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

Constitutional Law Commons

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

21751 Full-Text Articles 10980 Authors 8228427 Downloads 182 Institutions

All Articles in Constitutional Law

Faceted Search

21751 full-text articles. Page 508 of 509.

Antecedent Law: The Law Of People Making, Carter Dillard 2009 Emory University

Antecedent Law: The Law Of People Making, Carter Dillard

Carter Dillard

In our conception of law we have largely presumed the process by which the people whose behavior the law is meant to regulate come to be present and susceptible to the law's influence. As a result, that process is largely outside of our account of the law, and any role the law might have over the matter is relatively ignored. This article introduces a simple and concrete conceptual device, a form of law called antecedent law, which seeks to undo this presumption and refocus our attention on that which can determine the presence of persons in the polity and ...


Insulating The Constitution: Yong Vui Kong V. Public Prosecutor [2010] Sgca 20, Aravind Ganesh 2009 Université Catholique de Louvain

Insulating The Constitution: Yong Vui Kong V. Public Prosecutor [2010] Sgca 20, Aravind Ganesh

Aravind Ganesh

In May 2010, the Singapore Court of Appeal upheld the constitutionality of the mandatory death penalty in Yong Vui Kong v PP. This article does not deal with the propriety of mandatory death penalty laws, or of the death penalty broadly, but instead focuses on two novel pronouncements by the Court of Appeal. First, that customary international law not only has no legal validity in the domestic Singaporean legal sphere, but that it is also not to be treated as automatically incorporated into Singapore common law. Instead, a rule of customary international law can become part of Singapore law only ...


State Extraterritorial Powers Reconsidered, Mark D. Rosen 2009 Selected Works

State Extraterritorial Powers Reconsidered, Mark D. Rosen

Mark D. Rosen

No abstract provided.


Collective Action Federalism: A General Theory Of Article I, Section 8, Robert D. Cooter, Neil Siegel 2009 Berkeley Law School

Collective Action Federalism: A General Theory Of Article I, Section 8, Robert D. Cooter, Neil Siegel

Robert Cooter

The Framers of the United States Constitution wrote Article I, Section 8 in order to address some daunting collective action problems facing the young nation. They especially wanted to protect the states from military warfare by foreigners and from commercial warfare against one another. The states acted individually when they needed to act collectively, and Congress lacked power under the Articles of Confederation to address these problems. Section 8 thus authorized Congress to promote the “general Welfare” of the United States by tackling many collective action problems that the states could not solve on their own. Subsequent interpretations of Section ...


Fundamental Social Rights, Social Security And The Costs Of Social Rights: Brazilian Cases, carlos luiz strapazzon 2009 Western University of Santa Catarina State (UNOESC); University Positivo School of Law

Fundamental Social Rights, Social Security And The Costs Of Social Rights: Brazilian Cases, Carlos Luiz Strapazzon

Carlos Luiz Strapazzon

Brazilian Courts, in order to guarantee social rights, should take into account the scarcity of resources and the principle of equality so as not favoring anyone with features that are intended for everyone. Given this limitation, how the Judicial Power might act with respect to the realization of social rights? It has down increased attention how, in Brazil, the Judicial Power, especially the Supreme Court and the Superior Court, have interfered in Executive discretion so as to protect social rights, as health rights or educational rights. This article aims to explain how it occurs in Brazil and verify, on the ...


Curbing Rent-Seeking And Inefficiency With Broad Takings Powers And Undercompensation: The Case Of Singapore From A Givings Perspective, Jianlin Chen 2009 University of Chicago

Curbing Rent-Seeking And Inefficiency With Broad Takings Powers And Undercompensation: The Case Of Singapore From A Givings Perspective, Jianlin Chen

Jianlin Chen

Conventional discourses on the perils of weak property rights vis-à-vis government takings have failed to account for and respond to the rent-seeking and inefficiency problems of government actions. Singapore, with its broad takings powers, coupled with express undercompensation, has not suffered from the predicted widespread rent-seeking and inefficiency. This case study of Singapore from a givings perspective demonstrates the importance of imposing a fair charge on the various kinds of givings in curbing rent-seeking and inefficiency. There are also additional benefits of having a healthy fiscal budget and more equitable taxation arising from Singapore's givings regime. The key normative ...


Textualist Canons: Cabining Rules Or Predilective Tools, Stephen Durden 2009 Florida Coastal School of Law

Textualist Canons: Cabining Rules Or Predilective Tools, Stephen Durden

Stephen Durden

Justice Scalia proclaims homage to the “dead” Constitution. Justice Brennan honors the “living” Constitution. Others believe in “a partially living and partially dead Constitution.” But, whichever moniker selected, constitutional analysis remains (to the interpreter) personal; however, personal does not necessarily mean irrational or even singular (i.e., that no one else agrees with the interpretation). Rather, personal means that no matter how narrow the interpretational method, an interpreter of the Constitution inevitably makes personal choices when using any interpretational method - choices not required by, or perhaps even inconsistent with, the chosen interpretational method. This Article uses canons of construction to ...


