Law Commons^™

The Death Penalty And The Fifth Amendment, Joseph Blocher

Northwestern University Law Review

Can the Supreme Court find unconstitutional something that the text of the Constitution “contemplates”? If the Bill of Rights mentions a punishment, does that make it a “permissible legislative choice” immune to independent constitutional challenges?

Recent developments have given new hope to those seeking constitutional abolition of the death penalty. But some supporters of the death penalty continue to argue, as they have since Furman v. Georgia, that the death penalty must be constitutional because the Fifth Amendment explicitly contemplates it. The appeal of this argument is obvious, but its strength is largely superficial, and is also mostly irrelevant to …

Rethinking Article 422: A Retrospective On Ecuador's 2008 Constitutional Isds Recalibration, Alexander B. Avtgis

Indiana Journal of Constitutional Design

Is Ecuador’s adoption of Article 422 in the 2008 Constitution properly viewed as a “re-statification”1 of Investor State Dispute Settlement (ISDS)? And, since its implementation, has the constitutional article been effective in institutionally insulating Ecuador from the jurisdictional reach of international ISDS? This paper answers both questions in the negative—but qualifies such an outlook by balancing the drawbacks of Article 422 against its successes. Article 422’s provisions, strident in its attempt to create an alternative development vision, did not achieve all that the Constitution’s drafters had hoped. Nevertheless, in its limited effect of detaching Ecuador from certain ISDS fora, it …

Ulysses: A Mighty Hero In The Fight For Freedom Of Expression, Marc J. Randazza

University of Massachusetts Law Review

James Joyce’s Ulysses was a revolutionary novel, and this much is common knowledge. What is not common knowledge is how useful Ulysses was in pushing the boundaries of freedom of expression. This masterpiece of literature opened the door for modern American free speech jurisprudence, but in recent years has become more of an object of judicial scorn. This Article seeks to educate legal scholars as to the importance of the novel, and attempts to reverse the anti-intellectual spirit that runs through modern American jurisprudence, where the novel is now more used as an object of mockery, or as a negative …

War By Legislation: The Constitutionality Of Congressional Regulation Of Detentions In Armed Conflicts, Christopher M. Ford

Northwestern University Law Review

In this essay, Ford considers provisions of the 2016 National Defense Authorization Act (NDAA) which place restrictions on the disposition of detainees held in Guantánamo Bay. These provisions raise substantial separation of powers issues regarding the ability of Congress to restrict detention operations of the Executive. These restrictions, and similar restrictions found in earlier NDAAs, specifically implicate the Executive's powers in foreign affairs and as Commander in Chief. Ford concludes that, with the exception of a similar provision found in the 2013 NDAA, the restrictions are constitutional.

The Voice Of The People: Public Participation In The African Continent, Rafael Macia

Indiana Journal of Constitutional Design

Public participation is becoming a more common characteristic of constitutional drafting processes around the world, and Africa has not been an exception in this regard. This paper seeks to survey several of the public participation processes undertaken in a number of African nations, in order to examine the methods followed and the effects produced by such processes. For that purpose, I have analyzed the constitutional drafting efforts in South Africa, Uganda, Eritrea, Zimbabwe, Rwanda, Kenya, and Egypt. These processes all show different circumstances and approaches, with variations in terms of their top-down or bottom-up nature, and, more importantly, in terms …

Pathways To Leadership: Four Women's Journeys To The Peace Negotiation Table In The Fight For Democracy In Burma, Brittany Shelmon

Indiana Journal of Constitutional Design

No abstract provided.

The Vox Populi Of Copyright: A Tribute To Lyman Ray Patterson, Kenneth D. Crews

Journal of Intellectual Property Law

No abstract provided.

The Constitutional Limits Of Client-Centered Decision Making, Todd A. Berger

University of Richmond Law Review

No abstract provided.

Truth Or Doubt? An Empirical Test Of Criminal Jury Instructions, Michael D. Cicchini, Lawrence T. White

University of Richmond Law Review

Part I of this article briefly discusses the concept of proof beyond a reasonable doubt, along with its importance to individuals and society generally. Part II surveys some of the truth-related language used in multiple state and federal jurisdictions. It also examines the constitutional problems created by this language and discusses courts' inadequate responses to these problems.

Part III explains our controlled experiment, including our hypotheses, study design, and empirical findings. Part IV discusses these findings and their significance and argues that courts should immediately terminate their use of truth-based jury instructions so that our constitutional guarantees are fulfilled. Finally, …

The Federalism Cases, Leon Friedman

Touro Law Review

No abstract provided.

