms are increasingly able to generate expressive material. In light of these advances, it is inevitable that courts will be asked to determine whether this algorithmically generated content is protected expression under section 2(b) of the Canadian Charter of Rights and Freedoms. Although algorithmically generated content can serve many of the same constitutionally-protected purposes as human expression, this paper explains why the Supreme Court of Canada’s current framework is inadequate for use in the context of algorithmically generated content. This paper offers a proactive and principled solution ...


What Constitutes "Custody" Under Miranda?: An Examination Of Maine's Test As Applied In State V. Kittredge, Elizabeth L. Tull 2017 University of Maine School of Law

What Constitutes "Custody" Under Miranda?: An Examination Of Maine's Test As Applied In State V. Kittredge, Elizabeth L. Tull

Maine Law Review

In recent years, the Maine Supreme Judicial Court, sitting as the Law Court, has issued several opinions addressing whether a defendant’s statements are admissible when made to law enforcement in the absence of “Miranda warnings.” These cases have similar features: a defendant made a personally incriminating statement; raised an appeal arguing that Miranda warnings should have been, but were not, read to him or her; and the Court—in many cases—determined that the defendant was not technically in police custody, and thus there was no requirement to recite Miranda warnings to him or her. Miranda warnings are an ...


State V. Lovejoy: Should Pre-Arrest, Pre-Miranda Silence Be Admissible During The State's Case-In-Chief As Substantive Evidence Of Guilt?, Mark Rucci 2017 University of Maine School of Law

State V. Lovejoy: Should Pre-Arrest, Pre-Miranda Silence Be Admissible During The State's Case-In-Chief As Substantive Evidence Of Guilt?, Mark Rucci

Maine Law Review

Article 1, section 6 of Maine Constitution reads in part that “[t]he accused shall not be compelled to give evidence against himself or herself, nor be deprived of life, liberty, property, or privileges . . . .” Further, the Law Court has held that “the State constitutional protection against self-incrimination is the equivalent of the Fifth Amendment." However, as with most provisions of the Constitution, the protection against self-incrimination is open to interpretation. While the Supreme Court has answered some questions surrounding the Fifth Amendment’s protections, it has left many decisions regarding its scope largely within the purview of the states. As ...


Rwu First Amendment Blog: David Logan's Blog: Moguls And The Media 1-2-2017, David A. Logan, Roger Williams University 2017 Roger Williams University School of Law

Rwu First Amendment Blog: David Logan's Blog: Moguls And The Media 1-2-2017, David A. Logan, Roger Williams University

Law School Blogs

No abstract provided.


A Missed Opportunity To Clarify Students' First Amendment Rights In The Digital Age, Elizabeth Shaver 2017 The University of Akron

A Missed Opportunity To Clarify Students' First Amendment Rights In The Digital Age, Elizabeth Shaver

Akron Law Publications

In the last decade, the federal circuit courts have grappled with the issue whether, and to what extent, school officials constitutionally may discipline students for their off-campus electronic speech. Before 2015, three federal circuit courts had extended school authority to off-campus electronic speech by applying a vague test that allows school officials to reach far beyond the iconic “schoolhouse gate” referenced in the Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) Two other federal circuits had avoided the issue altogether by deciding the cases before them on other grounds ...


Recent Applications Of The Supreme Court's Hands-Off Approach To Religious Doctrine: From Hosanna-Tabor And Holt To Hobby Lobby And Zubik, Samuel J. Levine 2017 Touro Law Center

Recent Applications Of The Supreme Court's Hands-Off Approach To Religious Doctrine: From Hosanna-Tabor And Holt To Hobby Lobby And Zubik, Samuel J. Levine

Scholarly Works

In each of the past four terms, the United States Supreme Court has decided a case with important implications for the interpretation and application of the Religion Clauses of the United States Constitution: Hosanna-Tabor Evangelical Lutheran Church & Sch. v. EEOC, Burwell v. Hobby Lobby, Inc., Holt v. Hobbs, and, most recently, Zubik v. Burwell. Although the Court’s decisions in these cases addressed—and seemed to resolve—a number of questions central to Free Exercise and Establishment Clause jurisprudence, including recognition of the “ministerial exception” and religious rights of a corporate entity, the decisions left a number of questions unanswered ...


The Free Exercise Of Religious Identity, Lauren Sudeall Lucas 2017 Georgia State University College of Law

The Free Exercise Of Religious Identity, Lauren Sudeall Lucas

Faculty Publications By Year

In recent years, a particular strain of argument has arisen in response to decisions by courts or the government to extend certain rights to others. Grounded in religious freedom, these arguments suggest that individuals have a right to operate businesses or conduct their professional roles in a manner that conforms to their religious identity. For example, as courts and legislatures have extended the right to marry to same-sex couples, court clerks have refused to issue marriage certificates to such couples, claiming that to do so would violate their religious beliefs. Similarly, corporations have refused, for reasons grounded in religious identity ...


