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Deconstructing Nondelegation, Cynthia R. Farina 2010 Cornell Law School

Deconstructing Nondelegation, Cynthia R. Farina

Cornell Law Faculty Publications

This Essay (part of the panel on "The Administrative State and the Constitution" at the 2009 Federalist Society Student Symposium) suggests that the persistence of debates over delegation to agencies cannot persuasively be explained as a determination finally to get constitutional law “right,” for nondelegation doctrine—at least as traditionally stated—does not rest on a particularly sound legal foundation. Rather, these debates continue because nondelegation provides a vehicle for pursuing a number of different concerns about the modern regulatory state. Whether or not one shares these concerns, they are not trivial, and we should voice and engage them directly ...


Placing Your Faith In The Constitution, Harold H. Bruff 2010 University of Colorado Law School

Placing Your Faith In The Constitution, Harold H. Bruff

Articles

No abstract provided.


The Argument For Same-Sex Marriage, Nelson Tebbe, Deborah A. Widiss, Shannon Gilreath 2010 Cornell Law School

The Argument For Same-Sex Marriage, Nelson Tebbe, Deborah A. Widiss, Shannon Gilreath

Cornell Law Faculty Publications

Professors Tebbe and Widiss revisit the arguments they made in "Equal Access and the Right to Marry" and emphasize their belief that distinguishing between different-sex marriage and same-sex marriage is inappropriate. They lament the sustained emphasis on the equal-protection and substantive-due-process challenges in the Perry litigation and suggest that an equal-access approach is more likely to be successful on appeal.

Professor Shannon Gilreath questions some of the fundamental premises for same-sex marriage. He challenges proponents to truly reflect on "what there is to commend marriage to Gay people," and points to his own reversal on the question as evidence. Though ...


Re-Examining Customary International Law And The Federal Courts: An Introduction, Anthony J. Bellia 2010 Notre Dame Law School

Re-Examining Customary International Law And The Federal Courts: An Introduction, Anthony J. Bellia

Journal Articles

Legal scholars have debated intensely the role of customary international law in the American federal system. The debate involves serious questions surrounding the United States's constitutional structure, foreign relations, and human rights. Despite an impressive body of scholarship, the debate has stood at an impasse in recent years, without either side garnering a consensus. This symposium–Re-examining Customary International Law and the Federal Courts–aspires to help advance the debate over the status of customary international law in the federal courts.

The symposium received thoughtful and constructive contributions from Professors Curtis A. Bradley, Bradford R. Clark, Andrew Kent, Carlos ...


Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

Completing Caperton And Clarifying Common Sense Through Using The Right Standard For Constitutional Judicial Recusal, Jeffrey W. Stempel

Scholarly Works

In Caperton v. A.T. Massey Coal Co., the U.S. Supreme Court vacated a state supreme court decision in which a justice who had received $3 million in campaign support from a litigant cast the deciding vote to relieve the litigant of a $50 million liability. The Court reached this result, one I view as compelled by common sense, through a 5-4 vote, with the dissenters, led by Chief Justice John Roberts and Justice Antonin Scalia, minimizing the danger of biased judging presented by the situation and questioning the practical feasibility of the Court's approach as well as ...


Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel 2010 University of Nevada, Las Vegas -- William S. Boyd School of Law

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Scholarly Works

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the ...


The Future Of Section 2 Of The Voting Rights Act In The Hands Of A Conservative Court, Luis Fuentes-Rohwer 2010 Indiana University Maurer School of Law

The Future Of Section 2 Of The Voting Rights Act In The Hands Of A Conservative Court, Luis Fuentes-Rohwer

Articles by Maurer Faculty

This Essay argues that the future of the majority-minority district is in peril, as a conservative majority on the Court stands poised to strike down section 2 of the Voting Rights Act. When the Court takes up the constitutionality of Section 2, binding precedent will play a secondary role at best. Instead, the Justices’ policy goals and ideological preferences - namely, their personal disdain for the use of race in public life - will guide the Court’s conclusion. In this vein, Justice Kennedy holds the fate of the Act in his hands. To be clear, this Essay is not trying to ...


