Digital Commons Network^™

Le Rôle Émergent De La Justice Dans La Reconstruction De L’État De Droit : Le Cas Du Liban D’Après‑Guerre, Georges Assaf

Proche-Orient, Études juridiques

No abstract provided.

Le Conseil D’État : Histoire Et Évolution, Antoine Khair

Proche-Orient, Études juridiques

No abstract provided.

Looking Inwards, Turning Away: A Review Of Rehan Abeyratne’S ‘Courts And Lgbtq+ Rights In An Age Of Judicial Retrenchment’, Jwalika Balaji

Socio-Legal Review

This review engages with Rehan Abeyratne's book Courts and LGBTQ+ Rights in an Age of Judicial Retrenchment, which examines judicial responses to LGBTQ+ claims over the past two decades across three jurisdictions — the United States, India, and Hong Kong. Abeyratne argues that the apex courts in these countries have grown more inward-looking and have enabled the rise of illiberal and authoritarian forces; however, LGBTQ+ rights have emerged as an exceptional site where these courts continue to extend minimal remedies and adopt a tone of empathy, positioning themselves as the last bastion of liberal constitutionalism. Focusing on recent developments …

The Possibilities Of Constitutional Education, Mark Jia

Georgetown Law Faculty Publications and Other Works

Constitutional scholarship has traditionally focused on formal constitutional actors: courts, legislatures, and executives. These actors are often regarded as primary sources of constitutional law, or in some cases, as final arbiters of constitutional meaning. More peripheral in this literature are actors thought to transmit what courts and high officials have established. These constitutional educators, including law professors, legal journalists, and civics planners, are often overlooked for defensible reasons: They lack the normative authorities of formal institutional actors, and they do not exercise power as it is often understood in public law.

This Article advances a general theory of constitutional education …

Pengabaian Hak Cipta Musik Dalam Pelatihan Algoritma Artificial Intelligence: Analisis Penggandaan Karya Dan Implikasi Hak Moral Pencipta, Adi Jaya, Reni B. Setianingrum

Jurnal Hukum & Pembangunan

The development of Artificial Intelligence in the music industry raises new legal challenges within copyright law, particulary regarding the use of copyrighted musical works as training data for AI algorithms, AI training processes typically involve digital reproduction, dataset storage, and musical pattern extraction, often conducted without consent or attribution, thereby posing risks to the protection of authors moral rights. This article examines whether AI training activities ca be legally classified as reproduction under Indonesia’s Copyright Law (Law No. 28 of 2014) and analyzes their implications for the protection of moral rights. Using a normative legal research method with statutory, conceptual, …

Problematika Penegakan Kode Etik Di Dpr Ri, Mayda Dewinta Putri, Deniza Saqina Utami, Gamaliel Basamido Sinaga, Mohammad Ramadhana Hasan, Kezia Eliora Zacharias

Jurnal Hukum & Pembangunan

The enforcement of the code of ethics in the House of Representatives (DPR) plays an important role in maintaining the dignity and accountability of the legislative body. However, in practice, this enforcement effort still faces various structural and cultural obstacles. This study aims to analyze the legal framework and mechanisms for enforcing the code of ethics in the DPR, as well as to identify the challenges that hinder its effectiveness. Using a descriptive juridical method, it was found that the Honorary Council of the House (MKD) and the Honorary Board (BK) as internal ethics enforcers are often constrained by political …

حول دستورية الحقوق والمبادئ الأساسية في قانون أصول المحاكمات الجزائية الجديد, دريد بشراوي

Proche-Orient, Études juridiques

No abstract provided.

Pour Une Théorie Générale Des Libertés Publiques Au Liban, Georges J. Assaf

Proche-Orient, Études juridiques

No abstract provided.

Is Originalism Orthodoxy?, Neel Sukhatme

Articles

What theory of constitutional interpretation has the Supreme Court followed? We search Supreme Court opinions for a wide range of sources that originalists identify as central to their methodology, over the entire universe of cases beginning in 1791. We find that for much of Supreme Court history, conventional indicators of originalist practice--citations to Founding-era sources--are largely absent, raising questions about originalism's past orthodoxy. Originalist citation practices are absent for much of the 19th century and grow sharply in the late 20th century. The Article elaborates the implications of these findings for debates in constitutional law.

