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Constitutional Law

2019

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Full-Text Articles in Law

Dewan Perwakilan Rakyat Dan Majelis Permusyawaratan Rakyat Dalam Proses Impeachment Presiden Abdurrahman Wahid, Kukuh Bergas Dec 2019

Dewan Perwakilan Rakyat Dan Majelis Permusyawaratan Rakyat Dalam Proses Impeachment Presiden Abdurrahman Wahid, Kukuh Bergas

Jurnal Hukum & Pembangunan

As a country that uses presidential systems, Indonesia realizes that the role of the president as an executive is powerful. Therefore it is necessary to establish legal rules or supervisory institutions as a counterweight to avoid abuse of authority. The DPR and MPR are legislative institutions whose task is to oversee the performance of the president. If a suspected violation is found, the DPR may submit a proposal for the dismissal of the president. Indonesia's 4th President experienced this case, K. H. Abdurrahman Wahid is also known as Gus Dur, because he was considered to have committed a violation which …


Model Pembentukan Peraturan Daerah Yang Ideal Dalam Penyelenggaraan Otonomi Daerah, Marten Bunga Dec 2019

Model Pembentukan Peraturan Daerah Yang Ideal Dalam Penyelenggaraan Otonomi Daerah, Marten Bunga

Jurnal Hukum & Pembangunan

This study aims to analyze the model formation of regional regulations in the implementation of regional autonomy. This research method used is included in the type of normative legal research that uses secondary data obtained from library materials in the form of primary legal material. The results of the study indicate that regional regulations in the implementation of regional autonomy are a policy instrument in the implementation of the regional government. Establishment of regional regulations that are in accordance with the interests of the community must implement the principles of regional autonomy and the content of regional regulations must not …


Polemik Jangka Waktu Pengajuan Gugatan Ke Pengadilan Tata Usaha Negara, Renius Albert Marvin, Anna Erliyana Prof. Dec 2019

Polemik Jangka Waktu Pengajuan Gugatan Ke Pengadilan Tata Usaha Negara, Renius Albert Marvin, Anna Erliyana Prof.

Jurnal Hukum & Pembangunan

The period of 90 (ninety) days to file a claim in the Administrative Court (PTUN) plays an important role because if the period is passed, the Administrative Decision (KTUN) can not be claimed even if the KTUN contains defects. The basic principle of regulation the period for filing a claim to the Administrative Court is determined explicitly in Article 55 of the Law of Administrative Courts, which is 90 (ninety) days after the KTUN is received or announced which can be applied in several variables that prove the opportunity for everyone can take legal action if the Administrative Decision issued …


Ketetapan Mpr Dalam Tata Urutan Peraturan Perundang-Undangan Di Indonesia, Nisrina Irbah Sati Dec 2019

Ketetapan Mpr Dalam Tata Urutan Peraturan Perundang-Undangan Di Indonesia, Nisrina Irbah Sati

Jurnal Hukum & Pembangunan

As a result of deliberation and representation based democracy in Indonesia, the UUD 1945 before the amendment presented MPR as the highest state institution that absorbed people's sovereignty, so it gained legitimacy to be a superordinate of state institutions in various branches of power. The MPR’s position as the highest state institution was also accompanied by a legislative function, in which the MPR was able to make its legal product known as Tap MPR. The change in the position of the MPR, which was no longer the highest institution of the state in the constitutional structure since the enactment of …


The Separation Of Migrant Families At The Border Under The Trump Administration’S Zero-Tolerance Policy: A Critical Analysis Of The Mistreatment Of Immigrant Children Held In U.S. Custody, Dhillon Ramkhelawan Dec 2019

The Separation Of Migrant Families At The Border Under The Trump Administration’S Zero-Tolerance Policy: A Critical Analysis Of The Mistreatment Of Immigrant Children Held In U.S. Custody, Dhillon Ramkhelawan

