Law Commons^™

Fallibility + Unchecked Power = Trouble, C. Peter Erlinder

C. Peter Erlinder

No abstract provided.

“We The People” Through Young Eyes, Alan E. Garfield

Alan E Garfield

No abstract provided.

Does Due Process Have An Original Meaning? On Originalism, Due Process, Procedural Innovation . . . And Parking Tickets, Lawrence Rosenthal

Lawrence Rosenthal

Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered "due" at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures' that alter framing-era procedural rights, such as the novel systems …

Development And Problems Of Public Interest Litigation In Bangladesh: A Critical Analysis, Abu Noman Mohammad Atahar Ali, Zafrin Andaleeb

Abu Noman Mohammad Atahar Ali

No abstract provided.

Bridging The Divide Between Justice Kennedy’S Progressivism And Justice Scalia’S Textualism: Introducing The Concept Of Negative Originalism, Adam Lamparello

Adam Lamparello

This Article examines the United States's Supreme Court's reliance upon foreign sources of law when adjudicating "values based" cases. In particular, the Article analyzes the Court's decision in Lawrence v. Texas, with particular emphasis upon the interpretive approaches utilized by Justices Breyer ("progressivism") and Scalia ("originalism") in arriving at their respective decisions. Based upon such examination, including the efficacy of relying upon foreign sources of law to support domestic constitutional decisions, this Article proposes a new interpretive paradigm, entitled "negative originalism", which strives to ensure fidelity to the Constitution's original purposes and objectives, while allowing courts sufficient flexibility to fashion …

Sign Amortization Laws: Insight Into Precedent, Property, And Public Policy, Stephen Durden

Stephen Durden

This Article will (1) briefly overview Takings Clause jurisprudence; (2) state a paradigmatic fact pattern; (3) review how the Takings Clause has been applied to sign amortization codes by the United States Supreme Court; (4) review paradigmatic cases from Florida courts and federal courts with Florida jurisdiction; (5) discuss the precedential value of these cases; (6) discuss Lingle and whether it requires an overturning of this precedent; and (7) discuss whether failure to overturn these cases serves the purpose of precedential jurisprudence.

The Constitution Of Palestine: "The State In Development", Leonid G. Berlyavskiy

Leonid G. Berlyavskiy

Constitution of Palestine is an example of the constitutional act of the so-called "states in development" that is, being at the stage of development. The planned for the autumn of 2000 declaration of "the State the Palestine" has not taken place, however the constitution is considered working. According to the fundamental law Palestine is the parliamentary republic with rather extensive powers of the president, and is the unitary state.

Judicial Review Of Special Interest Spending: The General Welfare Clause And The Fiduciary Law Of The Founders, Robert G. Natelson

Robert G. Natelson

This article surveys the principles of 18th century fiduciary law that the Founders incorporated into the U.S. Constitution-- principles they referred to as rules of "public trust." The article also suggests standards the courts can use to determine if particular congressional appropriations are within the "general welfare" limitation of the Constitution's so-called Spending Clause

Tempering The Commerce Power, Robert G. Natelson

Robert G. Natelson

The Supreme Court's modern interpretation of the Necessary and Proper Clause in the realm of interstate commerce is textually problematic, unfaithful to the Constitution's original meaning, and contains positive incentives for Congress to over-regulate. The Necessary and Proper Clause was intended to embody the common law doctrine of principals and incidents, and the Court should employ that doctrine as its interpretive benchmark. The common law doctrine contains less, although some, bias toward over-regulation, and it is flexible enough to adapt to changing social conditions. Adherence to the common law doctrine would markedly improve Commerce Power jurisprudence and reduce incentives for …

The Future Of Religious Pluralism: Justice O'Connor And The Establishment Clause, Deborah J. Merritt, Daniel C. Merritt

Deborah J Merritt

Justice Sandra Day O’Connor offered a distinctive vision of the Establishment Clause. This article puts that vision in context by reviewing the history of religious pluralism, tolerance, and intolerance in the United States. The article also draws upon psychology research to illuminate the polarizing tendencies that continuously undermine religious tolerance. These sections of the article offer essential background that many observers overlook when analyzing the Establishment Clause. Finally, the article argues that Justice O’Connor’s Establishment Clause principles offer the best promise of promoting religious pluralism more fully in the United States.

