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False Comfort And Impossible Promises: Uncertainty, Information Overload, And The Unitary Executive, Cynthia R. Farina 2010 Cornell Law School

False Comfort And Impossible Promises: Uncertainty, Information Overload, And The Unitary Executive, Cynthia R. Farina

Cornell Law Faculty Publications

The movement toward President-centered government is one of the most significant trends in modern American history. This trend has been accelerated by unitary executive theory, which provided constitutional and “good government” justifications for what political scientists have been calling the “personal” or “plebiscitary” presidency.

This essay draws on cognitive, social and political psychology to suggest that the extreme cognitive and psychological demands of modern civic life make us particularly susceptible to a political and constitutional ideology organized around a powerful and beneficent leader who champions our interests in the face of internal obstacles and external threats. The essay goes on ...


State V. Burgess: A Limitation On A Defendant’S Right To Remain Innocent, Elizabeth Lahey 2010 Franklin Pierce Law Center, Concord, NH

State V. Burgess: A Limitation On A Defendant’S Right To Remain Innocent, Elizabeth Lahey

University of New Hampshire Law Review

[Excerpt] “This note will explore the current state of the privilege against self-incrimination, particularly in regard to whether it works to bar negative inferences from being drawn from a defendant’s silence during sentencing in order to determine his remorse for the crime of which he has been convicted. I will focus primarily on the issue in the context of the recent New Hampshire case State v. Burgess. In that case, the court recognized the application of the privilege at sentencing, but nonetheless carved out a unique exception which made negative inferences permissible at sentencing when the defendant has admitted ...


Poll/Contest: What Shape Is The Constitution?, Aaron-Andrew P. Bruhl 2010 William & Mary Law School

Poll/Contest: What Shape Is The Constitution?, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.


First Amendment Theory And The Citizens United Decision, Mary-Rose Papandrea 2010 Boston College Law School

First Amendment Theory And The Citizens United Decision, Mary-Rose Papandrea

Mary-Rose Papandrea

No abstract provided.


Where United Haulers Might Take Us: The State-Self-Promotion Exception To The Dormant Commerce Clause Rule, Dan T. Coenen 2010 UGA School of Law

Where United Haulers Might Take Us: The State-Self-Promotion Exception To The Dormant Commerce Clause Rule, Dan T. Coenen

Scholarly Works

Fourteen years ago, in C & A Carbone, Inc. v. Town of Clarkstown, the U.S. Supreme Court held that a local government had unconstitutionally discriminated against interstate commerce when it forced its citizens to purchase all waste-transfer services from a single local private supplier. In a recent decision, United Haulers Ass'n v. Oneida- Herkimer Solid Waste Management Authority, the Court refused to extend the principle of Carbone to a law that required citizens to purchase these same services from a local government-operated facility. The Court thereby engrafted on the dormant Commerce Clause a new state-selfpromotion exception, which receives its ...


Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai 2010 Brooklyn Law School

Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai

Michigan Law Review

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated ...


Judicial Erasure Of Mixed-Race Discrimination, Nancy Leong 2010 American University Washington College of Law

Judicial Erasure Of Mixed-Race Discrimination, Nancy Leong

American University Law Review

Jurisprudential remedies for racial discrimination presume the existence of clear categories. Indeed, Carolene Products’ classic allusion to “discrete and insular minorities” evokes racial groups that are readily identified and defined. Yet this reliance on categories renders antidiscrimination jurisprudence inhospitable to claims brought by individuals identified as multiracial and discriminated against on that basis. By addressing racial discrimination exclusively through categories, courts have lost sight of the fact that the purpose of antidiscrimination law is not to protect individuals from discrimination based on membership in recognized categories, but rather to protect individuals from the harms inflicted by racism.

This Article explores ...


To Be Or Not To Be? Citizens United And The Corporate Form, Reuven S. Avi-Yonah 2010 University of Michigan Law School

To Be Or Not To Be? Citizens United And The Corporate Form, Reuven S. Avi-Yonah

Law & Economics Working Papers

In Citizens United vs. FEC, the Supreme Court struck down a Federal ban on direct corporate expenditures on political campaigns. The decision has been widely criticized and praised as a matter of First Amendment law. But it is also interesting as another step in the evolution of our legal views of the corporation. The thesis of this Article is that by viewing Citizens United through the prism of theories about the corporate form, it is possible to understand why both the majority and the dissent departed from previous Supreme Court cases on the First Amendment rights of corporations, and to ...


John Paul Stevens And Equally Impartial Government, Diane Marie Amann 2010 University of Georgia School of Law

John Paul Stevens And Equally Impartial Government, Diane Marie Amann

Scholarly Works

This article is the second publication arising out of the author's ongoing research respecting Justice John Paul Stevens. It is one of several published by former law clerks and other legal experts in the UC Davis Law Review symposium edition, Volume 43, No. 3, February 2010, "The Honorable John Paul Stevens."

The article posits that Justice Stevens's embrace of race-conscious measures to ensure continued diversity stands in tension with his early rejections of affirmative action programs. The contrast suggests a linear movement toward a progressive interpretation of the Constitution’s equality guarantee; however, examination of Stevens's writings ...


