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

Constitutional Law Commons

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

23056 Full-Text Articles 11424 Authors 8759025 Downloads 190 Institutions

All Articles in Constitutional Law

Faceted Search

23056 full-text articles. Page 508 of 559.

Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progessive Originalism, Dale E. Ho 2010 College of William & Mary Law School

Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progessive Originalism, Dale E. Ho

William & Mary Bill of Rights Journal

The Supreme Court’s decision in last term’s gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that “we are all originalists now.” Surprisingly, many progressive academics were disappointed. For “progressive originalists,” McDonald was a missed opportunity to overrule the Slaughter-House Cases and to revitalize the Privileges or Immunities Clause of the Fourteenth Amendment. In their view, such a ruling could have realigned progressive constitutional achievements with originalism and relieved progressives of the albatross of substantive due process, while also unlocking long-dormant constitutional text to serve as the source of ...


Huppert, Reilly, And The Increasing Futility Of Relying On The First Amendment To Protect Employee Speech, John Q. Mulligan 2010 College of William & Mary Law School

Huppert, Reilly, And The Increasing Futility Of Relying On The First Amendment To Protect Employee Speech, John Q. Mulligan

William & Mary Bill of Rights Journal

No abstract provided.


Faulty Foundations: How The False Analogy To Routine Fingerprinting Undermines The Argument For Arrestee Dna Sampling, Corey Preston 2010 College of William & Mary Law School

Faulty Foundations: How The False Analogy To Routine Fingerprinting Undermines The Argument For Arrestee Dna Sampling, Corey Preston

William & Mary Bill of Rights Journal

No abstract provided.


The Melendez-Diaz Dilemma: Virginia's Response, A Model To Follow, Anne Hampton Andrews 2010 College of William & Mary Law School

The Melendez-Diaz Dilemma: Virginia's Response, A Model To Follow, Anne Hampton Andrews

William & Mary Bill of Rights Journal

No abstract provided.


Judges Playing Jury: Constitutional Conflicts In Deciding Fair Use On Summary Judgment, Ned Snow 2010 University of South Carolina - Columbia

Judges Playing Jury: Constitutional Conflicts In Deciding Fair Use On Summary Judgment, Ned Snow

Faculty Publications

Issues of fair use in copyright cases are usually decided at summary judgment. But it was not always so. For well over a century, juries routinely decided these issues. The law recognized that fair use issues were highly subjective and thereby inherently factual — unfit for summary disposition by a judge. Today, however, all this has been forgotten. Judges are characterizing factual issues as purely legal so that fair use may be decided at summary judgment. Even while judges acknowledge that reasonable minds may disagree on these issues, they characterize the issues as legal, preventing them from ever reaching a jury ...


Playing By Different Rules? Property Rights In Land And Water, Richard A. Epstein 2010 New York University School of law

Playing By Different Rules? Property Rights In Land And Water, Richard A. Epstein

New York University Law and Economics Working Papers

This article examines both the similarities and differences between the law of land and water in both a private law and constitutional law setting. The first critical difference is that the nature of the two resources differs enough such that exclusive rights for occupation usually sets the right framework for analyzing land use disputes, while a system of shared, correlative duties work best for water. Once these baselines are established, it follows that an accurate rendition of the constitutional law issues necessarily rests on the proper articulation of private law rules of adjudication. Unless those efficient private rules are used ...


From One [Expletive] Policy To The Next: The Fcc's Regulation Of "Fleeting Expletives" And The Supreme Court's Response, Brandon J. Almas 2010 Indiana University Maurer School of Law

From One [Expletive] Policy To The Next: The Fcc's Regulation Of "Fleeting Expletives" And The Supreme Court's Response, Brandon J. Almas

Federal Communications Law Journal

After the broadcast of the 2003 Golden Globe Awards, during which the lead singer from U2 uttered an expletive on national television, the FCC revisited its prior policy on the use of expletives on the airwaves and declared, for the first time, that "fleeting expletives" are offensive according to community standards and are therefore finable. In a lawsuit filed in the Second Circuit Court of Appeals, Fox Television Stations, Inc. along with a number of other broadcasters argued that the FCC's new policy was arbitrary and capricious under the Administrative Procedure Act and unconstitutional under the First Amendment. The ...


