Law Commons^™

I Am Textualism , Stephen Durden

Cleveland State Law Review

Until every person seeking to interpret the Constitution recognizes that constitutional interpretation is a quintessentially human endeavor, based on human assumptions and human reasoning, I will remain to protect those who seek to hide their predilections, their personal choices. I will continue to change as time passes. My form will continue to change to meet the needs of those who seek my cloak of objectivity and seek to redefine and improve me. I am a human invention created to pretend that constitutional interpretation is not a human endeavor. I am what each disciple wants. I am what each disciple needs. …

Should We Have A Liberal Constitution?, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In this brief essay, I attempt to accomplish two things. In Part I, I defend my proposed constitution against its putative liberal critics. In Part II, I argue that given contingent but highly plausible empirical assumptions, the differences between my constitution and a liberal constitution are less dramatic than one might suppose. There are often sound, nonliberal grounds for supporting institutional arrangements that appear liberal. It turns out, then, that liberalism is both less attractive (Part I) and less necessary (Part II) than its defenders suppose.

An Article I Theory Of The Inherent Powers Of The Federal Courts, Benjamin H. Barton

Catholic University Law Review

No abstract provided.

Acta’S Constitutional Problem: The Treaty Is Not A Treaty, Sean Flynn

Joint PIJIP/TLS Research Paper Series

The planned entry of the U.S. into the Anti-Counterfeiting Trade Agreement (ACTA) poses a unique Constitutional problem. The problem is that the President lacks constitutional authority to bind the U.S. to the agreement without congressional consent; but that lack of authority may not prevent the U.S. from being bound to the agreement under international law. If the administration succeeds in its plan, ACTA may be a binding international treaty (under international law) that is not a treaty (under U.S. Constitutional law).

Boumediene, Munaf, And The Supreme Court's Misreading Of The Insular Cases , Andrew Kent

Faculty Scholarship

In 2008, the Supreme Court embraced both global constitutionalism - the view that the Constitution provides judicially enforceable rights to non-citizens outside the sovereign territory of the United States - and what I call human-rights universalism - the view that the Constitution protects military enemies during armed conflict. Boumediene v. Bush found a constitutional right to habeas corpus for non-citizens detained as enemy combatants at the Guantanamo Bay naval base in Cuba, while Munaf v. Geren - decided the same day as Boumediene and involving U.S. citizens detained in Iraq during the war there - hinted that the Due Process …

State Constitutional Design And Education Reform: Process Specification In Louisiana, Scott R. Bauries

Law Faculty Scholarly Articles

As to education, the Louisiana Constitution contains the familiar general mandate for the establishment of a public school system, now ubiquitous among state constitutions. But unlike the founding documents of any of the other states, Louisiana's constitution also provides for a very specific process-based allocation of the responsibilities for determining appropriations levels in education from year to year.

It is well-known that state constitutions often treat numerous—sometimes trivial—subjects, or contain provisions that seem hyper-specific and statutory, rather than foundational and constitutional, and state constitutions have been roundly criticized (and sometimes defended) for these features. In this Article, I argue that …

State Constitutions And Individual Rights: Conceptual Convergence In School Finance Litigation, Scott R. Bauries

Law Faculty Scholarly Articles

This Article begins by reviewing Wesley Newcomb Hohfeld's “fundamental conceptions” and expanding his theory to the arena of state constitutional rights, building on recent work by other scholars. From this foundation, it moves to a discussion of the sources of rights to education. The Article then examines the text of relevant state constitutional provisions, as well as the ever-changing landscape of school finance litigation, the principal vehicle through which litigants assert constitutional claims based on ostensible education rights. Next, it systematically analyzes the population of reported cases from the highest state courts to identify Hohfeldian conceptions of education rights held …

The Supreme Court And Judicial Review: Two Views, Thomas A. Schweitzer

Scholarly Works

No abstract provided.

The Constitution As An Exploding Cigar And Other “Historian’S Heresies” About A Constitutional Orthodoxy, R.B. Bernstein

NYLS Law Review

No abstract provided.

Gallenthin V. Kaur: A Comparative Analysis Of How The New Jersey And New York Courts Approach Judicial Review Of The Exercise Of Eminent Domain For Redevelopment, Ronald K. Chen

Fordham Urban Law Journal

This Article explores two explanations for why New Jersey and New York take different approaches to judicial review of exercises of eminent domain. Part I examines the approach of both states and their differing procedures for review of administrative agency determinations. Part II discusses how each states' courts and legislatures define "blight." Part III examines how New York's approach leaves municipal officials and redevelopers free to use the more flexible concept of "underutilization" as a proxy for "blight."

The Regrettable Clause: United States V. Comstock And The Powers Of Congress, H. Jefferson Powell

Faculty Scholarship

In this Article, Powell argues that in Comstock, the Court encountered one of the oldest and most basic constitutional issues about the scope of congressional power-whether there are justiciable limits to the range of legitimate ends Congress may pursue. The Justices, without fully recognizing the fact, were taking sides in an ancient debate, and in doing so, they inadvertently reopened an issue that ought to be deemed long settled. Part II of the Article first addresses the question before the Court in Comstock, which was limited to a pure question of Article I law: is a specific provision of a …

Limited War And The Constitution: Iraq And The Crisis Of Presidential Legality, Bruce Ackerman, Oona Hathaway

Michigan Law Review

We live in an age of limited war. Yet the legal structure for authorizing and overseeing war has failed to address this modern reality. Nowhere is this failure more clear than in the recent U.S. conflict in Iraq. Congress self-consciously restricted the war's aims to narrow purposes-expressly authorizing a limited war. But the Bush Administration evaded these constitutional limits and transformed a well-defined and limited war into an open-ended conflict operating beyond constitutional boundaries. President Obama has thus far failed to repudiate these acts of presidential unilateralism. If he continues on this course, he will consolidate the precedents set by …

Should Pennsylvania Amend Its Constitution? The Pennsylvania Bar Association Considers Calls For Reform, John Gedid

John L. Gedid

No abstract provided.