The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi

Northwestern University Law Review

Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines—the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly …

Restoring Nobility To The Constitution: A Modern Approach To A Founding Principle, Marc A. Greendorfer

ConLawNOW

It is common lore in the United States that our federal government was structured with a number of checks and balances that ensure, at a minimum, the equal application of law among all citizens. While there are indeed such structural mechanisms embedded in the Constitution, they don’t always work as intended and, in fact, at times they fail utterly to prevent blatant abuses of the rule of law by the vast and growing political class in America. Our political office holders (and their favored constituents) can, and do, pick and choose which laws apply to them and, more importantly, which …

Taking Constitutional Identities Away From The Courts, Pietro Faraguna

Brooklyn Journal of International Law

In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …

Politics At Work After Citizens United, Ruben J. Garcia

Loyola of Los Angeles Law Review

There are seismic changes going on in the political system. The United States Supreme Court has constitutionalized the concentration of political power in the “one percent” in several recent decisions, including Citizens United v. FEC. At the same time, unions are representing a shrinking share of the workforce, and their political power is also being diminished. In order for unions to recalibrate the balance of political power at all, they must collaborate with grassroots community groups, as they have done in several recent campaigns. There are, however, various legal structures that make coordination between unions and nonunion groups difficult, …

Australians' "Right" To Be Bigoted: Protecting Minorities' Rights From The Tyranny Of The Majority, Jillian Rudge

Brooklyn Journal of International Law

Australia’s Racial Discrimination Act (RDA) is a federal statute prohibiting behavior that offends, insults, humiliates, or intimidates people based on their race, nationality, ethnicity, or immigration status. It appropriately limits the right to freedom of expression where the exercise of that right encroaches on other, equally fundamental rights to equality and freedom from discrimination. The RDA is one of Australia’s few human rights laws focused on fighting racism. It is especially important for protecting the rights of minorities since Australia lacks a constitutional or federal bill of rights. Unfortunately, in 2014 and 2015, conservative politicians called for a repulsion of …

Congress And The Reconstruction Of Foreign Affairs Federalism, Ryan Baasch, Saikrishna Bangalore Prakash

Michigan Law Review

Though the Constitution conspicuously bars some state involvement in foreign affairs, the states clearly retain some authority in foreign affairs. Correctly supposing that state participation may unnecessarily complicate or embarrass our nation’s foreign relations, the Supreme Court has embraced aggressive preemption doctrines that sporadically oust the states from discrete areas in foreign affairs. These doctrines are unprincipled, supply little guidance, and generate capricious results. Fortunately, there is a better way. While the Constitution permits the states a limited and continuing role, it never goes so far as guaranteeing them any foreign affairs authority. Furthermore, the Constitution authorizes Congress to enact …

The Death Knell For The Death Penalty: Judge Carney's Order To Kill Capital Punishment Rings Loud Enough To Reach The Supreme Court, Alyssa Hughes

Loyola of Los Angeles Law Review

No abstract provided.

November Madness: A Proposal For Representative Democracy Brackets To Eliminate The Undue Influence Of Money On Elections, Daniel P. Valentine

Texas A&M Law Review

This Comment proposes Representative Democracy Brackets, a multi-level manner of choosing candidates in which all voters have an equal voice, but which by its structure reduces the effect of mass marketing in favor of a focus on forming and evaluating interpersonal relationships. By implementing Representative Democracy Brackets, a state or the United States can achieve the twin benefits of decreasing the undue effects of political spending and increasing the quality of the resulting decisions. The proposed brackets winnow the pool of voters until it is small enough to make an informed decision.

This Comment defines the problem by reviewing the …

Scalia On Abortion: Originalism... But, Why?, Robert Cassidy

Touro Law Review

No abstract provided.

Applying The U.S. Constitution To Foreign Asylum Seekers: Exposing A Curious, Inconsistent Practice In The Federal Courts, Shalini Bhargava Ray

Marquette Law Review

Asylum law is based on an international treaty, but federal courts routinely invoke U.S. constitutional norms in adjudicating asylum claims. Specifically, they rely on constitutional norms when gauging whether an asylum applicant has suffered harm amounting to “persecution” and whether the harm was inflicted “on account of” a protected characteristic, such as political opinion or religion. In a close analysis of this unusual practice, this Article argues that federal courts have come to inconsistent, and often incompatible, conclusions regarding the use of constitutional norms in the analysis of asylum claims: principally, on whether constitutional norms establish sufficient, insufficient, necessary, or …

The Original Understanding Of "Property" In The Constitution, Paul J. Larkin Jr.

Marquette Law Review

Contemporary Supreme Court jurisprudence treats “property” as far less deserving of judicial protection than “life” or “liberty.” The Supreme Court, however, has misread American legal history. Anglo-American traditions, customs, and law held that property was an essential ingredient of the liberty that the Colonists had come to enjoy and must be protected against arbitrary governmental interference. The Framers’ generation believed that “property” and “liberty” were equally important institutions and that neither one could exist without the other. The Framers venerated property as a means of guaranteeing personal independence because (among other things) the concept of “property” embraced the legal rights …

When Scalia Wasn't Such An Originalist, Michael Lewyn

Touro Law Review

No abstract provided.

When The Police Get The Law Wrong: How Heien V. North Carolina Further Erodes The Fourth Amendment, Vivan M. Rivera

Loyola of Los Angeles Law Review

No abstract provided.

Why Enumeration Matters, Richard A. Primus

Michigan Law Review

The maxim that the federal government is a government of enumerated powers can be understood as a “continuity tender”: not a principle with practical consequences for governance, but a ritual statement with which practitioners identify themselves with a history from which they descend. This interpretation makes sense of the longstanding paradox whereby courts recite the enumeration principle but give it virtually no practical effect. On this understanding, the enumerated-powers maxim is analogous to the clause that Parliament still uses to open enacted statutes: “Be it enacted by the Queen’s most Excellent Majesty.” That text might imply that the Queen is …

The Founding Fathers Said I Am Not Subject To Term Limits, Elias Arroyo

Touro Law Review

No abstract provided.