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Articles 1 - 30 of 31
Full-Text Articles in Law
The New Governancism?, 59 Saint Louis University Law Journal 1079 (2015)., Mark D. Rosen
The New Governancism?, 59 Saint Louis University Law Journal 1079 (2015)., Mark D. Rosen
Mark D. Rosen
No abstract provided.
Religious Institutions, Liberal States, And The Political Architecture Of Overlapping Spheres, Mark Rosen
Religious Institutions, Liberal States, And The Political Architecture Of Overlapping Spheres, Mark Rosen
Mark D. Rosen
No abstract provided.
Beyond Interpretation: The "Cultural Approach" To Understanding Extra-Formal Change In Religious And Constitutional Law (Invited Symposium Contribution), Mark Rosen
Mark D. Rosen
No abstract provided.
Why Broccoli? Limiting Principles And Popular Constitutionalism In The Health Care Case, Mark D. Rosen, Christopher W. Schmidt
Why Broccoli? Limiting Principles And Popular Constitutionalism In The Health Care Case, Mark D. Rosen, Christopher W. Schmidt
Mark D. Rosen
Crucial to the Court’s disposition in the constitutional challenge to the Affordable Care Act (ACA) was a hypothetical mandate to purchase broccoli, which Congress never had considered and nobody thought would ever be enacted. For the five Justices who concluded the ACA exceeded Congress’s commerce power, a fatal flaw in the government’s case was its inability to offer an adequate explanation for why upholding that mandate would not entail also upholding a federal requirement that all citizens purchase broccoli. The minority insisted the broccoli mandate was distinguishable. This Article argues that the fact that all the Justices insisted on providing …
The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen
The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen
Mark D. Rosen
Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …
The Educational Autonomy Of Perfectionist Religious Groups In A Liberal State (Symposium), Mark Rosen
The Educational Autonomy Of Perfectionist Religious Groups In A Liberal State (Symposium), Mark Rosen
Mark D. Rosen
No abstract provided.
Why (And To What Extent) Political Liberalism Should Accommodate Perfectionist Religious Groups (Forthcoming), Mark Rosen
Mark D. Rosen
No abstract provided.
The Speech Act's Unfortunate Parochialism: Of Libel Tourism And Legitimate Pluralism (Invited Symposium Contribution), Mark D. Rosen
The Speech Act's Unfortunate Parochialism: Of Libel Tourism And Legitimate Pluralism (Invited Symposium Contribution), Mark D. Rosen
Mark D. Rosen
No abstract provided.
The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen
The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen
Mark D. Rosen
Democracy does not spontaneously occur by citizens gathering to choose laws. Instead, representative democracy takes place within an extensive legal framework that determines such matters as who gets to vote, how campaigns are conducted, and what conditions must be met for representatives to make valid law. Many of the “rules of the road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against partisan gerrymandering—which is partly responsible for the fact that most congressional districts are no longer party competitive, but instead are either safely Republican or safely Democratic—and against onerous …
Evaluating Tribal Courts' Interpretations Of The Indian Civil Rights Act, Mark D. Rosen
Evaluating Tribal Courts' Interpretations Of The Indian Civil Rights Act, Mark D. Rosen
Mark D. Rosen
No abstract provided.
Congress' Primary Role In Determining What Full Faith And Credit Requires: An Additional Argument, Mark D. Rosen
Congress' Primary Role In Determining What Full Faith And Credit Requires: An Additional Argument, Mark D. Rosen
Mark D. Rosen
No abstract provided.
From Exclusivity To Concurrence, Mark Rosen
State Extraterritorial Powers Reconsidered, Mark D. Rosen
State Extraterritorial Powers Reconsidered, Mark D. Rosen
Mark D. Rosen
No abstract provided.
Contextualizing Preemption, Mark Rosen
Was Shelley V. Kraemer Incorrectly Decided? Some New Answers (Winner Of The 2006 Outstanding Scholarly Paper Award From The Association Of American Law Schools), Mark D. Rosen
Mark D. Rosen
Shelley v. Kraemer, the 1948 decision that famously forbade state courts from enforcing racially restrictive covenants, has proven to be immensely difficult to justify. Under Shelley's attribution rationale, a contract's substantive provisions are to be attributed to the state when a court enforces the contract. Thus although Shelley ruled that racially restrictive covenants themselves were perfectly legal, it held that judicial enforcement of the covenants constituted state action that violated the Equal Protection Clause. Shelley's attribution rationale meant that courts could not enforce contracts with provisions that could not have been constitutionally enacted by a legislature. This Article shows, however, …
Why The Defense Of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith And Credit, And The Many Societal Actors That Determine What The Constitution Requires, Mark D. Rosen
Mark D. Rosen
This Article argues that the Defense of Marriage Act (DOMA) is not unconstitutional - at least not yet. DOMA provides that States need not recognize same-sex marriages (or judgments in connection with such marriages) performed in sister States. The Article first shows that the Supreme Court's recent opinion in Lawrence v. Texas, which struck down as unconstitutional state laws that criminalized sodomy, has not invalidated the DOMA. Lawrence is best understood as having left undecided the constitutional status of same-sex marriage, and the Article explains the benefits of the Court's having held back its constitutional judgment on this subject at …
Modeling Constitutional Doctrine (Symposium), Mark D. Rosen
Modeling Constitutional Doctrine (Symposium), Mark D. Rosen
Mark D. Rosen
No abstract provided.
Institutional Context In Constitutional Law: A Critical Examination Of Term Limits, Judicial Campaign Codes, And Anti-Pornography Ordinances, Mark D. Rosen
Mark D. Rosen
No abstract provided.
