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- Constitutional Law (5)
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- Article III (2)
- Compensation Clause (2)
- Direct-Consumption Tax (2)
- Due Process of Law (2)
- Due process (2)
- Federalism (2)
- Freedom of Speech (2)
- Hatter (2)
- Hylton v. United States (2)
- Judicial independence (2)
- Taxing power (2)
- United States. Supreme Court (2)
- " Income Tax Cases (1)
- "taxes on incomes (1)
- 15th amendment (1)
- 1797 Revenue Act (1)
- A Black Critique of the Internal Revenue Code (1)
- America (1)
- Antibootlegging (1)
- Autonomy (1)
- BMW of North America (1)
- Beverly Moran (1)
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- Bruce Ackerman (1)
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Articles 1 - 30 of 40
Full-Text Articles in Law
Constitutional Referendum In The United States Of America, William B. Fisch
Constitutional Referendum In The United States Of America, William B. Fisch
Faculty Publications
The United States of America, as a federation of now 50 states each with its own constitution and legal system still enjoying a large degree of governmental autonomy within the national legal framework, presents a strikingly mixed picture regarding the use of direct democracy--the submission of proposed governmental action to a popular vote--in law- and constitution-making processes. At the national level, direct democracy has never been used for either type of enactment. At the state and local level, however, its use dates back to colonial times and has been increasing gradually (though still not universal) ever since. Since the mid-19th …
The Voting Rights Act Of 1965: A Selected Annotated Bibliography, Terrye Conroy
The Voting Rights Act Of 1965: A Selected Annotated Bibliography, Terrye Conroy
Faculty Publications
Several remedial or "special" provisions of the Voting Rights Act of 1965, which were enacted as temporary measures and were set to expire in August 2007 if not reauthorized by Congress, were recently extended for another twenty-five years. Ms. Conroy offers a selected bibliography of resources to introduce researchers to the issues involved in the debate over the Act's reauthorization and its future implementation.
The New Line Item Veto Proposal: This Time It’S Constitutional (Mostly), Aaron-Andrew P. Bruhl
The New Line Item Veto Proposal: This Time It’S Constitutional (Mostly), Aaron-Andrew P. Bruhl
Faculty Publications
No abstract provided.
Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer
Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer
Faculty Publications
The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three "guideposts" set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant's conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any "civil or criminal penalties that could be imposed for comparable misconduct." Following up on this pronouncement …
Tom Delay: Popular Constitutionalist?, Neal Devins
Tom Delay: Popular Constitutionalist?, Neal Devins
Faculty Publications
No abstract provided.
Resisting Deep Capture: The Commercial Speech Doctrine And Junk-Food Advertising To Children, David Yosifon
Resisting Deep Capture: The Commercial Speech Doctrine And Junk-Food Advertising To Children, David Yosifon
Faculty Publications
The present Article is more precisely dedicated to analyzing, from a critical realist perspective, the wisdom and constitutional viability of one possible policy response to the obesity crisis: a ban on junk-food advertising to children.
This Article seeks not only to show that an effective junk-food advertising ban could pass constitutional scrutiny, but also to demonstrate, through the rigor of a constitutional analysis, the wisdom of such an approach to this substantial social problem. Simultaneously, my purpose is to show, in the context of a difficult First Amendment question, that the critical realist approach to legal theory is capable of …
Property, Place, And Public Discourse, Timothy Zick
Property, Place, And Public Discourse, Timothy Zick
Faculty Publications
No abstract provided.