Does The Constitution Allow President To Ban Muslims?, John M. Greabe 2017 University of New Hampshire School of Law

Does The Constitution Allow President To Ban Muslims?, John M. Greabe

Legal Scholarship

[Excerpt] "The president-elect has stated that he intends to protect national security by banning Muslim immigration into the United States. He also has signaled an openness to some form of Muslim registration program. Does the Constitution impose barriers to the adoption of such policies?"


Reciprocal Legitimation In The Federal Courts System: Racial Segregation, Reapportionment, And Obergefell Appendix A, Neil S. Siegel 2017 Duke Law School

Reciprocal Legitimation In The Federal Courts System: Racial Segregation, Reapportionment, And Obergefell Appendix A, Neil S. Siegel

Faculty Scholarship

Much scholarship in law and political science has long understood the U.S. Supreme Court to be the “apex” court in the federal judicial system, and so to relate hierarchically to “lower” federal courts. On that top-down view, exemplified by the work of Alexander Bickel and many subsequent scholars, the Court is the principal, and lower federal courts are its faithful agents. Other scholarship takes a bottom-up approach, viewing lower federal courts as faithless agents or analyzing the “percolation” of issues in those courts before the Court decides. This Article identifies circumstances in which the relationship between the Court and ...


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 ...


Construction, Originalist Interpretation And The Complete Constitution, Richard Kay 2016 Selected Works

Construction, Originalist Interpretation And The Complete Constitution, Richard Kay

Richard Kay

 In recent years, the literature of constitutional originalism has adopted a new concept, “constitutional construction.” This Essay critically examines that concept. Contrary to some claims, the difference between “interpretation” and “construction” is not well established in common law adjudication. Furthermore, contemporary descriptions of constitutional construction tend to leave some ill-defined discretion in the hands of constitutional decision-makers. Finally, the Essay disputes the claim that constitutional construction is indispensable because the constitutional text is incomplete, that failing to provide a decision-rule for many—indeed for most—constitutional disputes. The Constitution would indeed be incomplete if interpreted according to the “new” or ...


Forfeitures And The Eighth Amendment: A Practical Approach To The Excessive Fines Clause As A Check On Government Seizures, David Pimentel 2016 University of Idaho College of Law

Forfeitures And The Eighth Amendment: A Practical Approach To The Excessive Fines Clause As A Check On Government Seizures, David Pimentel

David Pimentel

Civil forfeiture procedure, notwithstanding reform-oriented legislation in 2000, continues to generate controversy, as it permits law enforcement to seize assets based on alleged or suspected wrongdoing, without adequate protection for property owners. The Supreme Court has consistently upheld them against due process challenges, but in 1998 acknowledged that forfeitures may violate the Excessive Fines Clause of the Eighth Amendment. The test proposed in that case, U.S. v. Bajakajian, was drawn from the Cruel and Unusual Punishment Clause: that a forfeiture violates the Eighth Amendment if it is “grossly disproportional” to the gravity of the offense. This test has been ...


Justices As Sacred Symbols: Antonin Scalia And The Cultural Life Of The Law, Brian Christopher Jones, Austin Sarat 2016 Liverpool Hope University, UK

Justices As Sacred Symbols: Antonin Scalia And The Cultural Life Of The Law, Brian Christopher Jones, Austin Sarat

Brian Christopher Jones

The idea of the brilliant and elegant philosopher judge has a long and romanticized history. From Sir Edward Coke, William Blackstone and Joseph Story to Oliver Wendell Holmes, Louis Brandeis and Lord Bingham, the common law is replete with this vision of judging. In this vision, judges sometimes seem to be law makers as much as faithful it interpreters. In many ways Antonin Scalia fought against this traditional vision of the philosopher judge. He disliked activist judges who imposed their idea of wisdom on elected legislatures; in fact, he trumpeted his jurisprudence for its fidelity to law and deference to ...


Change It To Save It: Why And How To Amend Article 9, Craig Martin 2016 Washburn University School of Law

Change It To Save It: Why And How To Amend Article 9, Craig Martin

Craig Martin

Defenders of Article 9 of the Constitution of Japan, which renounces the use of force and prohibits the maintenance of armed forces, have consistently worked to block any and all attempts to amend the provision. The government of Japan, having purported to “reinterpret” the provision in 2015, is now well positioned to finally achieve its goal of forcing some form of amendment. This article argues that the champions of Article 9 must, in order to save its most successful and core features, begin to develop alternative proposals for its amendment.

The article begins with a review of the meaning and ...


Separation Of Church And State Or Disparate Treatment? An Analysis Of The Religious Freedom And Discrimination Concerns In Trinity Lutheran Church Of Columbia, Inc. V. Pauley, Michael Petherick 2016 University of Tennessee, Knoxville

Separation Of Church And State Or Disparate Treatment? An Analysis Of The Religious Freedom And Discrimination Concerns In Trinity Lutheran Church Of Columbia, Inc. V. Pauley, Michael Petherick

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.


Roe V. Wade: The Case That Changed Democracy, Adam Lamparello, Cynthia Swann 2016 Indiana Tech Law School

Roe V. Wade: The Case That Changed Democracy, Adam Lamparello, Cynthia Swann

Tennessee Journal of Race, Gender, & Social Justice

No abstract provided.


Digital Commons powered by bepress