Examining The Fcc's Indecency Regulations In Light Of Today's Technology, Elizabeth H. Steele 2010 Indiana University Maurer School of Law

Examining The Fcc's Indecency Regulations In Light Of Today's Technology, Elizabeth H. Steele

Federal Communications Law Journal

Indecency regulations promulgated by the FCC used to be effective, but today's technological advances call those regulations into question. With the prevalence of digital video recorders and the availability of television shows on the Internet, children have unprecedented access to material broadcast at all times of day. As a result, the "safe harbor" rationale restricting the broadcast of indecent material no longer makes sense. A move toward deregulation is the most logical step to take, as it would prevent any First Amendment violations and would allow the networks freedom to broadcast material that the public may be interested in ...


Toleration And Calumny: Bayle, Locke, Montesquie And Voltaire On Religious Hate Speech, Jeremy Waldron 2010 NYU School of Law

Toleration And Calumny: Bayle, Locke, Montesquie And Voltaire On Religious Hate Speech, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

There is a considerable literature on the issue of hate speech. And there is a considerable literature on religious toleration (both contemporary and historic). But the two have not been brought into relation with one another. In this paper, I consider how the argument for religious toleration extends beyond a requirement of non-persection and non-establishment. I consider its application to the question of religious vituperation. The focus of the paper is on 17th and 18th century theories. Locke, Bayle and other Enlightenment thinkers imagined a tolerant society as a society free of hate speech: the kind of religious peace that ...


Socioeconomic Rights And Theories Of Justice, Jeremy Waldron 2010 NYU School of Law

Socioeconomic Rights And Theories Of Justice, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

This paper considers the relation between theories of justice (like John Rawls’s theory) and theories of socio-economic rights. In different ways, these two kinds of theory address much the same subject-matter. But they are quite strikingly different in format and texture. Theories of socio-economic rights defend particular line-item requirements: a right to this or that good or opportunity (e.g., housing, health care, education, social security). Theories of justice tend to involve a more integrated normative account of a society’s basic structure (though they differ considerably among themselves in their structure). So how exactly should we think about ...


Two-Way Translation: The Ethics Of Engaging With Religious Contributions In Public Deliberation, Jeremy Waldron 2010 NYU School of Law

Two-Way Translation: The Ethics Of Engaging With Religious Contributions In Public Deliberation, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

Using as an exemplar, the 2007 "Evangelical Declaration against Torture," this paper examines the role of religious argument in public life. The Declaration was drawn up by David Gushee, University Professor at Mercer University, and others. It argues for an absolute ban on the use of torture deploying unashamedly Christian rhetoric, some of it quite powerful and challenging. For example, it says: " [T]he Holy Spirit participates in human pathos with groans and sighs too deep for words. The cries of the tortured are in a very real sense, … the cries of the Spirit." The present paper considers whether there ...


Dignity, Rights, And Responsibilities, Jeremy Waldron 2010 NYU School of Law

Dignity, Rights, And Responsibilities, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

Taking as its point of departure, a Green Paper published by the UK government in 2008 urging greater emphasis on responsibilities, this essay considers various senses of "responsibility" that may be thought important in and around the topic of individual rights. Most likely, the authors of the Green Paper had in mind responsibilities that are correlative to rights and responsibilities that qualify rights or limit their exercise. But an additional idea - which has not been properly considered - is the idea of rights which ARE (in large part) responsibilities, rights which embody responsibilities. An obvious example is the right of a ...


Vagueness And The Guidance Of Action, Jeremy Waldron 2010 NYU School of Law

Vagueness And The Guidance Of Action, Jeremy Waldron

New York University Public Law and Legal Theory Working Papers

This paper is part of a more general argument I am pursuing about the idea of the Rule of Law. I want to argue that the Rule of Law should not always be construed as demanding determinacy and clarity at all costs; it should not always be conceived as the rule of rules (as opposed – sometimes – to the rule of standards). The objection to standards is that, because they use predicates like “reasonable” or “excessive,” they are therefore vague; they give relatively little guidance to those to whom they are addressed; and they leave the individual unclear about where she ...


Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf 2010 Cornell Law School

Majoritarian Difficulty And Theories Of Constitutional Decision Making, Michael C. Dorf

Cornell Law Faculty Publications

Recent scholarship in political science and law challenges the view that judicial review in the United States poses what Alexander Bickel famously called the "counter-majoritarian difficulty." Although courts do regularly invalidate state and federal action on constitutional grounds, they rarely depart substantially from the median of public opinion. When they do so depart, if public opinion does not eventually come in line with the judicial view, constitutional amendment, changes in judicial personnel, and/or changes in judicial doctrine typically bring judicial understandings closer to public opinion. But if the modesty of courts dissolves Bickel's worry, it raises a distinct ...


Impeachment And Assassination, Josh Chafetz 2010 Cornell Law School

Impeachment And Assassination, Josh Chafetz

Cornell Law Faculty Publications

In 1998, the conservative provocateur Ann Coulter made waves when she wrote that President Clinton should be either impeached or assassinated. Coulter was roundly - and rightly - condemned for suggesting that the murder of the President might be justified, but her conceptual linking of presidential impeachment and assassination was not entirely unfounded. Indeed, Benjamin Franklin had made the same linkage over two hundred years earlier, when he noted at the Constitutional Convention that, historically, the removal of “obnoxious” chief executives had been accomplished by assassination. Franklin suggested that a proceduralized mechanism for removal - impeachment - would be preferable.

This Article for the ...


Corporate Capacity For Crime And Politics: Defining Corporate Personhood At The Turn Of The Twentieth Century, Daniel Lipton 2010 University of Virginia - Main Campus

Corporate Capacity For Crime And Politics: Defining Corporate Personhood At The Turn Of The Twentieth Century, Daniel Lipton

Daniel Lipton

Traditional historical accounts of corporate personhood in the early twentieth century portray corporate law as the extension of a doctrinal conflict between the real entity and artificial entity theories of the corporation. Artificial entity theory posited that the corporation was a creature of the state, and could therefore be regulated with impunity. Real entity theory maintained that corporations existed independently of the state, and therefore possessed rights, duties, and morality, as would any natural person. In the traditional narrative, corporate power expanded because real entity theory triumphed over artificial entity theory. This Note rejects that either real entity or artificial ...


A Comment On Costs In Constitutional Cases, Iain Field 2010 Bond University

A Comment On Costs In Constitutional Cases, Iain Field

Iain Field

Professor Patrick Keyzer and Stephen Lloyd SC are both well qualified to speak to the legal principles that govern the determination of costs in constitutional cases, and I am, with respect, happy to accept their combined review of these principles. I do not think that there are any significant disagreements between them in this regard. They have, nevertheless, provided us with two usefully distinct perspectives on the topic, and offered two contrasting views as to the need for special costs rules in constitutional cases. I have only a small number of observations (perhaps it is better to say questions), which ...


Lawmakers As Lawbreakers, Ittai Bar-Siman-Tov 2010 Bar-Ilan University

Lawmakers As Lawbreakers, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

How would Congress act in a world without judicial review? Canlawmakers be trusted to police themselves? This Article examinesCongress’s capacity and incentives to enforce upon itself “the law ofcongressional lawmaking”—a largely overlooked body of law that iscompletely insulated from judicial enforcement. The Article exploresthe political safeguards that may motivate lawmakers to engage inself-policing and rule-following behavior. It identifies the majorpolitical safeguards that can be garnered from the relevant legal,political science, political economy, and social psychology scholarship,and evaluates each safeguard by drawing on a combination oftheoretical, empirical, and descriptive studies about Congress. TheArticle’s main argument is ...


Justicia Transicional En Colombia - Editorial No. 17, Julián Daniel López Murcia, Catalina Uprimny Salazar, Rocío López Carrizosa, Miguel Samper Strouss 2010 Pontificia Universidad Javeriana

Justicia Transicional En Colombia - Editorial No. 17, Julián Daniel López Murcia, Catalina Uprimny Salazar, Rocío López Carrizosa, Miguel Samper Strouss

Julián Daniel López-Murcia Government and Law in Latin America

No abstract provided.


Visões E Revisões Constitucionais, Paulo Ferreira da Cunha 2010 Universidade do Porto

Visões E Revisões Constitucionais, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Os tempos actuais são apesar de tudo excelentes para reflectir sobre o vero alcance das normas. E sobretudo das normas generosas da nossa Constituição democrática e social. Não se pense que a Constituição é milagrosa. As crises, como aquela em que nos encontramos, colocam-lhe desafios sérios, e é a força das coisas, dos factos, e não o normativo dos textos, quem impera normalmente.


Digital Commons powered by bepress