Presidential Control Across Policymaking Tools, 2015 University of North Carolina School of Law
Presidential Control Across Policymaking Tools, Catherine Y. Kim
Florida State University Law Review
Over the past quarter century, administrative law scholars have observed the President’s growing control over agency policymaking and the separation-of-powers concerns implicated by such unilateral exercises of power. The paradigmatic form of agency policymaking—notice-and-comment rulemaking—mitigates these concerns by ensuring considerable oversight by the courts, Congress, and the public at large. Agencies, however, typically have at their disposal a variety of policymaking tools with which to implement White House goals, including the issuance of guidance documents and the strategic exercise of enforcement discretion. While commentators have drawn attention to the risk that agencies will circumvent the extensive checks associated with rulemaking …
The Foreign Intelligence Surveillance Act And The Separation Of Powers, 2015 University of Arkansas at Little Rock William H. Bowen School of Law
The Foreign Intelligence Surveillance Act And The Separation Of Powers, Scott A. Boykin
University of Arkansas at Little Rock Law Review
No abstract provided.
Constitutional Law—Fourth Amendment—State V. Allen: An Effective Alternative To Unconstitutional "Safety Checks" On The State’S Waters, 2015 University of Arkansas at Little Rock William H. Bowen School of Law
Constitutional Law—Fourth Amendment—State V. Allen: An Effective Alternative To Unconstitutional "Safety Checks" On The State’S Waters, Christian Harrod
University of Arkansas at Little Rock Law Review
No abstract provided.
Comparative Law In The Modalities Of Constitutional Argument, 2015 North Carolina Central University School of Law
Comparative Law In The Modalities Of Constitutional Argument, Robert M. Black
North Carolina Central Law Review
No abstract provided.
Measuring The Chilling Effect, 2015 Princeton University
Measuring The Chilling Effect, Brandice Canes-Wrone, Michael C. Dorf
Cornell Law Faculty Publications
Supreme Court doctrine grants special protection against laws that “chill” protected speech, most prominently via the overbreadth doctrine. The overbreadth doctrine permits persons whose own speech is unprotected to challenge laws that infringe the protected speech of third parties. The Court has not generally applied overbreadth and the other speech-protective doctrines to other constitutional rights even though other rights could also be subject to a chilling effect. The case law simply assumes that the chilling effect only acts on the exercise of speech, and that this justifies treating speech differently from other rights.
We tested these assumptions with respect to …
Interpreting Force Authorization, 2015 Louisiana State University Law Center
Interpreting Force Authorization, Scott Sullivan
Journal Articles
This Article presents a theory of authorizations for the use of military force (AUMFs) that reconciles separation of power failures in the current interpretive model. Existing doctrine applies the same text-driven models of statutory interpretation to AUMFs that are utilized with all other legal instruments. However, the conditions at birth, objectives, and expected impacts underlying military force authorizations differ dramatically from typical legislation. AUMFs are focused but temporary corrective interventions intended to change the underlying facts that prompted their passage. This Article examines historical practice and utilizes institutionalist principles to develop a theory of AUMF decay that eschews text in …
A Corporation Has No Soul, And Doesn't Go To Church: Relating The Doctrine Or Piercing The Veil To Burwell V. Hobby Lobby, 2015 University of Arkansas School of Law
A Corporation Has No Soul, And Doesn't Go To Church: Relating The Doctrine Or Piercing The Veil To Burwell V. Hobby Lobby, Carol Goforth
South Carolina Law Review
No abstract provided.
Can The Commonwealth (Latimer House) Principles Of 2003 Serve As Aneffective Framework Forsafeguarding Democracy, 2015 Centre Institute for Public Policy Research
Can The Commonwealth (Latimer House) Principles Of 2003 Serve As Aneffective Framework Forsafeguarding Democracy, Centre Institute For Public Policy Research (Cippr)
Centre Institute for Public Policy Research (CIPPR)
The Latimer House Guidelines were written at the start of the new millennium some 11 years ago. After the Guidelines, other supporting documents have been churned out by the Commonwealth. The Guidelines present a framework for achieving separation of powers to enhance honesty, probity and accountability in government in Commonwealth countries. The outstanding question however is how well these guidelines do invoke Monsieur Baron de Montesquieu’s spirit in view of the current challenges faced by governments in Commonwealth countries? Do the guidelines present an effective framework for safeguarding democracy and the rule of law in the States concerned? These questions, …
¿Qué Significa "Ser Humano" En Su Dimensión Económica?, 2015 Tribunal Constitucional del Peru
¿Qué Significa "Ser Humano" En Su Dimensión Económica?, Jose Luis Sardon
Jose Luis Sardon
La proliferación de derecho fundamentales contraviene y desnaturaliza el concepto mismo de derecho, y tiene graves consecuencias económicas y sociales de las que se debe tomar nota.
