Constitutional Reform In Japan: Prospects, Process, And Implications, 2019 Columbia Law School
Constitutional Reform In Japan: Prospects, Process, And Implications, Nobuhisa Ishizuka
Faculty Scholarship
Japan's constitution has remained unchanged for over 70 years since its adoption. With Prime Minister Shinzo Abe's re-election as the leader of the ruling Liberal Democratic Party of Japan (LDP) in 2018, the issue of constitutional revision has gained renewed attention. On March 13, 2019 the Center for Japanese Legal Studies at Columbia Law School co-hosted, with the Council on Foreign Relations, a full-day conference on "Constitutional Reform in Japan: Prospect, Process, and Implications." Three panels of distinguished experts examined the domestic political landscape in Japan, provided comparative legal perspectives, and considered the political, strategic, and social implications of proposed …
The Present Crisis In American Bail, 2019 Columbia Law School
The Present Crisis In American Bail, Kellen R. Funk
Faculty Scholarship
More than fifty years after a predicted coming federal courts crisis in bail, district courts have begun granting major systemic injunctions against money bail systems. This Essay surveys the constitutional theories and circuit splits that are forming through these litigations. The major point of controversy is the level of federal court scrutiny triggered by allegedly unconstitutional bail regimes, an inquiry complicated by ambiguous Supreme Court precedents on (1) post-conviction fines, (2) preventive detention at the federal level, and (3) the adequacy of probable cause hearings. The Essay argues that the application of strict scrutiny makes the best sense of these …
An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, 2019 University of California Los Angeles School of Law
An Intersectional Critique Of Tiers Of Scrutiny: Beyond “Either/Or” Approaches To Equal Protection, Devon W. Carbado, Kimberlé W. Crenshaw
Faculty Scholarship
For the past forty years, Justice Powell’s concurring opinion in University of California v. Bakke has been at the center of scholarly debates about affirmative action. Notwithstanding the enormous attention Justice Powell’s concurrence has received, scholars have paid little attention to a passage in that opinion that expressly takes up the issue of gender. Drawing on the theory of intersectionality, this Essay explains several ways in which its reasoning is flawed. The Essay also shows how interrogating Justice Powell’s “single axis” race and gender analysis raises broader questions about tiers of scrutiny for Black women. Through a hypothetical of a …
Citizens United As Bad Corporate Law, 2019 Supreme Court of Delaware; University of Pennsylvania Law School
Citizens United As Bad Corporate Law, Leo E. Strine Jr., Jonathan Macey
All Faculty Scholarship
In this Article we show that Citizens United v. FEC, arguably the most important First Amendment case of the new millennium, is predicated on a fundamental misconception about the nature of the corporation. Specifically, Citizens United v. FEC, which prohibited the government from restricting independent expenditures for corporate communications, and held that corporations enjoy the same free speech rights to engage in political spending as human citizens, is grounded on the erroneous theory that corporations are “associations of citizens” rather than what they actually are: independent legal entities distinct from those who own their stock. Our contribution to the literature …
Not Such A Fixed Star After All: West Virginia State Board Of Education V. Barnette, And The Changing Meaning Of The First Amendment Right Not To Speak, 2019 University of Chicago Law School
Not Such A Fixed Star After All: West Virginia State Board Of Education V. Barnette, And The Changing Meaning Of The First Amendment Right Not To Speak, Genevieve Lakier
FIU Law Review
No abstract provided.
