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22,072 full-text articles. Page 2 of 524.

All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes 2018 DePaul University College of Law

All Bathwater, No Baby: Expressive Theories Of Punishment And The Death Penalty, Susan A. Bandes

Michigan Law Review

A review of Carol S. Steiker and Jordan M. Steiker, Courting Death: The Supreme Court and Capital Punishment.


The Cunning Of Reason: Michael Klarman's The Framers' Coup, Charles Fried 2018 Harvard Law School

The Cunning Of Reason: Michael Klarman's The Framers' Coup, Charles Fried

Michigan Law Review

A review of Michael J. Klarman, The Framers' Coup: The Making of the United States Constitution.


Restoring Congress's Role In The Modern Administrative State, Christopher J. Walker 2018 Ohio State University

Restoring Congress's Role In The Modern Administrative State, Christopher J. Walker

Michigan Law Review

A review of Josh Chafetzm Congress's Constitution: Legislative Authority and Separation of Powers.


The People Against The Constitution, Aziz Z. Huq 2018 University of Chicago Law School

The People Against The Constitution, Aziz Z. Huq

Michigan Law Review

A review of Jan-Werner Müller, What Is Populism?.


Speak Your Mind And Ride The Pine: Examining The Constitutionality Of University-Imposed Social Media Bans On Student-Athletes, John Ryan Behrmann 2018 Villanova University Charles Widger School of Law

Speak Your Mind And Ride The Pine: Examining The Constitutionality Of University-Imposed Social Media Bans On Student-Athletes, John Ryan Behrmann

Jeffrey S. Moorad Sports Law Journal

No abstract provided.


Randomized Judicial Review, Andrei Marmor 2018 Selected Works

Randomized Judicial Review, Andrei Marmor

Andrei Marmor

One of the main arguments in support of constitutional judicial review points to the need to curtail the legal and political power of majority rule instantiated by democratic legislative institutions. This article aims to challenge the counter majoritarian argument for judicial review by showing that there is very little difference, at least morally speaking, between the current structure of constitutional judicial review in the US, and a system that would impose limits on majoritarian decisions procedures by an entirely randomized mechanism. The argument is based on a hypothetical model of a randomized system of judicial review, and proceeds to show ...


An Institutional Conception Of Authority, Andrei Marmor 2018 Selected Works

An Institutional Conception Of Authority, Andrei Marmor

Andrei Marmor

The essay develops a conception of practical authorities that ties their legitimacy to the particular nature of the social practice or institution in which practical authorities invariably operate, and the terms of the subjects’ participation in that practice. The main argument of the paper draws on the distinction between what it takes to have practical authority and what would make it legitimate. The general idea is that what it takes to have practical authority is always determined by a social or institutional practice, and thus the legitimacy of any given authority crucially depends on the nature of the practice and ...


Petitioning And The Making Of The Administrative State, Maggie McKinley 2018 University of Pennsylvania Law School

Petitioning And The Making Of The Administrative State, Maggie Mckinley

Faculty Scholarship

The administrative state is suffering from a crisis of legitimacy. Many have questioned the legality of the myriad commissions, boards, and agencies through which much of our modern governance occurs. Scholars such as Jerry Mashaw, Theda Skocpol, and Michele Dauber, among others, have provided compelling institutional histories, illustrating that administrative lawmaking has roots in the early American republic. Others have attempted to assuage concerns through interpretive theory, arguing that the Administrative Procedure Act of 1946 implicitly amended our Constitution. Solutions offered thus far, however, have yet to provide a deeper understanding of the meaning and function of the administrative state ...


The Death Penalty And The Constitution, John M. Greabe 2018 UNH Law School

The Death Penalty And The Constitution, John M. Greabe

Law Faculty Scholarship

[excerpt] The death penalty is back in the news. Last week, President Donald Trump argued that capital punishment should be available to punish drug dealers who have contributed to the opioid crisis. Earlier this month, the New Hampshire Senate voted to prospectively repeal the state's death penalty. These developments provide occasion to review the constitutional issues raised when the federal government or a state seeks to put a convict to death.