Child and Family Law Journal

This article provides a critical analysis of the Trump Administration’s zero-tolerance policy that separated migrant families at the Southwest United States border from April to June 2018. It will provide a statistical analysis regarding the number of migrant children that were separated from their parents during this time period, and it will describe the poor living conditions that many of these children were subjected to as they waited for their parent’s immigration cases to be decided. Additionally, this article will also critically analyze the United States’ history of mistreating migrant children who started to flee their war-torn countries in Central …


The Effects Of Forcible Separation And The Ramifications Involved In Using Genetic Testing To Reunite Immigrants At The Border, Thameshwarie Ghamandi Dec 2019

The Effects Of Forcible Separation And The Ramifications Involved In Using Genetic Testing To Reunite Immigrants At The Border, Thameshwarie Ghamandi

Child and Family Law Journal

No abstract provided.


Of Sustainable Development In Africa: Addressing The (In)Congruence Of Plastic Bag Regulations With International Trade Rules, Regis Y, Simo Dec 2019

Of Sustainable Development In Africa: Addressing The (In)Congruence Of Plastic Bag Regulations With International Trade Rules, Regis Y, Simo

Brooklyn Journal of International Law

Several aspects of the trade policies of African countries suffer from neglect in the legal literature. When they are the object of research, the focus is sometimes limited to their participation in the dispute settlement system or on the enforceability of special and differential treatment provisions. While practice displays that African countries have almost never been the target of complaints for a number a reasons, those approaches do not always take into consideration African countries’ domestic measures affecting the flow of goods and services, which could eventually trigger disputes. This paper intends to fill that gap and add to the …


The Clone Wars: The Right To Embryonic Gene Editing Under German Law, Keren Goldberger Dec 2019

The Clone Wars: The Right To Embryonic Gene Editing Under German Law, Keren Goldberger

Brooklyn Journal of International Law

Germany has the strictest genetic engineering laws in the world and bans virtually all kinds of embryonic gene editing. Since the invention of CRISPR, however, embryonic gene editing is more precise, and the possibilities of curing genetic diseases are more real than ever. This Note will argue for the right to embryonic gene editing through an analysis of German constitutional privacy and right to life jurisprudence. Ultimately, this Note argues for a right to procreate under German law that is backed by the state’s affirmative duty to encourage and protect life. When the technology is available, German Law should not …


Aboriginal Rights And Constitutional Conflict: The Marshall Court, State And Federal Sovereignty, And Native American Rights Under The 1789 Constitution, Guy Charlton Dec 2019

Aboriginal Rights And Constitutional Conflict: The Marshall Court, State And Federal Sovereignty, And Native American Rights Under The 1789 Constitution, Guy Charlton

American Indian Law Journal

No abstract provided.


Extraordinary And Compelling: Madison V. Alabama And The Issue Of Prison Reform For Elderly Prisoners, Jennifer Leto Dec 2019

Extraordinary And Compelling: Madison V. Alabama And The Issue Of Prison Reform For Elderly Prisoners, Jennifer Leto

University of Miami Race & Social Justice Law Review

No abstract provided.


Criminal Law--Production Of Government Records--Confidential Character, R. G. P. Dec 2019

Criminal Law--Production Of Government Records--Confidential Character, R. G. P.

West Virginia Law Review

No abstract provided.


“Disturbing Schools” Laws: Disturbing Due Process With Unconstitutionally Vague Limits On Student Behavior, Rachel Smith Dec 2019

“Disturbing Schools” Laws: Disturbing Due Process With Unconstitutionally Vague Limits On Student Behavior, Rachel Smith

Journal of Law and Policy

For over a century, the United States Supreme Court has held, in sum and substance, that students do not “shed their constitutional rights . . . at the schoolhouse gate.” In practice, however, while not shed entirely, many of those rights have been increasingly limited. “Disturbing Schools” Laws subject students to criminal charges for behaving in a distracting or obnoxious manner on campus—behavior which can easily be conceptualized as typical adolescent behavior. Challenges to Disturbing Schools Laws have resulted in opposing outcomes across Circuit Courts. This Note discusses how students may use the Fourth Circuit case Kenny v. Wilson to …


