Judge Posner's Simple Law,
2015
University of Pennsylvania Law School
Judge Posner's Simple Law, Mitchell N. Berman
Michigan Law Review
The world is complex, Richard Posner observes in his most recent book, Reflections on Judging. It follows that, for judges to achieve “sensible” resolutions of real-world disputes—by which Judge Posner means “in a way that can be explained in ordinary language and justified as consistent with the expectations of normal people” (p. 354)—they must be able to navigate the world’s complexity successfully. To apply legal rules correctly and (where judicial lawmaking is called for) to formulate legal rules prudently, judges must understand the causal mechanisms and processes that undergird complex systems, and they must be able to draw sound factual …
Countersupermajoritarianism,
2015
University of Colorado Law School
Countersupermajoritarianism, Frederic Bloom, Nelson Tebbe
Michigan Law Review
Our Constitution can change. We can amend it, update it, improve it. And so we have—twenty-seven times by one count, many more by another. Everyone recognizes this. But fewer people appreciate that the mechanics of constitutional change can change as well. A method of alteration unaddressed at the founding can grow into established practice. A procedure built into constitutional text can slip into disuse. As much as citizens can change the substance of the Constitution, they can also change the ways they change it. In Originalism and the Good Constitution, John McGinnis and Michael Rappaport make an elegant and provocative …
A Moment For Pragmatism,
2015
Stanford Law School
A Moment For Pragmatism, Jane S. Schacter
Michigan Law Review
One of the least controversial things to say about the U.S. Constitution is that it has proven very difficult to amend. The numbers are familiar. Only 27 amendments have been made since the Constitution was ratified, and 10 of those were adopted at the same time, only a few years after the original ratification. These numbers are all the more remarkable given that there have been over 11,500 attempts to amend the Constitution since it was first enacted. The paucity of amendments is also striking as a comparative matter. The national constitution that India approved in 1949 has been amended …
Saving Originalism,
2015
University of St. Thomas School of Law
Saving Originalism, Robert J. Delahunty, John Yoo
Michigan Law Review
It is sometimes said that biographers cannot help but come to admire, even love, their subjects. And that adage seems to ring true of Professor Amar, the foremost “biographer” of the Constitution. He loves it not just as a governing structure, or a political system, but as a document. He loves the Constitution in the same way that a fan of English literature might treasure Milton’s Paradise Lost or Shakespeare’s Macbeth. He loves the Constitution not just for the good: the separation of powers, federalism, and the Bill of Rights. He also loves it for its nooks and crannies, idiosyncrasies, …
Countersupermajoritarianism,
2015
Brooklyn Law School
Countersupermajoritarianism, Nelson Tebbe, Frederic Bloom
Faculty Scholarship
No abstract provided.
The Limits Of Free Speech,
2015
Boston College Law School
Comparative Environmental Constitutionalism,
2015
Widener University School of Law
Comparative Environmental Constitutionalism, Erin Daly, James May
Erin Daly
As more and more countries around the globe are amending their constitutions to recognises environmental rights and duties relating to air, water, the use of natural resources, sustainability, climate change, and more, courts are increasingly engaging with these provisions and developing a common constitutional law of environmental rights. This article examines this growing jurisprudence and surveys the central axes around which debates about environmental constitutionalism revolve. First, we examine whether environmental rights are more suitably advanced at the international level or at the national level of constitutional law, as is increasingly the case; the former offers two alternatives—protecting the environment …
To Furman Or Not To Furman,
2015
Santa Barbara College of Law
To Furman Or Not To Furman, Robert M. Sanger
Robert M. Sanger
In capital litigation, the United States Supreme Court in Furman v. Georgia and following cases required capital punishment systems to have a form of "narrowing" so that the death penalty was imposed only on the worst of the worst. The death penalty states have failed to successfully implement this concept. As a result, "narrowing" is currently raised in all capital cases by competent defense counsel both at trial and in post conviction litigation. It is raised in addition to all other issues, including issues related to the questions of whether exclusion from the death penalty should be expanded and whether …
Foreign Precedents In Constitutional Adjudication By The Supreme Court Of Singapore, 1963–2013,
2015
Singapore Management University
Foreign Precedents In Constitutional Adjudication By The Supreme Court Of Singapore, 1963–2013, Jack Tsen-Ta Lee