Third Circuit Confusion: Ncaa V. Christie And An Opportunity To Defend Federalism, Zachary Buckheit 2018 Duke Law

Third Circuit Confusion: Ncaa V. Christie And An Opportunity To Defend Federalism, Zachary Buckheit

Duke Journal of Constitutional Law & Public Policy Sidebar

NCAA v. Christie will determine whether a federal statute that prevents a state legislature from repealing a previously enacted state law violates the anti-commandeering doctrine. In 2014, New Jersey passed a state law repealing state prohibitions against sports wagering in Atlantic City. Five sports leagues sued New Jersey in federal court. The leagues asserted that the new state law violated the Professional and Amateur Sports Protection Act (“PASPA”), a federal law. New Jersey claimed PASPA violated the anti-commandeering doctrine and was accordingly unconstitutional. The Third Circuit Court of Appeals held that PASPA does not violate the anti-commandeering doctrine because it ...


Husted V. A. Philip Randolph Institute: How Can States Maintain Their Voter Rolls?, Chris Smith 2018 Duke Law

Husted V. A. Philip Randolph Institute: How Can States Maintain Their Voter Rolls?, Chris Smith

Duke Journal of Constitutional Law & Public Policy Sidebar

In Husted v. A. Philip Randolph Institute, the Supreme Court will decide whether the Ohio’s Supplemental Process for maintaining its voter rolls violates the requirements of the National Voter Registration Act (“NVRA”) and the Help America Vote Act (“HAVA”). The Court’s opinion will shape the landscape of voting rights, as many states are struggling to meet the dual mandates of election sanctity and increased voter access. This commentary argues that the Supreme Court can give states a guideline for what is an acceptable process that complies with the conflicting federal policies in the NVRA and HAVA. The Court ...


Patchak V. Zinke, Separation Of Powers, And The Pitfalls Of Form Over Substance, Michael Fisher 2018 Duke Law

Patchak V. Zinke, Separation Of Powers, And The Pitfalls Of Form Over Substance, Michael Fisher

Duke Journal of Constitutional Law & Public Policy Sidebar

Mr. Patchak was a concerned citizen with standing to bring a suit against the federal government. A previous Supreme Court decision, Carcieri v. Salazar, made it clear that Mr. Patchak would win his case. Congress, however, did not want him to do so. Congress passed, and President Obama signed, the Gun Lake Act, which effectively ordered Mr. Patchak’s suit to be dismissed. Mr. Patchak’s suit was subsequently dismissed, and he appealed on the grounds that the Gun Lake Act violated separation of powers principles.


Privacy, Mass Intrusion And The Modern Data Breach, Jon L. Mills, Kelsey Harclerode 2018 University of Florida Levin College of Law

Privacy, Mass Intrusion And The Modern Data Breach, Jon L. Mills, Kelsey Harclerode

Florida Law Review

Massive data breaches have practically become a daily occurrence. These breaches reveal intrusive private information about individuals, as well as priceless corporate secrets. Ashley Madison’s breach ruined lives and resulted in suicides. The HSBC breach, accomplished by one of their own, revealed valuable commercial information about the bank and personal information about HSBC customers. The employee responsible for the breach has since been convicted of aggravated personal espionage, while third-party news outlets have been free to republish the hacked information.

Some information disclosed in data breaches can serve a public purpose. The Snowden disclosures, for example, revealed sensitive government ...


Contextualizing The Free Exercise Of Religion, Adam Lamparello 2018 University of Florida Levin College of Law

Contextualizing The Free Exercise Of Religion, Adam Lamparello

Florida Law Review

The level of protection afforded to an individual’s First Amendment right to freely exercise religion should depend upon the context within which it is exercised. Put differently, an individual’s right to religious liberty should be balanced against other individuals’ right to equal protection of the law, and the broader societal interest in protecting individuals from invidious discrimination. This Article proposes a multifactor test that fully protects the right to freely exercise one’s religion while simultaneously safeguarding equal protection and antidiscrimination guarantees. Specifically, the level of protection afforded to a free exercise claim should depend, among other things ...


Turner-Ing Over A New Leaf: Pre-Charge Plea Negotiations As A Critical Stage For The Purposes Of The Sixth Amendment Right To Counsel, Alexis Berglund 2018 Boston College Law School

Turner-Ing Over A New Leaf: Pre-Charge Plea Negotiations As A Critical Stage For The Purposes Of The Sixth Amendment Right To Counsel, Alexis Berglund

Boston College Law Review

On February 15, 2017, the U.S. Court of Appeals for the Sixth Circuit affirmed that the Sixth Amendment right to counsel does not attach to pre-charge plea negotiations. In so doing, the Sixth Circuit upheld a bright-line rule that the right to counsel does not attach until formal charges have been filed. Two months later, on April 13, 2017, the Sixth Circuit vacated its opinion and granted a rehearing en banc. This Comment argues that pre-charge plea negotiations should be considered a critical stage for the purposes of the Sixth Amendment, and thus defendants should have a Sixth Amendment ...