Experimental Punishments, John F. Stinneford Dec 2019

Experimental Punishments, John F. Stinneford

Notre Dame Law Review

The Cruel and Unusual Punishments Clause prohibits, under its original meaning, punishments that are unjustly harsh in light of longstanding prior practice. The Clause does not prohibit all new punishments; rather, it directs that when a new punishment is introduced it should be compared to traditional punishments that enjoy long usage. This standard presents a challenge when the government introduces a new method of punishment, particularly one that is advertised as more “progressive” or “humane” than those it replaces. It may not always be obvious, for example, how to compare a prison sentence to a public flogging, or death by …


The Enumerated-Rights Reading Of The Privileges Or Immunities Clause: A Response To Barnett And Bernick, Kurt T. Lash Dec 2019

The Enumerated-Rights Reading Of The Privileges Or Immunities Clause: A Response To Barnett And Bernick, Kurt T. Lash

Notre Dame Law Review

In their new article, The Privileges or Immunities Clause, Abridged: A Critique of Kurt Lash on the Fourteenth Amendment, Randy Barnett and Evan Bernick insist that this historical evidence does not support the enumerated-rights reading. Instead, Barnett and Bernick embrace what I call the “fundamental-rights” reading of the Privileges or Immunities Clause. This view maintains that the Clause should be understood as protecting a set of absolute rights nowhere expressly enumerated in the text of the Constitution, for example the unenumerated economic right to contract or to pursue a trade.

Rather than agreeing with John Bingham, Barnett and Bernick …


Protecting Health Information In Utero: A Radical Proposal, Luke Isaac Haqq Dec 2019

Protecting Health Information In Utero: A Radical Proposal, Luke Isaac Haqq

Journal of Law and Policy

This Article introduces an underappreciated space in which protected health information (“PHI”) remains largely unprotected, a fact that will become only more problematic as clinical medicine increasingly turns to genomics. The past decade has seen significant advances in the prevention of birth defects, especially with the introduction of clinical preconception, prenatal, and neonatal genomic sequencing. Parental access to the results of embryonic and fetal clinical sequencing is critical to reproductive autonomy; results can provide parents with important considerations in determining whether to seek or avoid conception, as well as in deciding whether to carry a pregnancy to term. The information …


The Long Road Back To Skokie: Returning The First Amendment To Mask Wearers, Rob Kahn Dec 2019

The Long Road Back To Skokie: Returning The First Amendment To Mask Wearers, Rob Kahn

Journal of Law and Policy

When the Seventh Circuit upheld the First Amendment right of Nazis to march in Skokie, Illinois in 1978, the protection of mask wearers was not far behind. Since then, doctrinal paths have diverged. While the Supreme Court continues to protect hate speech, mask wearing has been increasingly placed outside First Amendment protection. This article seeks to get to the bottom of this doctrinal divergence by addressing the symbolic purposes of mask bans—rooted in repudiating the Ku Klux Klan—as well as the doctrinal steps taken over the past forty years to restrict the First Amendment claims of mask wearers. It also …


Why Robert Mueller's Appointment As Special Counsel Was Unlawful, Steven G. Calabresi, Gary Lawson Dec 2019

Why Robert Mueller's Appointment As Special Counsel Was Unlawful, Steven G. Calabresi, Gary Lawson

Notre Dame Law Review

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (DOJ) has had in place regulations providing for the appointment of “special counsels” who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17, 2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We …


“Armed And Dangerous” A Half Century Later: Today’S Gun Rights Should Impact Terry’S Framework, Alexander Butwin Dec 2019

“Armed And Dangerous” A Half Century Later: Today’S Gun Rights Should Impact Terry’S Framework, Alexander Butwin

Fordham Law Review

Over fifty years ago, in Terry v. Ohio, the U.S. Supreme Court established a two-part framework in which police officers may, without a warrant, stop and search an individual for weapons without violating the Fourth Amendment’s protections against unreasonable searches and seizures. Officers must (1) suspect that criminal activity has occurred, or will soon occur, and (2) have a reasonable fear that the individual is “armed” and poses a threat to the responding officers or to others—i.e., “dangerous.” The second prong’s exact meaning is disputed and has created a split among the circuits as to whether merely being “armed” …


Animal Rights: Time To Start Unpacking What Rights And For Whom, Jane Kotzmann, Nick Pendergrast Dec 2019

Animal Rights: Time To Start Unpacking What Rights And For Whom, Jane Kotzmann, Nick Pendergrast

Mitchell Hamline Law Review

No abstract provided.