Taxation, Compensation, And Judicial Independence, Jonathan L. Entin, Erik M. Jensen
Taxation, Compensation, And Judicial Independence, Jonathan L. Entin, Erik M. Jensen
Faculty Publications
Article III of the Constitution seeks to protect judicial independence, partly through a guarantee of life tenure and partly through a clause that prohibits the diminution of judges' "compensation". The Compensation Clause does not address the subject of taxation, but it has always been understood to affect the federal government's taxing power. This article examines the framing of the Compensation Clause, some nineteenth-century detours that are inconsistent with the original understanding of the Clause, and the Supreme Court's jurisprudence on taxation of judges under the Clause. The article critically analyzes the Court's most recent case on the subject, United States …
Taxation, Compensation, And Judicial Independence: Hatter V. United States, Jonathan L. Entin, Erik M. Jensen
Taxation, Compensation, And Judicial Independence: Hatter V. United States, Jonathan L. Entin, Erik M. Jensen
Faculty Publications
Article III of the Constitution seeks to protect judicial independence, partly through a guarantee of life tenure and partly through a clause that prohibits the diminution of judges' "compensation". The Compensation Clause does not address the subject of taxation, but it has always been understood to affect the federal government's taxing power. This article examines the framing of the Compensation Clause, some nineteenth-century detours that are inconsistent with the original understanding of the Clause, and the Supreme Court's jurisprudence on taxation of judges under the Clause. The article critically analyzes the Court's most recent case on the subject, United States …
United States V. Hatter And The Taxation Of Federal Judges, Jonathan L. Entin, Erik M. Jensen
United States V. Hatter And The Taxation Of Federal Judges, Jonathan L. Entin, Erik M. Jensen
Faculty Publications
Does the constitutional requirement that the "compensation" of federal judges "not be diminished during their Continuance in office" preclude Congress from subjecting sitting judges to the social security taxes from which they had previously been exempt? In Hatter v. United States, the Federal Circuit ruled for judges claiming such an exemption, and, after the Supreme Court granted cert, the authors wrote the first of these two articles, arguing why, for a multitude of reasons, the Supreme Court should reverse and make it clear that judges may constitutionally be subject to a tax of general application. After the Supreme Court held …
The Green Costs Of Kelo: Economic Development Takings And Environmental Protection, Jonathan H. Adler
The Green Costs Of Kelo: Economic Development Takings And Environmental Protection, Jonathan H. Adler
Faculty Publications
This Article is the first academic paper to systematically consider the environmental impact of the Supreme Court's decision in Kelo v. City of New London and of economic development condemnations more generally. Kelo upheld economic development takings - condemnations that transfer property from one private owner to another solely on the ground that doing so might improve the local economy or increase tax revenue. The decision stands in sharp contrast to the Michigan Supreme Court's ruling in County of Wayne v. Hathcock, which forbade the use of eminent domain for economic development.
Part I briefly explains the rationales of the …
The Constitutional Right To Make Medical Treatment Decisions: A Tale Of Two Doctrines, B. Jessie Hill
The Constitutional Right To Make Medical Treatment Decisions: A Tale Of Two Doctrines, B. Jessie Hill
Faculty Publications
The Supreme Court has taken very different approaches to the question whether individuals have a right to make autonomous medical treatment choices, depending on the context. For example, in cases concerning the right to choose ¿partial-birth¿ abortion and the right to use medical marijuana, the Supreme Court reached radically different results, based on radically different reasoning.
More recent developments, including last Term's decision in Gonzales v. Carhart, have only highlighted the doctrinal confusion and the need for a resolution. In light of this pressing need, the goal of this Article is to view all of the constitutional cases touching on …
Understanding Waiver, Jessica Wilen Berg
Understanding Waiver, Jessica Wilen Berg
Faculty Publications
Waiver plays a role in numerous areas of law, yet no one has attempted to provide a unifying theory of waiver, explaining why some rights cannot be waived and why courts and legislatures have set different standards for the validity of waivers in different circumstances. This article proposes that maximization of autonomy functions as an underlying goal of our legal system generally, and thus the concept of autonomy provides a basis for understanding waivers. It analyzes autonomy in some detail and offers an evaluative framework that functions both descriptively and normatively across different legal areas. There are two senses of …
Interpreting The Sixteenth Amendment (By Way Of The Direct-Tax Clauses), Erik M. Jensen
Interpreting The Sixteenth Amendment (By Way Of The Direct-Tax Clauses), Erik M. Jensen
Faculty Publications
The Sixteenth Amendment and the direct-tax clauses have become subjects of interest in the legal academy and, as proposals for new forms of national taxation emerge on a seemingly daily basis, they could become subjects of more general interest as well. Under the direct-tax clauses, a direct tax must be apportioned among the states on the basis of population, making such a tax difficult, although not impossible, to implement. Following the Supreme Court decisions in the 1895 Income Tax Cases, which held that an 1894 income tax was a direct tax that had not been properly apportioned, the Sixteenth Amendment, …
The Taxing Power, The Sixteenth Amendment, And The Meaning Of ‘Incomes,’, Erik M. Jensen
The Taxing Power, The Sixteenth Amendment, And The Meaning Of ‘Incomes,’, Erik M. Jensen
Faculty Publications
This article examines the debates leading to the enactment of the 1894 income tax, which the Supreme Court struck down in 1895, and the Sixteenth Amendment, ratified in 1913, and concludes that an income tax and a tax on consumption were understood to be fundamentally different types of taxes. The author argues that the term “taxes on incomes” in the Sixteenth Amendment should be interpreted with that distinction in mind. The Amendment was intended to make a “tax on incomes,” and only a tax on incomes, possible without the apportionment that would otherwise be required for a direct tax. For …
Unapportioned Direct-Consumption Taxes And The Sixteenth Amendment, Erik M. Jensen
Unapportioned Direct-Consumption Taxes And The Sixteenth Amendment, Erik M. Jensen
Faculty Publications
The point of this essay is simple: a direct-consumption tax like the Forbes-Armey-Hall-Rabushka flat tax or the Nunn-Domenici USA tax is not a "tax on incomes" within the meaning of the Sixteenth Amendment. As a result, such a tax would be constitutional only if it were apportioned among the states on the basis of population. And since these taxes would not be apportioned-how could they be and work as they are intended to work?-they would be unconstitutional.