Equal Access And The Right To Marry, Deborah Widiss, Nelson Tebbe 2010 Indiana University Maurer School of Law

Equal Access And The Right To Marry, Deborah Widiss, Nelson Tebbe

Articles by Maurer Faculty

How should courts think about the right to marry? This is a question of principle, of course, but it has also become a matter of litigation strategy for advocates challenging different-sex marriage requirements across the country. We contend that courts and commentators have largely overlooked the strongest argument in support of a constitutional right to marry. In our view, the right to marry is best conceptualized as a matter of equal access to government support and recognition and the doctrinal vehicle that most closely matches the structure of the right can be found in the fundamental interest branch of equal ...


Giles V. California: Forfeiting Justice Instead Of Confrontation Rights In The Court’S Most Recent Forfeiture By Wrongdoing Jurisprudence, Stephanie Bignon 2010 University of Maryland Francis King Carey School of Law

Giles V. California: Forfeiting Justice Instead Of Confrontation Rights In The Court’S Most Recent Forfeiture By Wrongdoing Jurisprudence, Stephanie Bignon

Maryland Law Review

No abstract provided.


Treaties As Law And The Rule Of Law: The Judicial Power To Compel Domestic Treaty Implementation, William M. Carter Jr. 2010 University of Maryland Francis King Carey School of Law

Treaties As Law And The Rule Of Law: The Judicial Power To Compel Domestic Treaty Implementation, William M. Carter Jr.

Maryland Law Review

No abstract provided.


Brown V. Hovatter: Announcing The Death Of Rights For Out-Of-State Parties In Fourth Circuit Dormant Commerce Clause Jurisprudence, Lauren C. Genvert 2010 University of Maryland Francis King Carey School of Law

Brown V. Hovatter: Announcing The Death Of Rights For Out-Of-State Parties In Fourth Circuit Dormant Commerce Clause Jurisprudence, Lauren C. Genvert

Maryland Law Review

No abstract provided.


“Hard Strikes And Foul Blows”: Berger V. United States 75 Years After, Bennett L. Gershman 2010 Elisabeth Haub School of Law at Pace University

“Hard Strikes And Foul Blows”: Berger V. United States 75 Years After, Bennett L. Gershman

Pace Law Faculty Publications

My essay examines one of the most iconic decision of the Supreme Court seventy five years later. Berger v. United States is the most eloquent and authoritative description of the prosecutor's duty "not that it shall win a case but that justice shall be done." My essay looks at why the Court decided to take up the case then, and why it has become so prominent in criminal law and ethics.


Untangling Double Jeopardy In Mixed-Verdict Cases, Lissa Griffin 2010 Elisabeth Haub School of Law at Pace University

Untangling Double Jeopardy In Mixed-Verdict Cases, Lissa Griffin

Pace Law Faculty Publications

This Article attempts to describe and untangle the confusion leading up to and resulting from the Yeager decision. Part II examines the four distinct double jeopardy areas presented in Yeager, with particular emphasis on the two conflicting precedents of collateral estoppel and the non-finality of a hung jury. Part III closely examines the Yeager decision itself. Part IV analyzes Yeager in light of its tangled doctrinal history and places it in the context of the Court's several other short-lived and rapidly reversed precedents. The Article concludes that the Court's holding in Yeager is neither justified by its precedent ...


Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman 2010 Elisabeth Haub School of Law at Pace University

Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman

Pace Law Faculty Publications

This article examines the Supreme Court’s student speech framework and argues that, in focusing exclusively on the types of student speech that can be restricted, the framework fails to build in any differentiation as to how such speech can be restricted. This is true even though there are two very distinct types of speech restrictions in schools: suppression of the speech itself; and after-the-fact punishment of the student speaker. As the student speech landscape itself gets more complex – given schools’ experimentation with new disciplinary regimes along with the tremendous rise in student cyber-speech – the blurring of that distinction has ...


