Law Commons^™

The Scope Of Precedent, Randy J. Kozel

Randy J Kozel

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …

Democracy's Handmaid, Robert Tsai

Robert L. Tsai

Democratic theory presupposes open channels of dialogue, but focuses almost exclusively on matters of institutional design writ large. The philosophy of language explicates linguistic infrastructure, but often avoids exploring the political significance of its findings. In this Article, Tsai draws from the two disciplines to reach new insights about the democracy enhancing qualities of popular constitutional language. Employing examples from the founding era, the struggle for black civil rights, the religious awakening of the last two decades, and the search for gay equality, he presents a model of constitutional dialogue that emphasizes common modalities and mobilized vernacular. According to this …

Constitutional Borrowing, Robert Tsai

Robert L. Tsai

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter. It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. The authors' examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law …

John Brown's Constitution, Robert Tsai

Robert L. Tsai

It will surprise many Americans to learn that before John Brown and his men briefly captured Harper’s Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These acts of writing, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but nevertheless remained …

Constitutional Issues Surrounding Student Possession And Use Of Cell Phones In Schools, Ralph Mawdsley, Charles Russo

Charles J. Russo

Constitutional challenges to limits on the possession and/ or use of cell phones in schools present potential claims involving the Fourth Amendment rights of students to privacy and to be free from unreasonable searchesalong with parental Fourteenth Amendment Liberty Clauserights to direct the education and upbringing of their children. However, as reflected in this article, as long as educational officials enact policies in line with state laws that are explicitly designed to enhance school safety, challenges filed by students and their parents are probably destined to fail because constitutional claims are likely to be outweighed by concerns for the greater …

Democracy Means That The People Make The Law, Gerald Torres

Gerald Torres

Gerald Torres delivered the Robert C. Wood lecture at the McCormack Graduate School of Policy Studies at University of Massachusetts Boston in 2006. This is his talk.

The Treaty Of Waitangi In New Zealand's Law And Constitution In 2015, Matthew S. R. Palmer Qc

The Hon Justice Matthew Palmer

This lecture addresses issues concerning the place of the Treaty of Waitangi, including: implications of the Waitangi Tribunal's conclusions on sovereignty; the rationale behind historical Treaty settlements; and the future role of the Waitangi Tribunal.

The Doctrine Of True Threats: Protecting Our Ever-Shrinking First Amendment Rights In The New Era Of Communication, Mary M. Roark

Mary M Roark

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Such protection has withstood the test of time and is heralded as one of our most precious rights as Americans. “The hallmark of the protection of free speech is to allow ‘free trade in ideas’—even ideas that the overwhelming majority of people might find distasteful or discomforting." However, “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem." One such proscribable form of speech is the “true …

Bad Math: How Non-Union Employees Are Unconstitutionally Compelled To Subsidize Political Speech, Shirley V. Svorny, Melanie S. Williams

Melanie S. Williams

Employees’ right to organize and be represented by unions is in tension with the right of other employees not to join organizations as a condition of employment. Current law permits unions to assess agency fees from represented non-members, reflecting the cost of representational activities (for example, contract negotiation). Unions may not, however, assess non-members for the cost of political activities, since this would infringe on the constitutional rights of such employees by requiring them to subsidize political speech. The method of calculating agency fees, however, has been almost uniformly mishandled, resulting in overcharging non-union members. In this paper, we examine …

Death Penalty Jurisprudence By Tallying State Legislative Enactments: Harmonizing The Eighth And Tenth Amendments, Akram Faizer, Charles E. Maclean

Akram Faizer

An Outline For The Study Of Ethiopian Constitutional Law, Tsegaye Beru

Tsegaye Beru

This outline is based on the 1995 Ethiopian Constitution. However, it is important to acknowledge that the 1995 Constitution cannot be studied in isolation. Like its forerunners, the Constitution is not distinctively Ethiopia, save the customary and religious laws that have been recognized by it. Past and present constitutions were derived from various sources, mostly Western. The immediate source of the 1995 Constitution is the Charter of the Transitional Government that took power from the military government. However, the 1995 Constitution was built upon the constitutions and laws that preceded it and the customary and religious laws that predated it. …