A Typology Of Economic And Social Rights Adjudication: Exploring The Catalytic Function Of Judicial Review, Katharine G. Young 2009 Boston College Law School

A Typology Of Economic And Social Rights Adjudication: Exploring The Catalytic Function Of Judicial Review, Katharine G. Young

Katharine G. Young

The tensions that are often thought to lie between democracy and constitutionalism are especially pronounced with respect to the entrenchment of economic and social rights. Within current understandings of judicial review, courts appear to lack the competency, and the legitimacy, for economic and social rights adjudication. In this article, I draw on the South African Constitutional Court’s experience with justiciable economic and social rights, to present a typology of judicial review, which incorporates deferential, conversational, experimentalist, managerial and peremptory stances. I suggest that these five stances are part of a general judicial role conception which I term catalytic, because ...


The One And Only Substantive Due Process Clause, Ryan C. Williams 2009 Selected Works

The One And Only Substantive Due Process Clause, Ryan C. Williams

Ryan Williams

The nature and scope of the rights protected by the Due Process Clauses of the Fifth and Fourteenth Amendments are among the most debated topics in all of constitutional law. At the core of this debate is the question of whether these clauses should be understood to protect only “procedural” rights, such as notice and the opportunity for a hearing, or whether the due process guarantee should be understood to encompass certain “substantive” protections as well. An important though little explored assumption shared by participants on both sides of this debate is that the answer to the substantive due process ...


Instituições, Trabalho E Pessoas, Paulo Ferreira da Cunha 2009 Universidade do Porto

Instituições, Trabalho E Pessoas, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Os especialistas em doenças terminais sabem que ninguém tem saudades, quando abandona a vida, do trabalho que não fez. Tem saudades sim do tempo que não passou com familiares e amigos. A sociedade contemporânea, e algumas instituições "totais" estão a potenciar até ao expoente demencial a exploração e a despersonalização dos trabalhadores, designadamente proletarizando técnicos superiores e técnicos pensantes que, sem ócio criativo, deixarão de criar. É uma crise civilizacional, nada menos.


Das Virtudes Cívicas Clássicas Às Virtudes Pós-Modernas - Dos Tempos E Dos Modos, Paulo Ferreira da Cunha 2009 Universidade do Porto

Das Virtudes Cívicas Clássicas Às Virtudes Pós-Modernas - Dos Tempos E Dos Modos, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Ao mesmo tempo que importa recuperar, na nossa memória e na educação, os grandes exemplos dos virtuosos heróis e sábios da Antiguidade Clássica, que a deseducação tem olvidado, não se pode esquecer que o mundo pós-moderno em que vivemos requer de nós aptidões, virtualidades, posicionamentos diferentes. Não para caminharmos no sentido de todos os demais, mas para respondermos com valor aos reptos do presente. Este artigo procura conciliar, pois, o legado clássico das virtudes cívicas, com algumas propostas inspiradas em autores recentes (como Italo Calvino e Alain Finkielkraut) para o séc. XXI


Direito, Utopia E Insularidade, Paulo Ferreira da Cunha 2009 Universidade do Porto

Direito, Utopia E Insularidade, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Não é por acaso que tantas utopias literárias se localizam ficcionalmente em ilhas. Não é por acaso que as utopias são uma espécie de descrição constitucional sem as amarras dos artigos de um código de direito político. Não é por acaso que as ilhas, parecendo uma prisão, rodeada de mar por todos os lados, são afinal sonhos de onde se pode sair, voando. Não só em sonhos oníricos, mas em sonhos que se podem tornar realidade. Este artigo desenvolve as ligações entre os aspectos literários, políticos e jurídicos das utopias na sua dimensão insular.


Partial Textualism, Stephen Durden 2009 Florida Coastal School of Law

Partial Textualism, Stephen Durden

Stephen Durden

This Article seeks to demonstrate that plain meaning textualists do not apply plain meaning textualism to the entire Constitution. Instead, plain meaning textualists indulge their personal predilections and apply the doctrine of “partial textualism,” which selectively applies plain meaning textualism to only part of, rather than the entire, Constitution. Partial textualism destroys any possible fairness value to plain meaning textualism. Indeed, such an approach is entirely inconsistent with the goals of plain language textualism. Through examining the Takings Clause, this Article demonstrates that a plain meaning textualist will commonly apply plain meaning textualism to a part of the Constitution that ...