The Holy Trinity: Religion Clauses And Education Funding On The Roberts Court, Philip T.K. Daniel, Jeffrey C. Sun

ConLawNOW

The Supreme Court’s trinity of education subsidy cases have created an emergent pattern in education funding cases that extend much further than just emphasizing rules of neutrality and accommodation. These also potentially harm minoritized perspectives and identities by moving far beyond historic doctrinal groundings of separation of church and state. In three key cases all authored by Chief Justice Roberts, Trinity Lutheran Church of Columbia, Inc. v. Comer (2017),  Espinoza v. Montana Department of Revenue (2020), and Carson v. Makin (2022), the Court in this “Holy Trinity” of decisions moved from a theory of benevolent neutrality to policy abdication, relinquishing …

Book Review: Justice Breyer's Problematic Pragmatism, Mark S. Kende

ConLawNOW

Courts often face difficult questions of statutory interpretation and constitutional interpretation. Various judges take different approaches. This essay reviews the book, Reading the Constitution, Why I Chose Pragmatism Not Textualism, authored by former U.S. Supreme Court Justice Stephen Breyer, who used methods that were often in the Court minority. Justice Breyer argued in favor of relying on purpose in federal statutory interpretation cases, and in favor of pragmatic balancing in federal constitutional cases. He was anti-formalistic and therefore generally opposed to textualism or originalism. The essay argues that this trade publication, intended for a general audience, has strengths and …

Betschart V. Oregon: A Seven-Day Standard For Maine, Henry Gates

Maine Law Review

Maine lacks a clear standard for ensuring the right to counsel for indigent defendants. The State’s public defense system is struggling to meet Maine’s constitutional mandate: To provide indigent defense services in rural areas and across the state. An aging bar with few new attorneys working in rural areas—where there are often higher relative prosecution rates and a corresponding increased need for legal services—is contributing to the problem. This has resulted in a legal system that negatively impacts rural communities and indigent defendants to the point that one court concluded the state is violating the Sixth Amendment. Following the Ninth …

The Other Right To Counsel: The Civil Guarantee In State Constitutions, Dmitry Bam

Maine Law Review

When most people speak of the right to counsel, they speak in the singular. After the Supreme Court’s seminal decision in Gideon v. Wainwright, the right to counsel in criminal prosecutions has become one of our most cherished fundamental rights. It is a right ingrained in our culture. Even children can recite the mantra that the accused have the right to a lawyer, and if they can’t afford a lawyer, one will be provided to them free of charge. It is no surprise, then, that our constitutional focus is trained on the criminal defendant’s right to counsel. After all, there …

United States V. Alfonso: The Eleventh Circuit's Choice To Follow The Tide Of Other Circuits In Deciding What Constitutes The High Seas, Jaidin Winsor

Ocean and Coastal Law Journal

In United States v. Alfonso, three appellants challenged the constitutionality of the assertion of subject matter jurisdiction by the United States over a vessel involved in illicit drug smuggling activity within the Exclusive Economic Zone (EEZ) of the Dominican Republic. On appeal the United States Court of Appeals for the Eleventh Circuit rejected this challenge. The decision made by the Eleventh Circuit Court of Appeals followed the approach taken explicitly by the Fourth Circuit and indirectly by the First and Second Circuits. This decision affirmed the expansive reach of United States territorial jurisdiction and is likely to encourage other cCircuits …

المادة ٤٩ من الدستور، وانتخاب حاكم مصرف لبنان لرئاسة الجمهورية, حسان تابت رفعت

Proche-Orient, Études juridiques

No abstract provided.

