Constitutional Law Commons^™

Details Of Committee Membership At The Federal Convention, Peter Aschenbrenner

Peter J. Aschenbrenner

From May 25 through September 13, 1787 the convention appointed twelve committees of which eleven reported. (The work of the Committee of the Whole House, technically not a committee, is addressed elsewhere.) Our Constitutional Logic calendars the committees by full name, date established and the date on which it reported to the convention. Each delegate’s assignments are then detailed and cumulated; the reader can identify the ‘never serving’ delegates – there are 19 of 55 who never served – and the workhorse delegates: King and Williamson served on five committees apiece, with King taking ‘top committeeman’ honours based on his …

The Standard Model Introduced, Peter Aschenbrenner

Peter J. Aschenbrenner

The standard model offers civil society’s perspective on the creation, management and disposition of political society. There is a one-to-one relationship between a civil society and a political society. Each political society creates, manages and disposes of systems. Taken as a system-of-systems, a political society fulfills service missions on behalf of and at the behest of the civil society. Agreement on this point may be drawn from Aristotle to Burke: civil society views a political society as a contrivance to fulfill its needs. Our Constitutional Logic offers three purposes of political societies considered as constructs within civil or bourgeois society: …

The Standard Model And Its Service Missions, Peter Aschenbrenner

Peter J. Aschenbrenner

The standard model offers civil society’s perspective on the creation, management and disposition of political society. For purposes of this investigation, political societies are treated as chartered organizations. Taken as a system-of-systems, a political society fulfills service missions on behalf of and at the behest of the civil society. What are service missions? What are types of service missions? And how do they differ from systems? Our Constitutional Logic answers these questions.

El Estado Y La Universidad A La Luz De La Constitución, Daniel Soria Luján

Daniel Soria Luján

No abstract provided.

Indemnification As An Alternative To Nullification, Robert A. Mikos

Montana Law Review

No abstract provided.

Taking Cues From Congress: Judicial Review, Congressional Authorization, And The Expansion Of Presidential Power, David H. Moore

Notre Dame Law Review

In evaluating whether presidential acts are constitutional, the Supreme Court often takes its cues from Congress. Under the Court’s two most prominent approaches for gauging presidential power—Justice Jackson’s tripartite framework and the historical gloss on executive power—congressional approval of presidential conduct produces a finding of constitutionality. Yet courts and commentators have failed to recognize that congressional authorization may result from a failure of checks and balances. Congress may transfer power to the President against institutional interest for a variety of reasons. This key insight calls into question the Court’s reflexive reliance on congressional authorization. Through this reliance, the Court overlooks …

Reflections On Comity In The Law Of American Federalism, Gil Seinfeld

Notre Dame Law Review

Comity is a nebulous concept familiar to us from the law of international relations. Roughly speaking, it describes a set of reciprocal norms among nations that call for one state to recognize, and sometimes defer to, the laws, judgments, or interests of another. Comity also features prominently in the law of American federalism, but in that context, it operates within limits that have received almost no attention from scholarly commentators. Specifically, although courts routinely describe duties that run from one state to another, or from the federal government to the states, as exercises in comity, they almost never rely on …

A New Understanding Of Gang Injunctions, Wesley F. Harward

Notre Dame Law Review

There were over 1.4 million active gang members in the United States as of 2011—an increase of forty percent in gang membership from 2009. It is estimated that “[g]angs are responsible for an average of 48 percent of violent crime in most jurisdictions and up to 90 percent in several others.” Many of the more than 33,000 gangs are increasing in sophistication and organization. Additionally, these “[g]angs are increasingly engaging in nontraditional gang-related crime, such as alien smuggling, human trafficking, and prostitution.”

The rise in gang membership and gang violence “has overwhelmed conventional law enforcement techniques.” State legislatures, city attorneys, …

Tribal Disruption And Federalism, Matthew L.M. Fletcher

Montana Law Review

No abstract provided.

Billings Gazette V. City Of Billings: Examining Montana's New Exception To The Public's Right To Know, Adam Wade

Montana Law Review

No abstract provided.

The Factual Reality Of Koontz V. St. Johns, Eric Dean Hageman

Notre Dame Law Review Reflection

The Court’s opinion in Koontz has elicited many negative reactions in academia, most of which focus on the expansion of Nollan and Dolan to monetary exactions. Criticisms run the gamut: some scholars argue that the Court was wrong to ignore the environmental impact of land developments, while others suggest the Court gave the same consideration too much credence. These criticisms are likely premature and necessarily speculative, since the Court decided the case less than two years ago.

Scholars have scrutinized this case’s factual and procedural history less closely, and those elements may justify the Court’s holding. Two often-overlooked facts are …

Bond V. United States, Dean M. Nickles

Notre Dame Law Review Reflection

Although the majority’s outcome was correct, the application of the clear statement rule in this situation seems incorrect. The majority misconstrues the statute not to reach Mrs. Bond’s conduct when it should have done so. The concurrences properly assert that despite the conduct here falling within the clear definition of the statute, the Court should have reversed the conviction on constitutional grounds. As a result of this decision, Congress should now plan to make clarifying statements about the scope of the statute in order to avoid the clear statement problem identified here.

Separately, although only dicta, Justice Scalia’s assertion that …

Partisan Balance Requirements In The Age Of New Formalism, Ronald J. Krotoszynski

Notre Dame Law Review

This Article considers the constitutional status of mandatory partisan balance requirements for presidential appointments to independent federal agencies. Since the 1880s, Congress routinely has included partisan balance requirements, along with fixed terms of office and “good cause” limitations on the President’s removal power, as standard design elements in its template for independent federal agencies. Until recently, both federal courts and most legal scholars have assumed the constitutionality of such restrictions on the President’s appointment power—and with good reason, given the ubiquity of partisan balance requirements and the executive branch’s historical acquiescence to them. However, the Supreme Court’s decision in Free …

The Future Of Federalism, From The Bottom Up, Anthony Johnstone

Montana Law Review

No abstract provided.

Democracy, Foot Voting, And The Case For Limiting Federal Power, Ilya Somin

Montana Law Review

No abstract provided.

Epilogue: The New Deal At Bay, Herbert J. Hovenkamp

All Faculty Scholarship

The Opening of American Law examines changes in American legal thought that began during Reconstruction and the Gilded Age, and extending through the Kennedy/Johnson eras. During this period American judges and legal writers embraced various conceptions of legal "science," although they differed about what that science entailed. Beginning in the Gilded Age, the principal sources were Darwinism in the biological and social sciences, marginalism in economics and psychology, and legal historicism. The impact on judicial, legislative, and later administrative law making is difficult to exaggerate. Among the changes were vastly greater use of behavioral or deterrence based theories of legal …

Rethinking The Order Of Battle In Constitutional Torts: A Reply To John Jeffries, Nancy Leong

Northwestern University Law Review

No abstract provided.

The Demise Of "Drive-By Jurisdictional Rulings", Howard M. Wasserman

Northwestern University Law Review

No abstract provided.

A Foucauldian Call For The Archaeological Excavation Of Discourse In The Post-Boumediene Habeas Litigation, Jonathan David Shaub

Northwestern University Law Review

No abstract provided.

Party Polarization And Congressional Committee Consideration Of Constitutional Questions, Neal Devins

Northwestern University Law Review

No abstract provided.