Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Courts (4)
- Public Law and Legal Theory (4)
- Anti-evasion doctrines (3)
- Constitutional Doctrine (3)
- Constitutional Law (3)
-
- Supreme Court (3)
- The Supreme Court (3)
- Colorado (2)
- Constitutional Theory (2)
- Dormant Commerce Clause (2)
- Legalization (2)
- Marijuana (2)
- Pot tourism (2)
- Privileges and Immunities Clause (2)
- Alexander Bickel (1)
- Anti-anti-evasion (1)
- Article IV (1)
- Bakke (1)
- Charles Black (1)
- Commerce Clause (1)
- Decision rules (1)
- Doctrine (1)
- Federalism (1)
- Five Takes (1)
- James Bradley Thayer (1)
- John Marshall (1)
- John Roberts (1)
- Legitimization (1)
- Marbury (1)
- Obamacare (1)
- File Type
Articles 1 - 6 of 6
Full-Text Articles in Law
One Toke Over The (State) Line: Constitutional Limits On "Pot Tourism" Regulations, Brannon P. Denning
One Toke Over The (State) Line: Constitutional Limits On "Pot Tourism" Regulations, Brannon P. Denning
Brannon P. Denning
Among the myriad legal issues confronting states like Colorado that are experimenting with the legalization of marijuana is the need to regulate “pot tourism” by persons from other states where marijuana is not legal. In Colorado, the final recommendations from the Amendment 64 Implementation Task Force included a proposal “to limit purchases by state residents to an ounce at a time and to a quarter of an ounce for out-of-state visitors.” The lower restrictions for nonresidents are designed to deter pot tourists from “smurfing”—visiting a number of different dispensaries to accumulate larger amounts of marijuana with a view to illegally …
Anti-Anti-Evasion In Constitutional Law, Brannon P. Denning, Michael B. Kent Jr.
Anti-Anti-Evasion In Constitutional Law, Brannon P. Denning, Michael B. Kent Jr.
Brannon P. Denning
In a previous paper, we identified “anti-evasion doctrines” (AEDs) that the U.S. Supreme Court develops in various areas of constitutional law to prevent the circumvention of constitutional principles the Court has sought to enforce. Typically, the Court employs an AED – crafted as an ex post standard – to bolster or backstop a previously-designed decision rule – crafted as an ex ante rule – so as to prevent government officials from complying with the form of the prior rule while evading the constitutional substance the rule was designed to implement. Although AEDs present benefits and tradeoffs in constitutional doctrine, their …
Anti-Evasion Doctrines And The Second Amendment, Brannon P. Denning
Anti-Evasion Doctrines And The Second Amendment, Brannon P. Denning
Brannon P. Denning
This article, written for a symposium on the Second Amendment, examines recent lower court decisions for evidence that courts are -- or are not -- creating and applying "anti-evasion doctrines" (AEDs) in Second Amendment cases. Such doctrines prevent form-over-substance evasion of constitutional principles on the part of government actors. Early evidence suggests that courts are willing to employ AEDs to frustrate legislative efforts to nullify the core of the right to keep and bear arms for self-defense in the home recognized in Heller and McDonald.
One Toke Over The (State) Line: Constitutional Limits On "Pot Tourism" Restrictions, Brannon P. Denning
One Toke Over The (State) Line: Constitutional Limits On "Pot Tourism" Restrictions, Brannon P. Denning
Brannon P. Denning
Among the myriad legal issues confronting states like Colorado that are experimenting with the legalization of marijuana is the need to regulate “pot tourism” by persons from other states where marijuana is not legal. In Colorado, the final recommendations from the Amendment 64 Implementation Task Force included a proposal “to limit purchases by state residents to an ounce at a time and to a quarter of an ounce for out-of-state visitors.” The lower restrictions for nonresidents are designed to deter pot tourists from “smurfing”—visiting a number of different dispensaries to accumulate larger amounts of marijuana with a view to illegally …
National Federation Of Independent Business V. Sebelius, Brannon P. Denning, Glenn H. Reynolds
National Federation Of Independent Business V. Sebelius, Brannon P. Denning, Glenn H. Reynolds
Brannon P. Denning
Using our now-famous "Five Takes" format, Glenn Reynolds and I analyze NFIB v. Sebelius from five different perspectives: (1) Sebelius as Marbury; (2) Sebelius as Bakke; (3) Sebelius and the "legitimating" power of judicial review; (4) Sebelius as a Thayerian decision; and (5) Sebelius as part of some long game of Chief Justice Roberts'.
Anti-Evasion Doctrines In Constitutional Law, Brannon P. Denning, Michael B. Kent
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 …