The Privileges Or Immunities Clause, Abridged: A Critique Of Kurt Lash On The Fourteenth Amendment, Randy E. Barnett, Evan D. Bernick Dec 2019

The Privileges Or Immunities Clause, Abridged: A Critique Of Kurt Lash On The Fourteenth Amendment, Randy E. Barnett, Evan D. Bernick

Notre Dame Law Review

In earlier writings, both of us have expressed sympathy for the view that the Privileges or Immunities Clause affords absolute protection to unenumerated rights, such as those contained in the Civil Rights Act of 1866, and authorizes Congress to enact protective legislation. Neither of us, however, has engaged with Kurt Lash’s most recent and unique two-class interpretation of the original meaning of the Privileges or Immunities Clause in the depth that it deserves. Nor have we evaluated his recent efforts to demonstrate that the Fourteenth Amendment’s Due Process of Law Clause empowers the federal courts and Congress to protect unenumerated …


Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers Dec 2019

Lawful Searches Incident To Unlawful Arrests: A Reform Proposal, Mark A. Summers

Buffalo Law Review

No abstract provided.


The Difference Narrows: A Reply To Kurt Lash, Randy E. Barnett, Evan D. Bernick Dec 2019

The Difference Narrows: A Reply To Kurt Lash, Randy E. Barnett, Evan D. Bernick

Notre Dame Law Review

We thank the Notre Dame Law Review for allowing us to respond to Kurt Lash’s reply to our critique of his interpretation of the Privileges or Immunities Clause. We could forgive readers for having difficulty adjudicating this dispute. When Lash argues, evidence always comes pouring forth, and the sheer volume can overwhelm the senses. We sometimes have a hard time following his arguments, and we are experts in the field. We can only imagine how it seems to those who are otherwise unfamiliar with this terrain.

So, in this reply—with a few exceptions—we will avoid piling up any new evidence …


A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko Dec 2019

A Computational Analysis Of Constitutional Polarization, David E. Pozen, Eric L. Talley, Julian Nyarko

Cornell Law Review

This Article is the first to use computational methods to investigate the ideological and partisan structure of constitutional discourse outside the courts. We apply a range of machine- learning and text-analysis techniques to a newly available data set comprising all remarks made on the U.S. House and Senate floors from 1873 to 2016, as well as a collection of more recent newspaper editorials. Among other findings, we demonstrate (1) that constitutional discourse has grown increasingly polarized over the past four decades; (2) that polarization has grown faster in constitutional discourse than in nonconstitutlonal discourse; (3) that conservative-leaning speakers have driven …


Rediscovering Corfield V. Coryell, Gerard N. Magliocca Dec 2019

Rediscovering Corfield V. Coryell, Gerard N. Magliocca

Notre Dame Law Review

This Article reveals new details about Corfield v. Coryell based on archival research. In 2017, the author found Justice Washington’s original notes on Corfield in the Chicago History Museum. The most important revelation about Corfield is that the Justice was initially inclined to hold that the state law his decision upheld was, in fact, unconstitutional under the Privileges and Immunities Clause. The notes also say that he saw Livingston v. Van Ingen as the leading precedent on the Privileges and Immunities Clause and backed Chancellor Kent’s view in that case that the Clause articulated a nondiscrimination rule for out-of-state citizens …


A Call To Clarify The "Scope Of Authority" Question Of Qualified Immunity, Pat Fackrell Nov 2019

A Call To Clarify The "Scope Of Authority" Question Of Qualified Immunity, Pat Fackrell

Cleveland State Law Review

It is no secret the doctrine of qualified immunity is under immense scrutiny. Distinguished jurists and scholars at all levels have criticized the doctrine of qualified immunity, some calling for it to be reconsidered or overruled entirely.

