Constitutional Law Commons^™

Constructing The Other: U.S. Muslims, Proposed Anti-Sharia Law, And The Constitutional Consequences Of Volatile Intercultural Rhetoric, Carlo A. Pedrioli

Carlo A. Pedrioli

Recently, legislators have proposed, discussed, and passed various laws that aimed to limit the use of foreign law, international law, and Sharia (a branch of Islamic law) in state court systems. Because it became law, one proposed state constitutional amendment that rhetorically linked Sharia to foreign and international law is of particular note. In the 2010 midterm elections, Oklahoma passed State Question 755 (SQ 755), a constitutional amendment that aimed to place restrictions on the use of foreign law, international law, and Sharia in Oklahoma courts.

Laws like Oklahoma’s State Question 755 are problematic for a variety of reasons. One …

The Primary Right, Carter Dillard

Carter Dillard

As climate change materializes, legal theorists face the urgent need to develop a normative baseline for environmental regulation. Meanwhile, in the seemingly unrelated field of political exit theory, theorists have presumed that while one ought to be able to exit any polity one cannot exit all polities. This essay challenges that presumption, and simultaneously addresses the baseline problem in environmental law, by combining the analyses to develop a new human right derived from exit right theory called the primary right: a general claim-right of reasonable access to wilderness. The derivation is simple: If consent is necessary to justify political association, …

Empathy With Animals: A Litmus Test For Legal Personhood?, Carter Dillard

Carter Dillard

Is there any relationship between the disposition of some humans to empathize with and respond to the interests of nonhuman animals, and the criteria we ought to use for determining who becomes a legal person? This brief essay argues that there is, by employing a thick conception of legal personhood, and suggests that criteria be used to determine who constitutes our legality in the future.

Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent

Brannon P. Denning

Recent constitutional scholarship has focused on how courts—the Supreme Court in particular—“implements” constitutional meaning through the use of doctrinal constructs that enable judges to decide cases. Judges first fix constitutional meaning, what Mitchell Berman terms the “constitutional operative proposition,” but must then design “decision rules” that render the operative proposition suitable to use in the third step, the resolution of the case before the court. These decision rules produce the familiar apparatus of constitutional decisionmaking—strict scrutiny, rational basis review, and the like. For the most part, writers have adopted a binary view of doctrine. Doctrinal tests can defer or not …

"The Endurance Of National Constitutions", Sergio Verdugo Sverdugor@Udd.Cl

Sergio Verdugo R.

No abstract provided.

Problemas Del Plebiscito Como Instrumento Democrático Y Como Decisor De Políticas Públicas, Sergio Verdugo Sverdugor@Udd.Cl

Sergio Verdugo R.

No abstract provided.

Living Originalism - Jack M. Balkin, Sergio Verdugo Sverdugor@Udd.Cl

Sergio Verdugo R.

No abstract provided.

Valuing Publication And Attribution In Intellectual Property, Christopher Sprigman, Christopher Buccafusco, Zachary Burns

Christopher Sprigman

This is the third in a series of articles focusing on the experimental economics of intellectual property. In earlier work, we have experimentally studied the ways in which creators assign monetary value to the things that they create. That research has suggested that creators are subject to a systematic bias that leads them to overvalue their work. This bias, which we have called the 'creativity effect,' potentially results in inefficient markets in IP, because creators may be unwilling to license their works for rational amounts. Our prior research, however, like American IP law itself, focused exclusively on the monetary value …

Inextricably Political: Race, Membership And Tribal Sovereignty, Sarah Krakoff

Sarah Krakoff

Courts address equal protection questions about the distinct legal treatment of American Indian tribes in the following dichotomous way: are classifications concerning American Indians “racial or political?” If the classification is political (i.e. based on federally recognized tribal status or membership in a federally recognized tribe) then courts will not subject it to heightened scrutiny. If the classification is racial rather than political, then courts may apply heightened scrutiny. This article challenges the dichotomy itself. The legal categories “tribe” and “tribal member” are themselves political, and reflect the ways in which tribes and tribal members have been racialized by U.S. …