Deconstructing Transnationalism: Conceptualizing Metanationalism As A Putative Model Of Evolving Jurisprudence, Paul Enríquez 2009 The George Washington University Law School

Deconstructing Transnationalism: Conceptualizing Metanationalism As A Putative Model Of Evolving Jurisprudence, Paul Enríquez

Paul Enríquez

This Article builds upon Philip C. Jessup’s revolutionary scholarship to pave new pathways for interdisciplinary research and expand the normative constitutional framework of universal human problems. To that end, this Article ties American constitutional theory to the new era of international globalization and provides context that facilitates the discussion of racial and ethnic diversity in education from a domestic and international perspective. By arguing for compelling treatment of diversity in elementary and secondary learning institutions, this Article introduces a new theory of constitutional interpretation vis-à-vis international law. This theory, called metanationalism, rejects Harold Koh’s theory of transnationalism and ...


Free And Compulsory Education: A Social Revolution, Ranganath Vadapalli VG. 2009 Faculty of Law, ICFAI Foundation for Higher Education (IFHE)

Free And Compulsory Education: A Social Revolution, Ranganath Vadapalli Vg.

Dr. V.G.Ranganath

“The Roots of Violence: Wealth without work, Pleasure without conscience, Knowledge without character, Commerce without morality, Science without humanity, Worship without sacrifice, Politics without principles”-Mahatma Gandhi “Politics without principles, Education without character, Science without humanity, and Commerce without morality are not only useless, but also positively dangerous.” Sri Sathya Sai Baba “Children of India are our future”-Hon’ble Prime Minister Manmohan Singh


Lucy V. Adams, Sage Encyclopedia Of African American Education, Armando G. Hernandez 2009 St. Thomas University School of Law

Lucy V. Adams, Sage Encyclopedia Of African American Education, Armando G. Hernandez

Armando G. Hernandez

Each topic in this 2-volume encyclopedia is discussed as it relates to the education of African Americans. The entries provide a comprehensive overview of educational institutions at every level, from preschool through graduate and professional training, with special attention to historically and predominantly Black colleges and universities. The encyclopedia follows the struggle of African Americans to achieve equality in education—beginning among an enslaved population and evolving into the present—as the efforts of many remarkable individuals furthered this cause through court decisions and legislation.


Section 2(B) Advertising Rights On Government Property: Greater Vancouver Transportation Authority, A New Can Of Worms And The Liberty Two-Step?, Elaine Craig 2009 Selected Works

Section 2(B) Advertising Rights On Government Property: Greater Vancouver Transportation Authority, A New Can Of Worms And The Liberty Two-Step?, Elaine Craig

Elaine Craig

The Court’s recent decision in Vancouver Transportation is problematic for two reasons. First, the majority adopts an analytical framework for determining whether a claim triggers the positive rights/Baier analysis that essentially means that policies that restrict expressive rights based on groups rather than content will be very unlikely to fall within the scope of section 2(b). A better approach would be to characterize section 2(b) cases based on the nature of the claim rather than the nature of the restriction and to only apply the positive rights Baier/Dunmore criteria where the claim is for the ...


Apuntes Generales Sobre La Libertad De Expresión En Internet, Germán M. Teruel Lozano 2009 Junior researcher/Fellow assistant of the University of Murcia

Apuntes Generales Sobre La Libertad De Expresión En Internet, Germán M. Teruel Lozano

Germán M. Teruel Lozano

GENERAL NOTES ABOUT THE FREEDOM OF SPEECH IN INTERNET: This paper presents an overview of how Internet has revolutionized the setting of freedom of speech. In particular, it is focused in to main aspects: On one hand, the delimitation of freedom of expression in the new media, differentiating in particular between web pages dedicated to the dissemination of information, protected by the freedom of speech; and those that are intended to provide other telematics services, which should not have this protection. Secondly, it is also studied the legal status of this freedom when it is exercised through Internet.


Mechanisms For Resolving Divisive Issues In Constitutional Negotiations, Sujit Choudhry, Nicholas Haysom 2009 Berkeley Law

Mechanisms For Resolving Divisive Issues In Constitutional Negotiations, Sujit Choudhry, Nicholas Haysom

Sujit Choudhry

This issue paper is part of the ‘Constitution-making in Focus’ series and is focusing on how to deal with divisive issues in a constitution-making process. There can be no fool-proof algorithms for resolving divisive issues to achieve this end, but there are mechanisms with which every negotiation process should be equipped.


Procreation, Harm, And The Constitution, Carter Dillard 2009 Emory University

Procreation, Harm, And The Constitution, Carter Dillard

Carter Dillard

This Essay provides relatively novel answers to two related questions: First, are there moral reasons to limit the sorts of existences it is permissible to bring people into, such that one would be morally prohibited from procreating in certain circumstances? Second, can the state justify a legal prohibition on procreation in those circumstances using that moral reasoning, so that the law would likely be constitutional?

These questions are not new, but my answers to them are and add to the existing literature in several ways. First, I offer a possible resolution to a recent debate among legal scholars regarding what ...


Digital Commons powered by bepress