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Articles 1 - 18 of 18
Full-Text Articles in Law
Judicial Fidelity, Caprice L. Roberts
Judicial Fidelity, Caprice L. Roberts
Journal Articles
Judicial critics abound. Some say the rule of law is dead across all three branches of government. Four are dead if you count the media as the fourth estate. All are in trouble, even if one approves of each branch’s headlines, but none of them are dead. Not yet.
Pundits and scholars see the latest term of the Supreme Court as clear evidence of partisan politics and unbridled power. They decry an upheaval of laws and norms demonstrating the dire situation across the federal judiciary. Democracy is not dead even when the Court issues opinions that overturn precedent, upends longstanding …
Moral Truth And Constitutional Conservatism, Gerard V. Bradley
Moral Truth And Constitutional Conservatism, Gerard V. Bradley
Louisiana Law Review
Conservative constitutionalism is committed to "originalism," that is, to interpreting the Constitution according to its original public understanding. This defining commitment of constitutional interpretation is sound. For decades, however, constitutional conservatives have diluted it with a methodology of restraint, a normative approach to the judicial task marked by an overriding aversion to critical moral reasoning. In any event, the methodology eclipsed originalism and the partnership with moral truth that originalism actually entails. Conservative constitutionalism is presently a mélange of mostly unsound arguments against the worst depredations of Casey's Mystery Passage. The reason for the methodological moral reticence is easy to …
A New Natural Law Reading Of The Constitution, Santiago Legarre
A New Natural Law Reading Of The Constitution, Santiago Legarre
Louisiana Law Review
The article focuses on how natural law can factor into constitutional interpretation in subtle but significant ways and mentions natural law has two different levels of presence in constitutional law.
Characterizing Constitutional Inputs, Michael Coenen
Characterizing Constitutional Inputs, Michael Coenen
Journal Articles
No abstract provided.
More Restrictive Alternatives, Michael Coenen
Why The Late Justice Scalia Was Wrong: The Fallacies Of Constitutional Textualism, Ken Levy
Why The Late Justice Scalia Was Wrong: The Fallacies Of Constitutional Textualism, Ken Levy
Journal Articles
No abstract provided.
Who Are The Punishers, Raff Donelson
Restitution And The Excessive Fines Clause, Kevin Bennardo
Restitution And The Excessive Fines Clause, Kevin Bennardo
Louisiana Law Review
The article offers solutions to further the conversation regarding the U.S. constitution's Eighth Amendment's limits on restitution. Topics discussed include application of Excessive Fines Clause; the case law interpreting the Excessive Fines Clause of the Eighth Amendment; and ways in which Excessive Fines Clause should be applied to restitution in criminal cases.
By The Pricking Of My Thumbs, State Restriction This Way Comes: Immunizing Vaccination Laws From Constitutional Review, Megan Joy Rials
By The Pricking Of My Thumbs, State Restriction This Way Comes: Immunizing Vaccination Laws From Constitutional Review, Megan Joy Rials
Louisiana Law Review
The article argues how states should not allow philosophical exemptions and should either retain or create religious exemptions that meet certain requirements under the Free Exercise Clause, the Due Process Clause, and the Establishment Clause. It reports the U.S. Supreme Court's jurisprudence regarding parental rights in cases 'Jacobson v. Massachusetts' and 'Zucht v. King.'
Combining Constitutional Clauses, Michael Coenen
Combining Constitutional Clauses, Michael Coenen
Journal Articles
No abstract provided.
Interpreting Force Authorization, Scott Sullivan
Interpreting Force Authorization, Scott Sullivan
Journal Articles
This Article presents a theory of authorizations for the use of military force (AUMFs) that reconciles separation of power failures in the current interpretive model. Existing doctrine applies the same text-driven models of statutory interpretation to AUMFs that are utilized with all other legal instruments. However, the conditions at birth, objectives, and expected impacts underlying military force authorizations differ dramatically from typical legislation. AUMFs are focused but temporary corrective interventions intended to change the underlying facts that prompted their passage. This Article examines historical practice and utilizes institutionalist principles to develop a theory of AUMF decay that eschews text in …
The Future Of The Foreign Commerce Clause, Scott Sullivan
The Future Of The Foreign Commerce Clause, Scott Sullivan
Journal Articles
The Foreign Commerce Clause has been lost, subsumed by its interstate cousin, and overshadowed in foreign relations by the treaty power. Consistent with its original purpose and the implied, but unrefined view asserted by the judiciary, this Article articulates a broader and deeper Foreign Commerce power than is popularly understood. It reframes doctrinal considerations for a reinvigorated Foreign Commerce Clause--both as an independent power and in alliance with other coordinate foreign affairs powers--and demonstrates that increasing global complexity and interdependence makes broad and deep federal authority under this power crucial to effective and efficient action in matters of national concern.