Mucho Ruido Y Pocas Nueces? Rethinking Mexico's Judicial Reform In Comparative Perspective, Oscar Serratos

Notre Dame Journal of International & Comparative Law

Mexico's 2024 judicial reform, which made it the first country to elect all judges by popular vote, has generated widespread criticism for allegedly threatening judicial independence and democratic governance. This Article challenges the prevailing narrative by arguing that many of these concerns overstate the reform's practical effect. Through a comparative analysis of Mexico's new constitutional framework and judicial electoral systems in the United States, the Article demonstrates that the reform incorporates structural safeguards—including balanced nomination powers, nonpartisan elections, restrictions on campaign financing, and continued judicial training—that set it apart from comparable American models. While acknowledging legitimate concerns regarding implementation and …

The Intertemporal Law Doctrine's Application To The Acquisition Of Colonies In The Americas, Kent Mcneil

Notre Dame Journal of International & Comparative Law

No abstract provided.

The Ten Commandments Cases And The Move Towards The Concrete In Establishment Clause Jurisprudence, Eric Rassbach

Journal of Catholic Legal Studies

(Excerpt)

First of all, thank you very much, Professor Movsesian, the Mattone Center, and St. John’s for inviting me here to speak today on what I believe is a very important issue. I will also say that I share Chris’s opinion that it’s great to work with him. He actually wrote a very compelling brief in our case at the Supreme Court called Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC back in 2012. That was the only brief mentioned by Justice Breyer during the argument, and it was also the only one cited in the Court’s unanimous decision. So, …

Religious Liberty And The New Ten Commandments Cases, Christopher C. Lund

Journal of Catholic Legal Studies

(Excerpt)

Thanks for having me. I’m grateful to St. John’s, the Mattone Center, and Professor Movsesian for the invitation. I’m glad to be here with Eric, whom I admire greatly. I’ve worked with Eric and Becket on several projects, and we see some things quite similarly. But on these issues, we see things differently, which I hope will make for good conversation.

Religious liberty is one of America’s great contributions to the world. Centuries ago, religious liberty brought an end to the war of religion. And in our modern society, religious liberty enables people to live together with fundamentally different …

Soft Establishment, Religious Education, And Stone V. Graham, Christopher C. Lund

Journal of Catholic Legal Studies

The Supreme Court has said the Establishment Clause should be interpreted in light of history and tradition. This Essay adds to the historical conversation by highlighting an overlooked dimension of religious establishment. Many recent decisions and commentary treat coercion as the central feature of establishment, often drawing on Michael McConnell’s identification of six common features of religious establishments. But McConnell’s categories were never meant to be exhaustive, and coercion alone cannot explain important parts of the historical record.

Religious education was central to religious establishment. Established religions took deliberate measures to secure the intergenerational transmission of the faith, a task …

Review Of Gautam Bhatia’S The Indian Constitution: A Conversation With Power, Aishwarya Singh

National Law School of India Review

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Procedural Drift: How Judicial Restraint Enables Legalized Backsliding, Dessie Otachliska

Washington and Lee Law Review

This Article introduces Procedural Drift, a new theory of constitutional erosion in which legality itself enables democratic decline. Legal forms remain intact, but their constraining force quietly recedes as procedural doctrines withdraw courts from sites of contestation. Executive power expands not by defying law, but by strategically complying with it—exploiting judicial restraint to evade review.

Building on Bruce Ackerman’s theory of constitutional moments and Kim Lane Scheppele’s concept of autocratic legalism, this Article develops a U.S.-specific account of democratic backsliding that is lawful, gradual, and institutionally embedded. It traces how judicial restraint—operating amid partisan alignment and epistemic fragmentation—erodes legal checks …

Abortion (Re)Federalization, Gerald S. Dickinson

Utah Law Review

 This Article examines how the U.S. Supreme Court’s Dobbs v. Jackson Women’s Health Organization decision has opened an unconventional pathway for the development of a new form of “bottom-up constitutionalism” that could reshape federal abortion rights in the future. Traditionally, federal constitutional law has exerted a dominant influence over state laws and state court jurisprudence. The uniformity in abortion protections nationwide for decades was a product of the Roe v. Wade era of federal supremacy. However, Dobbs reversed this dynamic by dramatically curtailing federal constitutional authority over abortion, thereby leaving states as primary rights regulators. This Article focuses on the …

The Contested Contingent Constitution: Plutocrats, Right-Wing Populists, And Labor Rights In The U.S., Kate Andrias