On The Constitutionality Of Health Care Reform, Barak D. Richman 2010 Duke Law School

On The Constitutionality Of Health Care Reform, Barak D. Richman

Faculty Scholarship

This commentary describes the legal challenges to the Patient Protection and Affordable Care Act.


Legalism And Decisionism In Crisis, Noa Ben-Asher 2010 Elisabeth Haub School of Law at Pace University

Legalism And Decisionism In Crisis, Noa Ben-Asher

Pace Law Faculty Publications

In the years since September 11, 2001, scholars have advocated two main positions on the role of law and the proper balance of powers among the branches of government in emergencies. This Article critiques these two approaches-which could be called Legalism and Decisionism-and offers a third way. Debates between Legalism and Decisionism turn on (1) whether emergencies can be governed by prescribed legal norms; and (2) what the balance of powers among the three branches of government should be in emergencies. Under the Legalist approach, legal norms can and should guide governmental response to emergencies, and the executive branch is ...


The Government-Speech Doctrine: “Recently Minted,” But Counterfeit, Steven H. Goldberg 2010 Elisabeth Haub School of Law at Pace University

The Government-Speech Doctrine: “Recently Minted,” But Counterfeit, Steven H. Goldberg

Pace Law Faculty Publications

The foci of this Article are the ill-advised creation of a government-speech doctrine in Pleasant Grove City v. Summum, 129 S. Ct. 1125 (2009), and its potential for substantial First Amendment mischief particularly with respect to the establishment of religion. Created out of whole cloth, with no regard for precedent, and in a case that did not even raise the issue of government speech, the doctrine permits the government to speak with viewpoint about controversial cultural issues upon which the government has no constitutional right to act. Asked to find unconstitutional the refusal of a municipality to allow a Summum ...


Are National Class Actions Constitutional?: A Reply To Hogg And Mckee, Janet Walker 2010 Osgoode Hall Law School of York University

Are National Class Actions Constitutional?: A Reply To Hogg And Mckee, Janet Walker

Osgoode Hall Law Journal

This article argues that there is no constitutional impediment to the certification of multijurisdictional class actions by provincial superior courts, and no constitutional requirement to confine plaintiff classes to those in which each claim has a real and substantial connection to the forum. Neither the text of the Constitution nor the constitutionally mandated rules of the conflict of laws restrict court jurisdiction in this way. Rather, the principles of order and fairness require Canadian courts to exercise jurisdiction over multi-jurisdictional class actions in a way that maximizes the objectives of class actions, and minimizes the incidence of overlapping classes and ...


Governing Gambling In The United States, Maria E. Garcia 2010 Claremont McKenna College

Governing Gambling In The United States, Maria E. Garcia

CMC Senior Theses

The role risk taking has played in American history has helped shape current legislation concerning gambling. This thesis attempts to explain the discrepancies in legislation regarding distinct forms of gambling. While casinos are heavily regulated by state and federal laws, most statutes dealing with lotteries strive to regulate the activities of other parties instead of those of the lottery institutions. Incidentally, lotteries are the only form of gambling completely managed by the government. It can be inferred that the United States government is more concerned with people exploiting gambling than with the actual practice of wagering.

In an effort to ...


The Scope Of Congress's Thirteenth Amendment Enforcement Power After City Of Boerne V. Flores, Jennifer Mason McAward 2010 Notre Dame Law School

The Scope Of Congress's Thirteenth Amendment Enforcement Power After City Of Boerne V. Flores, Jennifer Mason Mcaward

Journal Articles

Section Two of the Thirteenth Amendment grants Congress power “to enforce this article by appropriate legislation.” In Jones v. Alfred H. Mayer Co., the Supreme Court held that Section Two permits Congress to define the “badges and incidents of slavery” and pass “all laws necessary and proper” for their abolition. Congress has passed a number of civil rights laws under this understanding of its Section Two power. Several commentators have urged Congress to expansively define the “badges and incidents of slavery” and use Section Two to address everything from racial profiling to discrimination on the basis of gender and sexual ...


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