Law Commons^™

Constitutional Change And International Government, Chantal Thomas

Cornell Law Faculty Publications

No abstract provided.

The Heterogeneity Of Rights, Michael C. Dorf

Cornell Law Faculty Publications

What is the implication for the validity of governmental rules of the conclusion that the rule interferes with a constitutional right? This question has implications for two important doctrinal puzzles. The first is the question when, if ever, a litigant has a constitutional right to an exemption from a generally valid rule of law. Many constitutional rights are rule-dependent in the sense that they protect actors against certain kinds of governmental rules rather than shielding acts against governmental interference. This Article denies the claim by scholars and judges that this rule-dependence reflects a deep truth about the nature of constitutional …

Rules And Judicial Review, Emily Sherwin

Cornell Law Faculty Publications

Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes “as applied” rather than as written; they favor “severance” of valid applications of statutes from invalid or possibly invalid applications when possible; and they interpret statutes in ways that avoid constitutional difficulty. These overlapping practices presumably are intended to preserve legislation, and hence are associated with a modest conception of the role of courts in government. Yet they are not always modest …

Rights And Rules: An Overview, Matthew D. Adler, Michael C. Dorf

Cornell Law Faculty Publications

Prior to recent decades, the United States Supreme Court often invoked the political question doctrine to avoid deciding controversial questions of individual rights. By the 1970s and 1980s, standing limits traced to Article III’s case-or-controversy language had replaced the political question doctrine as the favored justiciability device. Although both political question and standing doctrines remain tools in the Court’s arsenal of threshold decision making,3 in the last decade the Court has turned with increasing frequency to the distinction between facial and as-applied challenges to perform the gatekeeping function. However, although there is a considerable body of scholarship concerning the conventional …

No Federalists Here: Anti-Federalism And Nationalism On The Rehnquist Court, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Keeping The Sex In Sex Education: The First Amendment's Religion Clauses And The Sex Education Debate, Gary J. Simson, Erika A. Sussman

Cornell Law Faculty Publications

No abstract provided.

When Should Rights "Trump"? An Examination Of Speech And Property, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Shared Constitutional Interpretation, Michael C. Dorf, Barry Friedman

Cornell Law Faculty Publications

In United States v. Dickerson the Supreme Court reaffirmed its decision in Miranda v. Arizona, stating that it was a 'constitutional decision' and, thus, not subject to congressional overruling. At the same time, the Dickerson Court reiterated Miranda's "invitation" to "Congress and the States to . . . search for . . . other procedures which are at least as effective" as the Court's prescribed warnings in protecting the suspect's rights.

This article uses Dickerson as a lens through which to examine the possibilities of shared constitutional interpretation. After all, the Court that decided Dickerson has, in recent years, been …

What Does The Second Amendment Mean Today?, Michael C. Dorf

Cornell Law Faculty Publications

A growing body of scholarship argues that the Second Amendment protects a right of individuals to possess firearms, regardless of whether those individuals are organized in state militias. Proponents of the individual right view do not merely disagree with those who champion the competing view that the Second Amendment poses few if any obstacles to most forms of gun control legislation by the state or federal governments. They appear to believe that the Second Amendment has been subject to uniquely shabby treatment by the courts and, until recently, academic commentators.

This Article argues that the Second Amendment has not been …

Vouchers And Beyond: The Individual As Causative Agent In Establishment Clause Jurisprudence, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.

Current Trends In Illegal Reentry Cases, Stephen W. Yale-Loehr, Rachel J. Valente

Cornell Law Faculty Publications

As the Immigration and Naturalization Service (INS) begins removing more and more aliens, a growing number are reentering illegally after their removal. Many of those reentering do not realize that by doing so they are committing a crime. The case law in this area is quite complex and fraught with constitutional considerations. This article provides an overview of the crime of illegal reentry under Immigration and Nationality Act (INA) § 276.