Stare Decisis And Foreign Affairs, Michael P. Van Alstine

Faculty Scholarship

This article examines whether the jurisprudential and institutional premises of the doctrine of stare decisis retain their validity in the field of foreign affairs. The proper role of the judicial branch in foreign affairs has provoked substantial scholarly debates—historical, institutional, normative—since the very founding of the republic. Precisely because of the sensitivity of the subject, the Supreme Court itself has both cautioned about the judicial branch’s comparative lack of expertise in the field and recognized a web of deference doctrines designed to protect against improvident judicial action. Notwithstanding all of this, however, neither the Supreme Court nor any scholar has …

Defining Corruption And Constitutionalizing Democracy, Deborah Hellman

Faculty Scholarship

The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on giving and spending money in connection with elections only when they serve to avoid corruption or its appearance. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides have missed the more …

Redeeming And Living With Evil, Mark A. Graber

Faculty Scholarship

Jack Balkin’s Constitutional Redemption and Sandy Levinson’s Constitutional Faith understand the problem of constitutional evil quite differently than Dred Scott and the Problem of Constitutional Evil. Balkin and Levinson regard constitutional redemption and faith as rooted in the possibility that Americans will eventually defeat evil. Constitutional Evil takes the far more pessimistic view that evil will never be defeated. Constitutional faith and redemption in our permanently fallen state is rooted in the possibility that Americans will find ways of living with each other peaceably knowing that the price of union is the continual obligation to make what the abolitionist …

The Constitutional Bounding Of Adjudication: A Fuller(Ian) Explanation For The Supreme Court's Mass Tort Jurisprudence, Donald G. Gifford

Faculty Scholarship

In this Article, I argue that the Supreme Court is implicitly piecing together a constitutionally mandated model of bounded adjudication governing mass torts, using decisions that facially rest on disparate constitutional provisions. This model constitutionally restricts common law courts from adjudicating the rights, liabilities, and interests of persons who are neither present before the court nor capable of being defined with a reasonable degree of specificity. I find evidence for this model in the Court’s separate decisions rejecting tort-based climate change claims, global settlements of massive asbestos litigation, and punitive damages awards justified as extra-compensatory damages. These new forms of …

Can He Legally Do That? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival

Faculty Scholarship

No abstract provided.

Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber

Faculty Scholarship

The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of …

United States V. Klein, Then And Now, Gordon G. Young

Faculty Scholarship

United States v. Klein, decided during Reconstruction, was the first Supreme Court case to invalidate a statutory restriction on federal courts’ jurisdiction. It is the only one to do so by finding a violation of Article III of the Constitution. Klein has been cited in thirty-three United States Supreme Court opinions, and roughly five hundred times each by lower federal courts and law journal articles. Recent commentators have read Klein both too broadly and narrowly. Its central holding is that Congress may not grant federal courts jurisdiction to decide a set of cases on the merits while depriving them …

Incitement To Riot In The Age Of Flash Mobs, Margot E. Kaminski

Publications

As people increasingly use social media to organize both protests and robberies, government will try to regulate these calls to action. With an eye to this intensifying dynamic, this Article reviews First Amendment jurisprudence on incitement and applies it to existing statutes on incitement to riot at a common law, state, and federal level. The article suggests that First Amendment jurisprudence has a particularly tortuous relationship with regulating speech directed to crowds. It examines current crowd psychology to suggest which crowd behavior, if any, should as a matter of policy be subject to regulation. It concludes that many existing incitement-to-riot …

Florida's First Constitution, M C. Mirow

Faculty Books

The central square of St. Augustine, Florida, the Plaza de la Constitución, is not named for the United States Constitution. Instead, its name comes from Florida’s first constitution, the Spanish Constitution of Cádiz of 1812. Daily political life in Florida’s Spanish colonial cities was governed by this document, and cities like St. Augustine ordered their activities around the requirements, rights, and duties expressed in this constitution. The Constitution of Cádiz was the first truly transatlantic constitution because it applied to the entire Spanish empire, of which St. Augustine and Pensacola were just a part. It was drafted by representatives from …

Constitutional Catastrophe: The National Defense Authorization Act Vs. The Bill Of Rights, Shahid Buttar

Public Interest Law Reporter

No abstract provided.

The Illinois Eavesdropping Statute: Constitutional Rights Versus Felony Charges, Corinne Koopman

Public Interest Law Reporter

No abstract provided.