Amidst this scrutiny lies uncertainty in the doctrine’s application. Specifically, the federal courts of appeal are split three ways on the question of whether an official exceeding the official’s scope of authority under state law at the time of the alleged constitutional violation can successfully assert qualified immunity. Some courts of appeal do not require the official to demonstrate he acted within the …


'It Wasn't Supposed To Be Easy': What The Founders Originally Intended For The Senate's 'Advice And Consent' Role For Supreme Court Confirmation Processes, Michael W. Wilt Nov 2019

'It Wasn't Supposed To Be Easy': What The Founders Originally Intended For The Senate's 'Advice And Consent' Role For Supreme Court Confirmation Processes, Michael W. Wilt

Channels: Where Disciplines Meet

The Founders exerted significant energy and passion in formulating the Appointments Clause, which greatly impacts the role of the Senate and the President in appointing Supreme Court Justices. The Founders, through their understanding of human nature, devised the power to be both a check by the U.S. Senate on the President's nomination, and a concurrent power through joint appointment authority. The Founders initially adopted the Senate election mode via state legislatures as a means of insulation from majoritarian passions of the people too. This paper seeks to understand the Founders envisioning for the Senate's 'Advice and Consent' role as it …


Virginia Uranium, Inc. V. Warren, Nyles G. Greer Nov 2019

Virginia Uranium, Inc. V. Warren, Nyles G. Greer

Public Land & Resources Law Review

The Supreme Court of the United States recently ruled that the Atomic Energy Act did not preempt a Virginia law prohibiting uranium mining in the Commonwealth. The Court held that although the Act delegated substantial power over the nuclear life cycle to the Nuclear Regulatory Commission, it offered no indication that Congress sought to strip states of their traditional power to regulate mining on private lands within their borders.


Public Rights, Private Privileges, And Article Iii, John Harrison Nov 2019

Public Rights, Private Privileges, And Article Iii, John Harrison

Georgia Law Review

PUBLIC RIGHTS, PRIVATE PRIVILEGES, AND ARTICLE III John Harrison* This Article addresses the constitutional justification for adjudication by executive agencies that rests on the presence of a public right. The public rights rationale originated in the nineteenth century and was for many decades the dominant explanation for the performance of adjudicative functions by executive agencies. The U.S. Supreme Court most recently relied on that rationale in Oil States Energy Services v. Greene’s Energy Group in 2018. In light of the Court’s interest in the nineteenth century system, this Article explores that system in depth and seeks to identify the ways …


Left With No Name: How Government Action In Intra-Church Trademark Disputes Violates The Free Exercise Clause Of The First Amendment, Mary Kate Nicholson Nov 2019

Left With No Name: How Government Action In Intra-Church Trademark Disputes Violates The Free Exercise Clause Of The First Amendment, Mary Kate Nicholson

Washington and Lee Law Review

The United States was founded in part on the principle of freedom of religion, where citizens were free to practice any religion. The founding fathers felt so strongly about this principle that it was incorporated into the First Amendment. The Free Exercise Clause states that “Congress shall make no law . . . prohibiting the free exercise thereof . . . .” The Supreme Court later adopted the neutral principles approach to avoid Free Exercise violations resulting from courts deciding real property disputes. Without the application of the same neutral principles to intellectual property disputes between churches, however, there is …


A Game Theoretic Analysis Of Marbury V Madison: The Origins Of Judicial Review, Daniel R. Debutts Nov 2019

A Game Theoretic Analysis Of Marbury V Madison: The Origins Of Judicial Review, Daniel R. Debutts

James Blair Historical Review

The presented research seeks to further our understanding of the Supreme Court’s formation of judicial review through an historical and game theoretic analysis. Marbury v Madison (1803) has long been hailed as a foundational case in which Chief Justice Marshall outfoxed President Jefferson in a duel of wits. Yet, despite this claim, there are surprisingly few papers that apply modern game-theory to what is widely considered a landmark—and rather iconic—supreme court case. In my paper, I review this notion and, in doing so, come to better understand inter-institutional relationships and their corresponding game theoretic strategies. More importantly, however, I suggest …