The Enacted Purposes Canon, 2019 Vanderbilt University Law School
The Enacted Purposes Canon, Kevin M. Stack
Vanderbilt Law School Faculty Publications
This Article argues that the principle relied upon in King v. Burwell that courts "cannot interpret statutes to negate their stated purposes"-the enacted purposes canon-is and should be viewed as a bedrock element of statutory interpretation. The Supreme Court has relied upon this principle for decades, but it has done so in ways that do not call attention to this interpretive choice. As a result, the scope and patterns of the Court's reliance are easy to miss. After reconstructing the Court's practice, this Article defends this principle of interpretation on analytic, normative, and pragmatic grounds. Building on jurisprudence showing that …
The Unconstitutional Tampon Tax, 2019 Elisabeth Haub School of Law at Pace University
The Unconstitutional Tampon Tax, Bridget J. Crawford, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
Thirty-five states impose a sales tax on menstrual hygiene products, while products like spermicidal condoms and erectile dysfunction medications are tax-free. This sales tax--commonly called the “tampon tax”--represents an expense that girls and women must bear on top of the cost of biologically necessary items that they need in order to attend school, work, and otherwise participate in public life. This article explores the constitutionality of the tampon tax and argues that it is an impermissible form of gender discrimination under the Equal Protection Clause. First, menstrual hygiene products are a unique proxy for female sex, and therefore any disadvantageous …
Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, 2019 Dalhousie University, Schulich School of Law
Extradition And Trial Delays: Recent Developments (And Lessons?) From Canada, Robert Currie, Laura Ellyson
Articles, Book Chapters, & Popular Press
Extradition – the formal rendition of criminal fugitives between states – is well-known to be a time-consuming process that often has impacts, minor or major, on the ability of states to complete prosecution in a timely manner. Thus, the extradition process can sometimes be at odds with the right to trial within a reasonable time, which is part of the overall package of fair trial rights enshrined in international human rights law. In Canada, this right is implemented by paragraph 11(b) of the Canadian Charter of Rights and Freedoms. In recent years Canadian courts have developed a series of principles …
Proceedings Of Expert Forum On First Nations Social Assistance Reform, September 3, 2019, 2019 Assistant Professor and Chancellor’s Chair in Aboriginal Law and Policy at the Schulich School of Law at Dalhousie University
Proceedings Of Expert Forum On First Nations Social Assistance Reform, September 3, 2019, Naiomi Metallic, Fred Wien
Articles, Book Chapters, & Popular Press
Social assistance, whether directed to the mainstream population or to First Nations, is not – according to Forum participants -- a sexy topic. Specifically, with respect to First Nation persons living on reserve in Canada, it has been largely a neglected field except for those directly responsible for administering it. Despite its substantive importance, it has not received a lot of attention from the academic research community, for example, nor is it usually near the top of the list of priorities for political leaders and governments.
Why is this the case? Perhaps it has to do with the history of …
The Canadian Legal System: An Introduction For Regulated Professions, 2019 Dalhousie University Schulich School of Law
The Canadian Legal System: An Introduction For Regulated Professions, Steve Coughlan, Dale Darling
Articles, Book Chapters, & Popular Press
To understand the influence of law on any regulated profession, one must first understand the influences on the creation of law. This introductory paper sets the context for that discussion of law by explaining the structural aspects of the legal system. Those aspects include the sources of law in Canada, the forms that law can take, and the parties who are primarily responsible for creating and shaping the law. This paper is structured around the discussion of four things: constitutional law, non-constitutional law, decision-makers in the legal system and, finally, a case study illustrating those features in action.
The Spousal Support Advisory Guidelines, Soft Law, And The Procedural Rule Of Law, 2019 Dalhousie University Schulich School of Law
The Spousal Support Advisory Guidelines, Soft Law, And The Procedural Rule Of Law, Jodi Lazare
Articles, Book Chapters, & Popular Press
The Spousal Support Advisory Guidelines facilitate discretionary spousal support determinations under the Divorce Act. Non-binding in nature, they are expected to restore some transparency to an uncertain and unpredictable remedy and to benefit dependent spouses who might previously have been deterred from claiming support. They may thus be seen as an important tool for advancing economic justice at family breakdown and promoting substantive economic gender equality. Several Canadian appellate courts have enthusiastically endorsed them. Others object to their application, grounding their resistance in their unofficial and non-binding character. This paper responds to that objection, based on the constitutional separation of …
The Science, Law, And Politics Of Canada's Pathways To Paris: Introduction To Ubc Law Review's Special Section On Climate Change And Canada, 2019 University of Saskatchewan, College of Law
The Science, Law, And Politics Of Canada's Pathways To Paris: Introduction To Ubc Law Review's Special Section On Climate Change And Canada, Jason Maclean, Meinhard Doelle, Chris Tollefson
Articles, Book Chapters, & Popular Press
This brief essay introduces two articles comprising a special section of the UBC Law Review on climate change law and policy in Canada.