Spillover Across Remedies, Michael Coenen
Spillover Across Remedies, Michael Coenen
Journal Articles
Remedies influence rights, and rights apply across remedies. Combined together, these two phenomena produce the problem of spillover across remedies. The spillover problem occurs when considerations specific to one remedy affect the definition of a substantive rule that governs in other remedial settings. For example, the severe remedial consequences of suppressing incriminating evidence might generate substantive Fourth Amendment precedents that make other Fourth Amendment remedies (such as damage awards, injunctions, or ex ante denials of search warrants) more difficult to obtain. Or, the rule of lenity might yield a narrowed reading of a statutory rule in a criminal case, which …
Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Andrea B. Carroll
Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Andrea B. Carroll
Journal Articles
The article focuses on limited use of reproductive technologies in defense of discriminating against unmarried intended parents. It emphasizes to eliminate unconstitutional treatment of prospective parents involved in the surrogacy process. It informs that State laws related to surrogacy create discrimination which is based on marital status. It suggests that surrogacy should be included as a permissible reproductive avenue for right to married and unmarried intended parents in the U.S.
Extraterritoriality And The Dormant Commerce Clause: A Doctrinal Post-Mortem, Brannon P. Denning
Extraterritoriality And The Dormant Commerce Clause: A Doctrinal Post-Mortem, Brannon P. Denning
Louisiana Law Review
The article offers information related to the dormant Commerce Clause doctrine (DCCD), a legal doctrine that courts in the U.S. have inferred from the commerce clause related to the prohibition of the extraterritorial state legislation. It mentions that the clause expressly grants congress the power to regulate commerce among the several states.
Constitutional Privileging, Michael Coenen
Constitutional Privileging, Michael Coenen
Journal Articles
“Constitutional privileging” occurs when courts treat the constitutional status of a legal claim as a reason to afford it specialized procedural or remedial treatment — in effect providing to that claim a greater degree of judicial care and attention than its nonconstitutional counterparts receive. Though seldom scrutinized by courts and commentators, this practice occurs within a variety of doctrinal settings. For example, a stricter standard of harmless error review governs constitutional claims; district court findings of facts (and mixed findings) are subject to a stricter form of appellate review in constitutional cases; collateral relief from federal court judgments is more …
Of Speech And Sanctions: Toward A Penalty-Sensitive Approach To The First Amendment, Michael Coenen
Of Speech And Sanctions: Toward A Penalty-Sensitive Approach To The First Amendment, Michael Coenen
Journal Articles
Courts confronting First Amendment claims do not often scrutinize the severity of a speaker’s punishment. Embracing a “penalty-neutral” understanding of the free-speech right, these courts tend to treat an individual’s expression as either protected, in which case the government may not punish it at all, or unprotected, in which case the government may punish it to a very great degree. There is, however, a small but important body of “penalty-sensitive” case law that runs counter to the penalty-neutral norm. Within this case law, the severity of a speaker’s punishment affects the merits of her First Amendment claim, thus giving rise …
The Significance Of Signatures: Why The Framers Signed The Constitution And What They Meant By Doing So, Michael Coenen
The Significance Of Signatures: Why The Framers Signed The Constitution And What They Meant By Doing So, Michael Coenen
Journal Articles
The signing of the U.S. Constitution is traditionally understood as the closing act of the Constitutional Convention. This Note provides an alternative account, one that understands the Constitution’s signing as the opening act of the ratification campaign that followed in the Convention’s wake. To begin, the Note explains the signatures’ ambiguous form as the product of political maneuvering designed to win support for the Constitution during ratification. The Note then hypothesizes two ways in which the signatures may have helped to secure this support: (1) by highlighting pro-Constitution selling-points likely to resonate with the ratifying public; and (2) by limiting …