Being Forced To Code In The Technology Era As A Violation Of The First Amendment Protection Against Compelled Speech, Adrianna Oddo 2018 The Catholic University of America, Columbus School of Law

Being Forced To Code In The Technology Era As A Violation Of The First Amendment Protection Against Compelled Speech, Adrianna Oddo

Catholic University Law Review

Over the past several decades, technological advancements led several courts to hold that computer code is protected as speech under the First Amendment of the Constitution. However, after fourteen people were killed in the 2015 San Bernardino massacre the U.S. Government sought to ignore those findings when it ordered Apple, Inc. to write a computer code to bypass the encryption software on the shooter’s cell phone. To access this particular phone Apple would need to write a code that could potentially compromise its customers’ data and personal information. Apple vehemently opposed the Government’s order and claimed that ...


African Courts And Separation Of Powers: A Comparative Study Of Judicial Review In Uganda & South, Joseph M. Isanga 2018 Concordia University School of Law

African Courts And Separation Of Powers: A Comparative Study Of Judicial Review In Uganda & South, Joseph M. Isanga

Joseph Isanga

Achieving political stability in a transitional democracy is a fundamental goal, the resoluteness of which is in part maintained by courts of judicial review that are independent from political bias and devoid of deference to traditionally more powerful branches of government. The recent democratic transitions occurring in the African nations of South Africa and Uganda provide a unique, contemporary insight into the formation of a constitutional jurisprudence. This study is an examination of pivotal cases decided by the Constitutional Courts of South Africa and Uganda, the roles that these decisions play in political stability, and the potential for political bias ...


African Judicial Review, The Use Of Comparative African Jurisprudence, And The Judicialization Of Politics, Joseph M. Isanga 2018 Concordia University School of Law

African Judicial Review, The Use Of Comparative African Jurisprudence, And The Judicialization Of Politics, Joseph M. Isanga

Joseph Isanga

This Article examines African constitutional courts’ jurisprudence—that is, jurisprudence of courts that exercise judicial review—and demonstrates the increasing role of sub-Saharan Africa’s constitutional courts in the development of policy, a phenomenon commonly referred to as 'judicialization of politics' or a country’s 'judicialization project.' This Article explores the jurisprudence of constitutional courts in select African countries and specifically focuses on the promotion of democracy, respect for human rights, and the rule of law, and presupposes that although judges often take a positivist approach to adjudication, they do impact policy nevertheless. The use of judicial review in Africa ...


When Constitutional Rights Clash: Masterpiece Cakeshop's Potential Legacy, Ken Hyle 2018 The University of Akron

When Constitutional Rights Clash: Masterpiece Cakeshop's Potential Legacy, Ken Hyle

ConLawNOW

The narrow question presented to the U.S. Supreme Court in Masterpiece Cakeshop is undoubtedly one of great national importance. The decision will likely yield a framework for courts to resolve conflicts that specifically involve religious freedom, artistic expression, and anti-discrimination laws in the context of public accommodations. However, my essay suggests that Masterpiece Cakeshop is an appropriate vehicle for the Court to expound upon a broader, more fundamental constitutional issue: what is the optimal framework for resolving direct conflicts between constitutional rights? The essay begins by exploring the inherent flaw in a framework grounded in the traditional levels of ...


Remedies Symposium: Article Iii, Remedies, And Representation, Andrew Coan, David Marcus 2018 The University of Akron

Remedies Symposium: Article Iii, Remedies, And Representation, Andrew Coan, David Marcus

ConLawNOW

As articulated by the United States Supreme Court, the principal purpose of Article III standing is to force decisions affecting large numbers of people into the democratic process where all affected parties are represented. The logical implication of this “representation-centered theory” for the proper scope of injunctive relief is straightforward. That relief must not exceed what is reasonably necessary to remedy the particularized injury that sets the plaintiff or plaintiffs apart from the general population. The Supreme Court has repeatedly reaffirmed this logic. Yet courts and commentators, including the Court itself, routinely ignore it. The most prominent recent examples are ...


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