Interpreting Force Authorization, 2015 Louisiana State University Law Center
Interpreting Force Authorization, Scott M. Sullivan
Florida State University Law Review
This Article presents a theory of authorizations for the use of military force (AUMFs) that reconciles separation of power failures in the current interpretive model. Existing doctrine applies the same text-driven models of statutory interpretation to AUMFs that are utilized with all other legal instruments. However, the conditions at birth, objectives, and expected impacts underlying military force authorizations differ dramatically from typical legislation. AUMFs are focused but temporary corrective interventions intended to change the underlying facts that prompted their passage. This Article examines historical practice and utilizes institutionalist principles to develop a theory of AUMF decay that eschews text in …
Towards An Institutional Challenge Of Imprisonment For Legal Financial Obligation Nonpayment In Washington State, 2015 University of Washington School of Law
Towards An Institutional Challenge Of Imprisonment For Legal Financial Obligation Nonpayment In Washington State, Devon King
Washington Law Review
Imprisonment for debt is resurfacing in the United States, primarily in the form of contempt proceedings for failure to pay court judgments. Although Washington’s Constitution prohibits imprisonment for debt, the State repeatedly jails individuals for failing to pay legal financial obligations. This Comment explores the adverse consequences of this de facto debtors’ prison system, describes the strong prohibition on imprisonment for debt found in article I, section 17 of the Washington Constitution, and argues that imprisonment for failing to pay legal financial obligations violates that strong prohibition. It then discusses how case law has degraded article I, section 17, making …
The Indefinite Deflection Of Congressional Standing, 2015 Florida State University College of Law
The Indefinite Deflection Of Congressional Standing, Nat Stern
Scholarly Publications
Recent litigation brought or threatened against the administration of President Obama has brought to prominence the question of standing by Congress or its members to sue the President for nondefense or non-enforcement of federal law. Leading scholars in the field of congressional standing immediately expressed doubt that courts would entertain a suit seeking to compel enforcement of these provisions. This Article argues that the premise that suits of this sort can be maintained rests on a tenuous understanding of the Supreme Court's fitful treatment of standing by Congress or its members to sue the Executive.
The Court has never issued …
A Look Back At The "Gatehouses And Mansions" Of American Criminal Procedure, 2015 University of Michigan Law School
A Look Back At The "Gatehouses And Mansions" Of American Criminal Procedure, Yale Kamisar
Articles
I am indebted to Professor William Pizzi for remembering—and praising—the “Gatehouses and Mansions” essay I wrote fifty years ago. A great many articles and books have been written about Miranda. So it is nice to be remembered for an article published a year before that famous case was ever decided.
Content-Based Copyright Denial, 2015 University of South Carolina
Content-Based Copyright Denial, Ned Snow
Indiana Law Journal
No principle of First Amendment law is more firmly established than the principle that government may not restrict speech based on its content. It would seem to follow, then, that Congress may not withhold copyright protection for disfavored categories of content, such as violent video games or pornography. This Article argues otherwise. This Article is the first to recognize a distinction in the scope of coverage between the First Amendment and the Copyright Clause. It claims that speech protection from government censorship does not imply speech protection from private copying. Crucially, I argue that this distinction in the scope of …
The Voting Rights Act, Questions Of Deference & Legislative Facts In A Digital Age, 2015 William & Mary Law School
The Voting Rights Act, Questions Of Deference & Legislative Facts In A Digital Age, Allison Orr Larsen
Faculty Publications
AALS Constitutional Law Panel (January 5, 2015)
Potential Of Florida's Effective Assistance Of Counsel Doctrine To Increase Parent Engagement And Promote The Well-Being Of Children, 2015 University of Miami School of Law
Potential Of Florida's Effective Assistance Of Counsel Doctrine To Increase Parent Engagement And Promote The Well-Being Of Children, Robert Latham, Robin L. Rosenberg
Articles
No abstract provided.
The Power Of Dignity, 2015 Fordham University School of Law
The Power Of Dignity, Elizabeth B. Cooper
Fordham Law Review
This Essay juxtaposes the historical and judicial equating of homosexuality and stigma with the Court’s development of a jurisprudence of dignity for gay men and lesbians, culminating in its decision in Obergefell v. Hodges. The language of Obergefell reflects an acceptance of and respect for gay men and lesbians that—regardless of one’s actual desire to marry or attitudes toward the institution of marriage—will profoundly change not only how the law treats LGB individuals, but also how we are treated by others, as well as how we perceive ourselves. I do not mean to assert that Obergefell is without its …
Roberts, Kennedy, And The Subtle Differences That Matter In Obergefell, 2015 Fordham University School of Law
Roberts, Kennedy, And The Subtle Differences That Matter In Obergefell, Joseph Landau
Fordham Law Review
By upholding a nationwide right to marry for same-sex couples in Obergefell v. Hodges, the Supreme Court’s enormously significant decision resolves a major civil rights question that has percolated through our legal system and coursed through our culture for some time. The ruling was not an unforeseen outcome, but it brings welcome clarity by ensuring marriage rights for same-sex couples throughout all fifty states. Building on United States v. Windsor—a 2013 decision striking down section 3 of the Defense of Marriage Act (DOMA), which prevented gay and lesbian married couples from receiving federal benefits—Obergefell is an important and …
Hail Marriage And Farewell, 2015 Fordham University School of Law
Hail Marriage And Farewell, Ethan J. Leib
Fordham Law Review
My conclusion in what follows is that, notwithstanding much rhetoric in the opinion, states have some room to rethink marriage in light of marriage equality. And with some intellectual jujitsu, this opening to rethink the state’s place in relational ordering gives marriage-skeptics another bite at the apple to get something they wanted all along: to decenter the largely religious, gendered, and bourgeois institution of marriage. Justice Kennedy’s opinion has the unfortunate result of reaffirming marriage at the top of a relational hierarchy, yet there are surely other ways we can have civil rights and equality for gay people without marriage …
Up From Marriage: Freedom, Solitude, And Individual Autonomy In The Shadow Of Marriage Equality, 2015 Fordham University School of Law
Up From Marriage: Freedom, Solitude, And Individual Autonomy In The Shadow Of Marriage Equality, Catherine Powell
Fordham Law Review
Obergefell v. Hodges represents a tremendous victory for those of us who believe that each individual has the right to love, form bonds, and create families with whomever one so desires. Through Obergefell and the line of cases from Griswold v. Connecticut and Loving v. Virginia onward, the Court has now repeatedly affirmed the freedoms to plan, to choose, and to create one’s own family as fundamental.