Disgorging Emoluments, 2019 Marquette University Law School
Disgorging Emoluments, Caprice L. Roberts
Marquette Law Review
This Article is about unjust enrichment. It includes a theory of an unjust
enrichment cause of action against executive actors who receive unlawful
emoluments. Interpretations of the boundaries of unlawful emoluments range
from receipt of a gift or benefit because of the position of power held to quid
pro quo exchanges of a thing of value in exchange for government information
or advantage. Wherever the proper line, the purpose of the law of unjust
enrichment is to prevent and undo benefits one has no right to retain. It
achieves those goals with the use of restitution remedies including
disgorgement of …
Political Parties And Constitutional Fidelity, 2019 Marquette University Law School
Political Parties And Constitutional Fidelity
Marquette Law Review
In the aftermath of the 2016 presidential election, fewer themes have received more attention from scholars and public commentators than political polarization. However, given the recent focus on tension and conflict in contemporary American society, the present also seems an especially appropriate moment to investigate those fundamental structures that have successfully worked in the opposite direction to bind and stabilize the American polity. The goal of this paper is precisely this task, and to emphasize the centrality of one particular structure that has played such a stabilizing function: the political parties. Parties are often invoked in discussions of political polarization. …
"No Person . . . Shall Ever Be Molested On Account Of His Mode Of Worship Or Religious Sentiments . . . .": The Northwest Ordinance Of 1787 And Strader V. Graham, 2019 Marquette University Law School
"No Person . . . Shall Ever Be Molested On Account Of His Mode Of Worship Or Religious Sentiments . . . .": The Northwest Ordinance Of 1787 And Strader V. Graham, Allan W. Vestal
Marquette Law Review
The Article looks at the first article of compact of the Northwest Ordinance,
the religious liberty guarantee: “No person . . . shall ever be molested on
account of his mode of worship or religious sentiments . . . .” Congress
provided that the Northwest Ordinance articles of compact would “forever
remain unalterable.” But in a fugitive slave case from 1851, Strader v. Graham,
Chief Justice Roger Taney declared the articles of compact to be no longer in
force.
In evaluating Chief Justice Taney’s reasoning, the question posed at the
dawn of the 20th Century by historian Professor Andrew McLaughlin …
The “Uncanny Valley” And The Verisimilitude Of Sexual Offenders–Part I: An “Ethorobotic” Perspective, 2019 University of Arkansas at Little Rock William H. Bowen School of Law
The “Uncanny Valley” And The Verisimilitude Of Sexual Offenders–Part I: An “Ethorobotic” Perspective, Michael T. Flannery
Faculty Scholarship
No abstract provided.
Recording As Heckling, 2019 University of Colorado Law School
Recording As Heckling, Scott Skinner-Thompson
Publications
A growing body of authority recognizes that citizen recording of police officers and public space is protected by the First Amendment. But the judicial and scholarly momentum behind the emerging “right to record” fails to fully incorporate recording’s cost to another important right that also furthers First Amendment principles: the right to privacy.
This Article helps fill that gap by comprehensively analyzing the First Amendment interests of both the right to record and the right to privacy in public while highlighting the role of technology in altering the First Amendment landscape. Recording information can be critical to future speech and, …
The Statutory Separation Of Powers, 2019 University of Colorado Law School
The Statutory Separation Of Powers, Sharon B. Jacobs
Publications
Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the “statutory separation of powers” seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business: the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies in particular might seek expansion of their authority vis-à-vis …
Rhode Island's School Funding Challenges In Historical Context, 2019 New York State Education Department
Rhode Island's School Funding Challenges In Historical Context, Daniel W. Morton-Bentley
Roger Williams University Law Review
No abstract provided.
Life And Civil Death In The Ocean State: Resurrecting Life-Prisoners’ Right To Access Courts In Rhode Island, 2019 J.D. Candidate 2020, Roger Williams University School of Law
Life And Civil Death In The Ocean State: Resurrecting Life-Prisoners’ Right To Access Courts In Rhode Island, James M. Kovach
Roger Williams University Law Review
No abstract provided.