Taxation And The Constitution: How To Read The Direct-Tax Clauses, Erik M. Jensen
Taxation And The Constitution: How To Read The Direct-Tax Clauses, Erik M. Jensen
Faculty Publications
This essay responds to Professor Bruce Ackerman, who had challenged the author's understanding of the Direct-Tax Clauses of the Constitution and the Sixteenth Amendment to that Constitution.
Critical Theory And The Loneliness Of The Tax Prof, Erik M. Jensen
Critical Theory And The Loneliness Of The Tax Prof, Erik M. Jensen
Faculty Publications
This essay, prepared for a symposium on critical theory and tax law, has two goals: to suggest why feminist theory and critical race theory are spreading in taxation and to discuss some dangers of that criticism. The author evaluates three examples of the new criticism: an article on critical race theory by Professors Moran and Whitford; an article on feminist statutory interpretation by Professor Handelman; and a book, Taxing Women, by Professor McCaffery.
The Apportionment Of ‘Direct Taxes’: Are Consumption Taxes Constitutional?, Erik M. Jensen
The Apportionment Of ‘Direct Taxes’: Are Consumption Taxes Constitutional?, Erik M. Jensen
Faculty Publications
In debates about reorienting the American revenue system, nearly everyone assumes the Constitution is irrelevant. With few exceptions, the tax provisions in the original Constitution - particularly the direct-tax apportionment rule and the uniformity rule - have been interpreted to be paper tigers. And in only one major case has the Sixteenth Amendment, which excepts "taxes on incomes" from apportionment, been held to limit congressional power.
S Rejecting conventional wisdom, this Article argues that some consumption taxes would violate constitutional norms. The Article focuses on the requirement that “direct taxes” be apportioned among the states on the basis of population. …
The Imaginary Connection Between The Great Law Of Peace And The United States Constitution: A Reply To Professor Schaaf, Erik M. Jensen
The Imaginary Connection Between The Great Law Of Peace And The United States Constitution: A Reply To Professor Schaaf, Erik M. Jensen
Faculty Publications
This article challenges the politically correct theory advanced in a 1989 article by Gregory Schaaf, “From the Great Law of Peace to the Constitution of the United States: A Revision of America’s Democratic Roots.” Professor Schaaf argued that large parts of the U.S. Constitution were based on the Great Law of Peace, the founding document of the Iroquois Confederacy. This article points to the lack of primary authority supporting such a counterintuitive proposition and questions the likelihood that Iroquois principles could have silently influenced American founders. Finally, the article questions whether it is desirable to try to further the status …
Commentary: The Extraordinary Revival Of Dred Scott, Erik M. Jensen
Commentary: The Extraordinary Revival Of Dred Scott, Erik M. Jensen
Faculty Publications
In a widely reprinted 1987 speech, Justice Thurgood Marshall characterized the Supreme Court's decision in Dred Scott v. Sandford as accurately reflecting the Founders' views on many subjects, including race. The author argues that Dred Scott was dead wrong on almost all counts-as many contemporaneous commentators, including Abraham Lincoln, understood. It was not helpful to our understanding of history and constitutional law for Justice Marshall to have resuscitated this horribly misguided decision.
The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski
The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski
Faculty Publications
This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8.
The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and …
Bartnicki As Lochner: Some Thoughts On First Amendment Lochnerism, Howard M. Wasserman
Bartnicki As Lochner: Some Thoughts On First Amendment Lochnerism, Howard M. Wasserman
Faculty Publications
No abstract provided.