Searching For The Peaceable Kingdom (Reviewing Carol Weisbrod, Emblems Of Pluralism), Mark Rosen
Searching For The Peaceable Kingdom (Reviewing Carol Weisbrod, Emblems Of Pluralism), Mark Rosen
Mark D. Rosen
No abstract provided.
Do Codification And Private International Law Leave Room For A New Law Merchant? (Symposium), Mark Rosen
Do Codification And Private International Law Leave Room For A New Law Merchant? (Symposium), Mark Rosen
Mark D. Rosen
No abstract provided.
Exporting The Constitution, Mark Rosen
Exporting The Constitution, Mark Rosen
Mark D. Rosen
If a foreign government enacts a law that would be unconstitutional if passed in the United States, can a foreign judgment based on that law be enforced in an American court? For example, can an American court enforce an English judgment based on English defamation law, which is more pro-plaintiff than the First Amendment permits American law to be? The same issue was presented by recent litigation involving Yahoo!, where a federal district court considered whether it could enforce a French judgment based on a French law that regulated hate speech more broadly than the First American allows American polities …
Should "Un-American" Foreign Judgments Be Enforced?, Mark D. Rosen
Should "Un-American" Foreign Judgments Be Enforced?, Mark D. Rosen
Mark D. Rosen
In an earlier article I demonstrated that American courts are not constitutionally precluded from enforcing foreign judgments based on foreign laws that the Constitution prevents American governments from enacting. (Exporting the Constitution, 53 Emory L. J. 171 (2004)). Consider, for instance, an English defamation judgment based on English law, which is more pro-plaintiff than the First Amendment permits American law to be. I showed that although the English judgment may well be un-American insofar as it come from a non-American polity and reflects political values that are at variance with American constitutional law, neither the judgment itself nor its enforcement …
"Illiberal" Societal Cultures, Liberalism, And American Constitutionalism, Mark Rosen
"Illiberal" Societal Cultures, Liberalism, And American Constitutionalism, Mark Rosen
Mark D. Rosen
No abstract provided.
The Radical Possibility Of Limited Community-Based Interpretation Of The Constitution, Mark D. Rosen
The Radical Possibility Of Limited Community-Based Interpretation Of The Constitution, Mark D. Rosen
Mark D. Rosen
This Article explores a radical method under the U.S. Constitution for devolving extraordinary political power to select communities. The United States Constitution places limitations on the exercise of public power by sub-federal polities. When insular groups seek to exercise public power to govern themselves, however, there may be special constitutional limitations that are operative - doctrines that afford their local governments more options in the exercise of power than ordinary state and local governments enjoy. The Article shows that Congress may grant the communities the authority to construe designated provisions of the United States Constitution insofar as the provisions apply …
Multiple Authoritative Interpreters Of Quasi-Constitutional Federal Law: Of Tribal Courts And The Indian Civil Rights Act, Mark Rosen
Mark D. Rosen
No abstract provided.
Our Nonuniform Constitution: Geographical Variations Of Constitutional Requirements In The Aid Of Community, Mark D. Rosen
Our Nonuniform Constitution: Geographical Variations Of Constitutional Requirements In The Aid Of Community, Mark D. Rosen
Mark D. Rosen
This Article highlights an overlooked but integral aspect of American constitutional law: that some activities believed to be flatly unconstitutional are permissible in select locations. Contrary to what the Constitution has been construed to proscribe in most jurisdictions, for example, governments in some places in our country can ban political speeches by citizens, impose prior restraints with regard to petitions to government officials, and disallow defendants at risk of incarceration from having counsel. The Article brings together the case law that creates nonuniformity across geographical locations. It first explains the mechanics by which this "geographical constitutional nonuniformity" is generated and …
The Outer Limits Of Community Self-Governance In Residential Associations, Municipalities, And Indian Country: A Liberal Theory, Mark D. Rosen
The Outer Limits Of Community Self-Governance In Residential Associations, Municipalities, And Indian Country: A Liberal Theory, Mark D. Rosen
Mark D. Rosen
This Article provides a normative framework that seeks to answer the questions of when and to what extent society should allow "dissident" communities to opt out of general culture and govern themselves. It surveys a number of such groups and develops an ideal typical conception of the ideology that drives them. Drawing on John Rawls' Political Liberalism, the Article then argues that foundational liberal commitments require that society grant most of these communities far greater powers to self-govern than currently are allowed under the law, subject to certain limits that the Article identifies. The Article then applies its framework to …
Rationalizing Product Liability For Prescription Drugs: Implied Preemption, Federal Common Law, And Other Paths To Uniform Pharmaceutical Safety Standards (With D. Geiger), Mark Rosen
Mark D. Rosen
No abstract provided.
Defrocking The Courts: Resolving 'Cases Or Controversies,' Not Announcing Transcendental Truths, Mark Rosen
Defrocking The Courts: Resolving 'Cases Or Controversies,' Not Announcing Transcendental Truths, Mark Rosen
Mark D. Rosen
No abstract provided.
What Has Happened To The Common Law? -- Recent American Codifications, And Their Impact On Judicial Practice And The Law's Subsequent Development, Mark Rosen
Mark D. Rosen
The Article documents that the general failure of the nineteenth century movement to codify American common law has given way to a quiet piecemeal codification over the past seventy five years. The Article assesses the consequences of this large-scale shift from common law to code. While the jurisprudential concerns voiced by opponents of codification in the nineteenth century (that codification would strip judges of necessary discretion and freeze growth of the law) have not materialized, the recent American codes have shaped the law's subsequent evolution in several critical respects. For one, the Article shows that unarticulated, non-axiomatic views of human …