Deal Or No Deal? Remedying Ineffective Assistance Of Counsel During Plea Bargaining, David A. Perez 2010 Yale Law School

Deal Or No Deal? Remedying Ineffective Assistance Of Counsel During Plea Bargaining, David A. Perez

Student Scholarship Papers

Does a defendant suffer a remedial prejudice if, as a result of ineffective assistance of counsel during plea-bargaining, s/he rejects a favorable plea offer but subsequently receives a fair trial? Courts on both the federal and state levels remain bitterly divided over this question. Although there is no clear answer, courts have generally taken one of three approaches. The first two options – ordering a new trial or reinstating the original plea offer – are remedial, and assume that the defendant suffers prejudice. The third option finds that the defendant suffered no prejudice because s/he ultimately received a fair trial ...


Thirteen Ways Of Looking At Buck V. Bell: Thoughts Occasioned By Paul Lombardo's "Three Generations, No Imbeciles", Michelle Oberman 2010 Santa Clara University School of Law

Thirteen Ways Of Looking At Buck V. Bell: Thoughts Occasioned By Paul Lombardo's "Three Generations, No Imbeciles", Michelle Oberman

Faculty Publications

Paul Lombardo's recent book, Three Generations, No Imbeciles: Eugenics, the Supreme Court and Buck v. Bell, chronicles the history of state-sponsored sterilization over the course of the 20th century. As a historical endeavor, it is rich and rewarding, permitting the reader a broad understanding of the social, cultural and legal context for the case that inspired Oliver Wendell Holmes' famous quotation, "Three generations of imbeciles are enough." Lombardo's work masterfully ties the eugenics movement of the early 20th century to the broader policies informing the government's role in regulating reproduction .

Lombardo's book, which I originally picked ...


The Reconstruction Power, Jack M. Balkin 2010 Yale Law School

The Reconstruction Power, Jack M. Balkin

Faculty Scholarship Series

Modern doctrine has not been faithful to the text, history, and structure of the Thirteenth, Fourteenth, and Fifteenth Amendments. These amendments were designed to give Congress broad powers to protect civil rights and civil liberties; together they form Congress's Reconstruction Power.

Congress gave itself broad powers because it believed it could not trust the Supreme Court to protect the rights of the freedmen. The Supreme Court soon realized Congress's fears, limiting not only the scope of the Reconstruction Amendments but also Congress's powers to enforce them in decisions like United States v. Cruikshank and the Civil Rights ...


Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai 2010 Cornell Law School

Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai

Cornell Law Faculty Publications

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated ...


Commerce, Jack M. Balkin 2010 Yale Law School

Commerce, Jack M. Balkin

Faculty Scholarship Series

This article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modern regulatory state and its expansive definition of federal commerce power. Some originalists argue that the modern state cannot be justified, while others accept existing precedents as a "pragmatic exception" to originalism. Non-originalists, in turn, point to these difficulties as a refutation of orignalist premises.

Contemporary originalist readings have tended to view the commerce power through modern eyes. Originalists defending narrow readings of federal power have identified “commerce” with the trade of commodities; originalists defending broad readings of federal ...


Prefácio Aos Prefácios, Paulo Ferreira da Cunha 2010 Universidade do Porto

Prefácio Aos Prefácios, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

No presente artigo, ensaia-se uma sintética teorização em torno dos prefácios. O seu diálogo com o corpo do texto que apresentam não é simples, mas torna-se muito revelador. vale a pena ler e analisar estes textos, que alguns saltam displicentemente, e outros perscrutam com curiosidade...


United States V. Comstock: Justifying The Civil Commitment Of Sexually Dangerous Offenders, Halerie Mahan 2010 Duke Law

United States V. Comstock: Justifying The Civil Commitment Of Sexually Dangerous Offenders, Halerie Mahan

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.


Filosofia Antropológica?, Paulo Ferreira da Cunha 2010 Universidade do Porto

Filosofia Antropológica?, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Muito do que se passa nas nossas sociedades, actualmente, depende de termos ou não termos um olhar filosófico, e de termos ou não termos a capacidade perspectivista do antropólogo. O presente artigo chama a atenção para a necessidade de a Filosofia, tentando furtar-se à tirania do Logos na versão dos ares "grão senhores", de que falava Kant, procure o olhar de "terceiro", e o despojamento de recursos da Antropologia cultural.


False Imprisonment As A Tort In India, Hari Priya 2010 NALSAR University of Law

False Imprisonment As A Tort In India, Hari Priya

Hari Priya

The tort of false imprisonment is one of the most severe forms of human rights violation, and this paper aims to define and to understand the concept of false imprisonment as a tort in India. It also seeks to know about the evolution of the notion of false imprisonment as a tort, with reference to Indian and foreign cases, and understand who and when can one be held liable for the tort of false imprisonment. It further deals with the remedies available for the said tort.


The First Amendment And Campaign Finance, Mary-Rose Papandrea 2010 Boston College Law School

The First Amendment And Campaign Finance, Mary-Rose Papandrea

Mary-Rose Papandrea

Lengthy lecture on the Supreme Court's jurisprudence on campaign finance after the controversial Citizens United decision. Intended to assist the ACLU with its development of its policy with regard to campaign finance reform efforts.


Court's Campaign-Financing Decision Endangers Democracy, Alan E. Garfield 2010 Widener Law

Court's Campaign-Financing Decision Endangers Democracy, Alan E. Garfield

Alan E Garfield

No abstract provided.


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