Limited Powers In The Looking-Glass: Otiose Textualism, And An Empirical Analysis Of Other Approaches, When Activitists In Private Shopping Centers Claim State Constitutional Liberties, Richard J. Peltz-Steele
Limited Powers In The Looking-Glass: Otiose Textualism, And An Empirical Analysis Of Other Approaches, When Activitists In Private Shopping Centers Claim State Constitutional Liberties, Richard J. Peltz-Steele
Faculty Publications
This article examines closely a narrow range of highly factually analogous cases, in which state constitutional rights are asserted despite a clear lack of entitlement to assert any federal constitutional claim. Specifically, the cases selected are those in which private persons assert a right to conduct expressive activity, including electoral activity, in private shopping centers during hours when the properties are held open to the general public. These cases may be referred to colloquially as “the mall cases.” Selected here are only those which were decided after the federal question became clear. The Article first inquires into the role of …
Science, Politics, And Reproductive Rights Introduction, Health Matrix: Journal Of Law-Medicine - Introduction, B. Jessie Hill
Science, Politics, And Reproductive Rights Introduction, Health Matrix: Journal Of Law-Medicine - Introduction, B. Jessie Hill
Faculty Publications
Introduction to the Symposium: Science, Politics, and Reproductive Rights, Cleveland, Ohio.
The Evolving Domestic And International Law Against Foreign Corruption: Some New And Old Ethical Dilemmas Facing The International Lawyer, Juscelino F. Colares
The Evolving Domestic And International Law Against Foreign Corruption: Some New And Old Ethical Dilemmas Facing The International Lawyer, Juscelino F. Colares
Faculty Publications
This article examines the origins and meaning of the Export Clause in Article I, section 9 of the United States Constitution, which provides that "[n]o Tax or duty shall be laid on Articles exported from any State."
Part I of the article considers the original understanding of the Export Clause, concluding that, without the Clause, the Constitution would not have been adopted. In light of the Export Clause's significance in the constitutional structure, Part II examines the Supreme Court's decisions in United States v. International Business Machines Corp., 517 U.S. 843 (1996) (IBM), and United States v. United States Shoe …
The Constitution And Congressional Committees, 1971-2000, Keith E. Whittington, Neal Devins, Hutch Hicken
The Constitution And Congressional Committees, 1971-2000, Keith E. Whittington, Neal Devins, Hutch Hicken
Faculty Publications
No abstract provided.
A Right To No Meaningful Review Under The Due Process Clause: The Aftermath Of Judicial Deference To The Federal Administrative Agencies, Ruqaiijah Yearby
A Right To No Meaningful Review Under The Due Process Clause: The Aftermath Of Judicial Deference To The Federal Administrative Agencies, Ruqaiijah Yearby
Faculty Publications
The Due Process Clause of the Fifth Amendment has been perverted in the federal administrative system. For example, federal agencies, such as the U.S. Department of Health and Human Services (HHS), regularly deprive individuals of liberty and property with little to no review. In its regulation of the health care industry through the Medicare program, HHS often turns a blind eye to procedural Due Process protections, such as providing individuals an opportunity to challenge the deprivation of property at a hearing, even though the Constitution, the Administrative Procedure Act, and the Medicare Act grant these protections. The Medicare compliance hearing …
Constitutionalizing Patents: From Venice To Philadelphia, Craig Allen Nard, Andrew P. Morriss
Constitutionalizing Patents: From Venice To Philadelphia, Craig Allen Nard, Andrew P. Morriss
Faculty Publications
Patent law today is a complex institution in most developed economies and the appropriate structure for patent law is hotly debated around the world. Despite their differences, one crucial feature is shared by the diverse patent systems of the industrialized world even before the recent trend toward harmonization: modern patent regimes include self-imposed restrictions of executive and legislative discretion, which we refer to as "constitutionalized" systems. Given the lucrative nature of patent monopolies, the long history of granting patents as a form of patronage, and the aggressive pursuit of patronage in most societies, the choice to confine patents within a …
User Choices And Regret: Understanding Users' Decision Process About Consensually Acquired Spyware, Nathaniel Good, Jens Grossklags, David Thaw, Aaron K. Perzanowski, Deirdre K. Mulligan, Joseph Konstan
User Choices And Regret: Understanding Users' Decision Process About Consensually Acquired Spyware, Nathaniel Good, Jens Grossklags, David Thaw, Aaron K. Perzanowski, Deirdre K. Mulligan, Joseph Konstan
Faculty Publications
Spyware is software which monitors user actions, gathers personal data, and/or displays advertisements to users. While some spyware is installed surreptitiously, a surprising amount is installed on users’ computers with their active participation. In some cases, users agree to accept spyware as part of a software bundle as a cost associated with gaining functionality they desire. In many other cases, however, users are unaware that they installed spyware, or of the consequences of that installation. This lack of awareness occurs even when the functioning of the spyware is explicitly declared in the end user license agreement (EULA). We argue and …