Self-Defense In Asian Religions, David B. Kopel

David B Kopel

This Article investigates the attitudes of six Far Eastern religions - Confucianism, Taoism, Hinduism, Sikhism, Jainism, and Buddhism - towards the legitimacy of the use of force in individual and collective contexts. Self-defense is strongly legitimated in the theory and practice of the major Far Eastern religions. The finding is consistent with natural law theory that some aspects of the human personality, including the self-defense instinct, are inherent in human nature, rather than being entirely determined by culture.

The Path To (And From?) Judicial Independence (Reviewing Charles Gardner Geyh, When Courts And Congress Collide: The Struggle For Control Of America’S Judicial System (2006), Robert C. Power

Robert C Power

No abstract provided.

The Original Understanding Of The Indian Commerce Clause, Robert G. Natelson

Robert G. Natelson

The United States Congress claims plenary and exclusive power over federal affairs with the Indian tribes, based primarily on the Constitution’s Indian Commerce Clause. This article is the first comprehensive analysis of the original meaning of, and understanding behind, that constitutional provision. The author concludes that, as originally understood, congressional power over the tribes was to be neither plenary nor exclusive.

Congress Has The Power To Enforce The Bill Of Rights Against The Federal Government: Therefore Fisa Is Constitutional And The President's Terrorist Surveillance Program Is Illegal, Wilson R. Huhn

Wilson R. Huhn

The principal point of this Article is that Congress has plenary authority to enforce the Bill of Rights against the federal government. Although this precept is a fundamental one, neither the Supreme Court nor legal scholars have articulated this point in clear, simple, and direct terms. The Supreme Court does not have a monopoly on the Bill of Rights. Congress, too, has constitutional authority to interpret our rights and to enforce or enlarge them as against the actions of the federal government.

Congress exercised its power to protect the constitutional rights of American citizens when it enacted the Foreign Intelligence …

Against Orthodoxy: Miranda Is Not Prophylactic And The Constitution Is Not Perfect, Lawrence Rosenthal

Lawrence Rosenthal

In the four decades since the decision in Miranda v. Arizona, two point of consensus have emerged about that decision. The first area of agreement is that Miranda’s rationale for requiring its now-famous warnings is wrong, or at least dramatically overstated. In Michigan v. Tucker, the Court first labeled Miranda warnings as “prophylactic standards.” For their part, Miranda’s advocates do not spend much time defending its conception of unwarned custodial interrogation as inherently coercive. The second point of agreement is that Miranda has turned out to be a failure combating the coercive nature of custodial interrogation. Despite Miranda, coerced confessions …

Parliamentary Privileges As Façade: Political Reforms And Constitutional Adjudication, Shubhankar Dam

Shubhankar Dam

Does the Indian Parliament have the power to expel its members under the "powers, privileges and immunities" guaranteed by the Constitution? The Indian Supreme Court was confronted with the question in Raja Ram Pal v. Hon'ble Speaker, Lok Sabha and Others. Powers, privileges and immunities of the Indian Parliament are provided under Article 105. Supposedly based on an interpretation on Article 105(3), Sabharwal C.J., writing for the majority (Thakker J. concurring), concluded that Parliament did have the power to expel and that the same was subject to judicial review. Raveendran J. dissented. The particular privilege of the House of Commons, …

Situating The Core And Structure Of Experience In Constitutional Interpretation: Judicial Reasoning Under The Indian Constitution, Shubhankar Dam

Shubhankar Dam

This article is about texts: texts of legal provisions and texts of judgments. How much does the text of a legal provision tell us about its meaning? How much does a judgment tell us about the reasons for any given meaning of the text? Rather than in the abstract, the article unfolds both these questions in the context of the Indian Constitution. More specifically, it unfolds the questions in the context of an issue of great constitutional importance the Indian Supreme Court was confronted with in B. R. Kapur v. State of Tamil Nadu and Another. Can a person convicted …

El Bloque De Constitucionalidad Ecuatoriano, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

Las siguientes líneas glosan una importante Resolución de nuestro Tribunal Constitucional, que por primera vez esboza el difícil concepto de «bloque de constitucionalidad». Para hacerlo, el doctor Riofrío comienza narrando de forma sucinta los antecedentes del fallo, luego especifica cuáles fueron las principales consideraciones del Tribunal y finaliza ésta primera parte del artículo pergeñando, a la luz de la Resolución, la noción ecuatoriana de «bloque de constitucionalidad». Mas lo verdaderamente interesante de su trabajo viene a continuación, en el punto 4, donde señala algunas trascendentales implicaciones prácticas de la adopción de éste nuevo concepto. Por ejemplo: redimensiona la hermenéutica jurídica, …