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Full-Text Articles in Law

International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Wuerth Jan 2007

International Law And Constitutional Interpretation: The Commander In Chief Clause Reconsidered, Ingrid Wuerth

Vanderbilt Law School Faculty Publications

The Commander in Chief Clause is a difficult, underexplored area of constitutional interpretation. It is also a context in which international law is often mentioned, but not fully defended, as a possible method of interpreting the Constitution. This Article analyzes why the Commander in Chief Clause is difficult and argues that international law helps resolve some of the problems that the Clause presents. Because of weaknesses in originalist analysis, changes over time, and lack of judicial competence in military matters, the Court and commentators have relied on second-order interpretive norms like congressional authorization and executive branch practice in interpreting the …


Constitutional Isolationism And The Limits Of State Separation Of Powers As A Barrier To Interstate Compacts, Jim Rossi Jan 2007

Constitutional Isolationism And The Limits Of State Separation Of Powers As A Barrier To Interstate Compacts, Jim Rossi

Vanderbilt Law School Faculty Publications

In this Essay, I address the question of which branch of state government ought to have the authority to negotiate interstate compacts - a question of state separation of powers. Recent case law interpreting state constitutions in the context of Indian gambling compacts provides a particularly fertile ground for exploring this question, as it illustrates how courts are struggling to find a way to allow state executive officials greater autonomy to negotiate interstate compacts. Part I illustrates how traditional notions of separation of powers under state constitutions can be understood to pose a barrier to executive branch negotiation of interstate …


Cunningham V. California - Case Comment, Rebecca Haw Allensworth Jan 2007

Cunningham V. California - Case Comment, Rebecca Haw Allensworth

Vanderbilt Law School Faculty Publications

Sixth Amendment--Allocation of Fact-finding in Sentencing.--Apprendi v. New Jersey spawned a series of Supreme Court sentencing decisions which, when viewed together, are at best confusing and at worst contradictory. Commentators and courts have struggled to find a coherent governing principle uniting "Apprendi," "Blakely v. Washington," and "United States v. Booker." The holding in "Apprendi," originally described as a bright-line rule, has proved anything but. Last Term, in "Cunningham v. California," the Court added another chapter to the Apprendi saga when it declared unconstitutional California's Determinate Sentencing Law (DSL). Justice Ginsburg authored the majority opinion that overturned the California Supreme Court's …


The Constitutional Foundations Of Chenery, Kevin M. Stack Jan 2007

The Constitutional Foundations Of Chenery, Kevin M. Stack

Vanderbilt Law School Faculty Publications

The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court's opinion expressed the wrong reasons for it. Not so in the case of judicial review of administrative agencies. The established rule, formulated in SEC v. Chenery Corp., is that a reviewing court may uphold an agency's action only on the grounds upon which the agency relied when it acted. This Article argues that something more than distrust of agency lawyers is at work in Chenery. By making the validity of …


The Populist Safeguards Of Federalism, Robert A. Mikos Jan 2007

The Populist Safeguards Of Federalism, Robert A. Mikos

Vanderbilt Law School Faculty Publications

Extant legal scholarship often portrays citizens as the catalysts of federalization. Scholars say that citizens pressure Congress to impose their morals on people living in other states, to trump home-state laws with which they disagree, or to shift the costs of regulatory programs onto out-of-state taxpayers, all to the demise of states' rights. Since Congress (usually) gives citizens what they want, scholars insist the courts must step in to protect states from federal encroachments. By contrast, this Article proposes a new theory of the populist safeguards of federalism. It develops two distinct but mutually reinforcing reasons why populist demands on …


The Liberal Assault On The Fourth Amendment, Christopher Slobogin Jan 2007

The Liberal Assault On The Fourth Amendment, Christopher Slobogin

Vanderbilt Law School Faculty Publications

As construed by the Supreme Court, the Fourth Amendment's reasonableness requirement regulates overt, non-regulatory government searches of homes, cars, and personal effects-and virtually nothing else. This essay is primarily about how we got to this point. It is fashionable to place much of the blame for today's law on the Warren Court's adoption of the malleable expectation of privacy concept as the core value protected by the Fourth Amendment. But this diagnosis fails to explain why even the more liberal justices have often gone along with many of the privacy-diminishing holdings of the Court. This essay argues that three other …