Jack Tsen-Ta LEE
This article surveys the use of foreign precedents in constitutional adjudication by the Supreme Court of Singapore for over a half century during the terms of the first three Chief Justices—Wee Chong Jin (1963–1990), Yong Pung How (1990–2006), and Chan Sek Keong (2006–2012)—and the first year in office of the fourth Chief Justice, Sundaresh Menon (2012–2013). It concludes that while judges have always cited foreign case law, they have only actually applied foreign cases where the wording of the Constitution and the constitutional arrangements in Singapore are fairly analogous to the constitutional texts and arrangements upon which the cases were …
Protecting Sacred Ground: The San Manuel Ruling And Implications For Indian Cultural Resource Preservation,
2015
University of the District of Columbia School of Law
Protecting Sacred Ground: The San Manuel Ruling And Implications For Indian Cultural Resource Preservation, Gray O'Dwyer
University of the District of Columbia Law Review
Six hundred years ago, all land in America was Indian land.1 Then,"[Europe] conducted some of her adventurous sons into this western world.., and discovery gave title... [which] could be consummated by possession."2 This "doctrine of discovery," agreed upon between colonial powers, essentially granted title to anyone who could occupy American soil. Europeans quickly scrambled to negotiate peace treaties with native tribes so that they could install settlers and thereby claim territory. The inherent problems with these treaties were numerous; beyond conflicting interests,3 outright fraud,4 and language barriers, the terms of transfer were inherently invalid because the government that was taking …
Pengaruh Konfigurasi Politik Terhadap Produk Hukum Pada Masa Pemerintahan Soeharto Di Indonesia,
2015
Faculty of Law Universitas Indonesia
Pengaruh Konfigurasi Politik Terhadap Produk Hukum Pada Masa Pemerintahan Soeharto Di Indonesia, Ryan Muthiara Wasti
Jurnal Hukum & Pembangunan
Soeharto government becomes an interesting theme for nearly every research because of the uniqueness of the rule known as the authoritarian nature. However, the uniqueness is only studied until the result of the authoritarian who has raised the swelter of almost all the people and eventually led to the cessation of Soeharto as the head of the State Indonesia. Yet seen from the eyes of the law, the political transition in the future not only of political influence, but also legally so as to distinguish between authoritarian rule and democratic governance. This study will address these problems are divided into …
A Half-Baked Law: How The Supreme Court's Decision In Koontz V. St. Johns River Water Management District Misses A Key Ingredient To Fifth Amendment Protection,
2015
Brigham Young University Law School
A Half-Baked Law: How The Supreme Court's Decision In Koontz V. St. Johns River Water Management District Misses A Key Ingredient To Fifth Amendment Protection, Garrett W. Messerly
BYU Law Review
No abstract provided.
March 29, 2015: How To Think About Religious Exemptions,
2015
Duquesne University
March 29, 2015: How To Think About Religious Exemptions, Bruce Ledewitz
Hallowed Secularism
Blog post, “How to Think about Religious Exemptions“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Fundamental Unenumerated Rights Under The Ninth Amendment And Privileges Or Immunities Clause,
2015
Indiana Tech Law School
Fundamental Unenumerated Rights Under The Ninth Amendment And Privileges Or Immunities Clause, Adam Lamparello
Adam Lamparello
The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities Clause provides that …
Summary Of Pitmon V. State, 131 Nev. Adv. Op. 16 (Mar. 26, 2015),
2015
Nevada Law Journal
Summary Of Pitmon V. State, 131 Nev. Adv. Op. 16 (Mar. 26, 2015), Aleem Dhalla
Nevada Supreme Court Summaries
The Court determined that (1) NRS 176.035(1) was not unconstitutionally vague, (2) is its grant of discretion to district court judges was not unconstitutionally arbitrary, and (3) Nevada’s sentencing scheme does provide meaning appellate review of district court sentencing.
March 25, 2015: Holding Back The Chinese Tide,
2015
Duquesne University
March 25, 2015: Holding Back The Chinese Tide, Bruce Ledewitz
Hallowed Secularism
Blog post, “Holding Back the Chinese Tide“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
The Evolution Of Equality In American Law,
2015
Cornell Law School
The Evolution Of Equality In American Law, Gerald Torres
Gerald Torres
No abstract provided.
Social Movements And The Ethical Construction Of Law,
2015
Cornell Law School
Social Movements And The Ethical Construction Of Law, Gerald Torres
Gerald Torres
No abstract provided.
The Evolution Of Equality In American Law,
2015
Cornell Law School
The Evolution Of Equality In American Law, Gerald Torres
Gerald Torres
No abstract provided.
Social Movements And The Ethical Construction Of Law,
2015
Cornell Law School
Social Movements And The Ethical Construction Of Law, Gerald Torres
Gerald Torres
No abstract provided.