Faculty Scholarship

Constitutional labor rights have long been negligible in the United States. Now, with the ascendance of Donald Trump’s right-wing authoritarianism, even statutory labor rights are under threat. Yet there is an apparent paradox: While the Trump Administration seeks to declare the NLRB unconstitutional and has decimated federal workers’ rights, Trump’s “Make America Great Again” (MAGA) movement rose to power in part by invoking the plight of the American worker. The more populist wing of the American Right does not expressly challenge the constitutionality of labor law. Indeed, some right-wing populists urge an expansion of labor rights, emphasizing such goals as …

Mapping Minority Investigative Powers In Congress, David Rapallo

Georgetown Law Faculty Publications and Other Works

“Shut down the Senate . . .” “Roll over and play dead . . .” In the first hundred days of President Donald Trump’s second term, these were the rallying cries of two far ends of a debate among Democrats about how to respond to the administration’s unprecedented actions. This debate, which rages on today, has been marked by a lack of specificity about the various oversight tools available to members of the minority party in Congress, particularly when they investigate whether the Executive Branch is faithfully executing the laws Congress passes. Scholarship too has focused little on the full …

Classical Liberalism And Property, Thomas W. Merrill

Faculty Scholarship

Classical liberalism is characterized by several key attributes. Its central normative criterion is the well‑being of the individual, not some aggregate like society or the nation‑state. Individuals are presumptively regarded as responsible actors, capable of judging their own best interests and accountable for their actions that interfere with the well‑being of others. Because individuals are presumptively regarded as responsible actors, there is a strong preference for imposing only minimal obligations on them through the power of the state, and these usually involve general negative duties that are universal in character, chiefly to forbear from using force or fraud to interfere …

Presidential Immunity: Before And After Trump, Thomas P. Schmidt

Faculty Scholarship

“All the officers of government,” the Supreme Court said long ago, “from the highest to the lowest, are creatures of the law, and are bound to obey it.” Despite that ringing and categorical language, however, the Court has held that the President — the “highest” and most powerful of all government officers — is “immune” from judicial oversight in several respects. Indeed, when the Court held last Term that former presidents are presumptively immune from criminal prosecution for officials acts, the dissenters warned: “In every use of official power, the President is now a king above the law.”

This Article …

Free Expression And Civil Rights On Campus: Consistency And The Kant-Rawls Heuristic, David M. Schizer

Faculty Scholarship

Universities learned hard lessons in the months after Hamas attacked Israel on October 7. 2023. This painful and challenging time highlighted the urgent need to pursue two critical goals, which sometimes are in tension with each other. First, universities have to protect academic freedom and free expression. This is their life blood. Second, universities also have to honor their legal and moral obligation to combat discrimination, including antisemitism.

Yet this is easier said than done. Protecting free expression means allowing speech that is controversial and even offensive. But this speech can contribute to a hostile environment. So, in seeking both …

Other People's Poverty, Emmanuel Hiram Arnaud, Shaun Ossei-Owusu

Faculty Scholarship

Puerto Ricans have a relationship with the United States that is historically unparalleled. They have been citizens of the United States since 1917, served in every major conflict since World War I, and have been influential members of American culture, politics, and society. Yet, Puerto Rico is not fully part of the United States. The island of 3.2 million people— more than the population of eighteen states—is a U.S. territory. This means the federal government wields its complete and largely unrestrained plenary power over the Island, often treating Puerto Ricans differently than the rest of the United States. This differential …

Konstitusionalitas Kebijakan Penanaman Modal Asing Sebagai Penerapan Konsep Hak Menguasai Negara Menurut Uud Nri 1945, Rico Novianto, Satya Arinanto, Fatmawati Fatmawati

Jurnal Konstitusi & Demokrasi

This article analyzes how the state position in foreign investment as an instrument for realizing public prosperity. Throughout the history of Indonesian governance, foreign capital has been a tool that can be used and has its own constitutional basis. However, if it is too large and the lack of adequate regulation of foreign investment to maintain the investment climate, it has become one of the causes of the economic and multidimensional crisis, especially around 1998 in Indonesia. In fact, the constitution has mandated an economic system based on the concept of state control, the principles of economic democracy, and the …