Is The Filibuster Constitutional?, Josh Chafetz, Michael J. Gerhardt

Josh Chafetz

With the help of the President, Democrats in Congress were able to pass historic healthcare-reform legislation in spite of - and thanks to - the significant structural obstacles presented by the Senate’s arcane parliamentary rules. After the passage of the bill, the current political climate appears to require sixty votes for the passage of any major legislation, a practice which many argue is unsustainable. In this Debate, Professors Josh Chafetz and Michael Gerhardt debate the constitutionality of the Senate’s cloture rules by looking to the history of those rules in the United States and elsewhere. Professor Chafetz argues that the …

The Unconstitutionality Of The Filibuster, Josh Chafetz

Josh Chafetz

This Article, written for the Connecticut Law Review's 2010 "Is Our Constitutional Order Broken?" symposium, argues that the filibuster, as currently practiced, is unconstitutional.

After a brief introduction in Part I, Part II describes the current operation of the filibuster. Although the filibuster is often discussed in terms of "unlimited debate," this Part argues that its current operation is best understood in terms of a sixty-vote requirement to pass most bills and other measures through the Senate.

Part III presents a structural argument that this supermajority requirement for most Senate business is unconstitutional. This Part argues that the words "passed" …

Impeachment And Assassination, Josh Chafetz

Josh Chafetz

In 1998, the conservative provocateur Ann Coulter made waves when she wrote that President Clinton should be either impeached or assassinated. Coulter was roundly - and rightly - condemned for suggesting that the murder of the President might be justified, but her conceptual linking of presidential impeachment and assassination was not entirely unfounded. Indeed, Benjamin Franklin had made the same linkage over two hundred years earlier, when he noted at the Constitutional Convention that, historically, the removal of “obnoxious” chief executives had been accomplished by assassination. Franklin suggested that a proceduralized mechanism for removal - impeachment - would be preferable. …

Executive Branch Contempt Of Congress, Josh Chafetz

Josh Chafetz

After former White House Counsel Harriet Miers and White House Chief of Staff Joshua Bolten refused to comply with subpoenas issued by a congressional committee investigating the firing of a number of United States Attorneys, the House of Representatives voted in 2008 to hold them in contempt. The House then chose a curious method of enforcing its contempt citation: it filed a federal lawsuit seeking a declaratory judgment that Miers and Bolten were in contempt of Congress and an injunction ordering them to comply with the subpoenas. The district court ruled for the House, although that ruling was subsequently stayed …

The Illusory Eighth Amendment, John F. Stinneford

John F. Stinneford

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect. This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a …

Punishment Without Culpability, John F. Stinneford

John F. Stinneford

For more than half a century, academic commentators have criticized the Supreme Court for failing to articulate a substantive constitutional conception of criminal law. Although the Court enforces various procedural protections that the Constitution provides for criminal defendants, it has left the question of what a crime is purely to the discretion of the legislature. This failure has permitted legislatures to evade the Constitution’s procedural protections by reclassifying crimes as civil causes of action, eliminating key elements (such as mens rea) or reclassifying them as defenses or sentencing factors, and authorizing severe punishments for crimes traditionally considered relatively minor. The …

The Constitution According To Justices Scalia And Thomas: Alive And Kickin', Eric J. Segall

Eric J. Segall

No abstract provided.

Politics And Public Sector Employees: What's Gone Wrong With The Relationship Between Ministers And Public Servants - Why It Matters, And What Needs To Be Done To Fix It, Matthew S. R. Palmer Qc

The Hon Justice Matthew Palmer

Who Speaks For The ‘People’ On Policy?, Alan E. Garfield

Alan E Garfield

No abstract provided.

Are ‘We The People’ Meeting Our Responsibilities?, Alan E. Garfield

Alan E Garfield

No abstract provided.

Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark Graber

Mark Graber

This paper sharpens debates over whether the Constitution of the United States and the American constitutional order are presently dysfunctional, the nature of any dysfunctions, and how underlying regime flaws are likely to be corrected. Rather than focusing primarily on constitutional text, this Article explores the dynamic ways in which constitutional processes have influenced and been influenced by the structure of constitutional politics. Constitutional dysfunction is best conceptualized as the failure of a constitutional order rather than as a consequence of a flawed constitutional text, and dysfunction typically occurs when a regime is unable to transition from a dysfunctional constitutional …

Section 1983 Civil Rights Litigation In The October 2005 Term, Martin Schwartz

Martin A. Schwartz

No abstract provided.

Table Annexed To Article: Hamilton And Madison Deploy ‘System’ In Works Dated To 1787/88, 1790/91, 1793 And Post-Retirement Works, Peter J. Aschenbrenner

Peter J. Aschenbrenner

The deployment of the word ‘system’ is surveyed, beginning with The Federalist essays, the focus being on the works of Alexander Hamilton and James Madison. In the second tranche of works, their efforts – now as opponents – in the bank bill debate are examined along with the appearance of ‘system’ in the Neutrality Proclamation debates; in the third tranche, Hamilton’s public letters (from his retirement as Secretary of the Treasury to his death in 1804) are surveyed; the fourth consists of Madison’s works included in Farrand’s volume 3 of his Records of the Federal Convention.

Nonprofits, Speech, And Unconstitutional Conditions, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

This Article proposes a new constitutional framework for approaching the issue of speech-related conditions on government funding accepted by nonprofits and demonstrates its application by reviewing the Court’s landmark decisions in this area. It argues that speech rights are generally inalienable as against the government under the First Amendment, and therefore any abridgement of such rights by the government—whether direct or indirect—is subject to strict scrutiny. As a result, the government is not permitted to buy an organization’s speech absent a compelling governmental interest in doing so and then only if the purchase is done in a manner that is …

Supreme Court Alchemy: Turning Law And Politics Into Mayonnaise, Stephen Feldman

Stephen M. Feldman

How do law and politics intertwine in Supreme Court adjudication? Traditionally, in law schools and political science departments, scholars refused to mix law and politics. Law professors insisted that legal texts and doctrines controlled Supreme Court decision making, while political scientists maintained that political ideologies dictated the justices' votes. In the late twentieth century, some scholars in both disciplines sought to combine law and politics but still conceived of the two as distinct. They attempted to stir law and politics together, but ended with an oil-and-water type of mix; law and politics settled apart. The best approach, as presented in …

Whose Metadata Is It Anyways? Why Riley V. California Illustrates That The National Security Administration's Bulk Data Collection Is A Fourth Amendment Problem, Jesse S. Weinstein

Jesse S Weinstein

No abstract provided.

Las Normas Preconstituyentes Como Medio De “Idealidad: Los Casos Paradigmáticos De Los Procesos Constituyentes Peruanos De 1979 Y De 1993, Javier André Murillo Chávez

Javier André Murillo Chávez

No abstract provided.

Constitutional Islamization And Human Rights: The Surprising Origin And Spread Of Islamic Supremacy In Constitutions, Tom Ginsburg

Tom Ginsburg

No abstract provided.

The Interpretation Of Constitutional History, Or Charles Beard Becomes A Fortuneteller (With An Emphasis On Free Expression), Stephen M. Feldman

Stephen M. Feldman

In "An Economic Interpretation of the Constitution of the United States", Charles A. Beard argued that the framers advocated for and defended the Constitution because of their personal economic interest, that the pursuit of common good was not so much a motive as a veneer. The current historical consensus is that Beard's thrust is incorrect. In this essay, I largely agree with this assessment, but his economic approach can add an important element to the discussion of constitutional history. And though his economic depiction does not closely fit the framing of the Constitution, it uncannily fits the Roberts Court's current …