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Articles 1 - 30 of 35
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
Hard Or Soft Pluralism?: Positive, Normative, And Institutional Considerations Of States’ Extraterritorial Powers, Mark D. Rosen
Hard Or Soft Pluralism?: Positive, Normative, And Institutional Considerations Of States’ Extraterritorial Powers, Mark D. Rosen
Mark D. Rosen
This article is an invited commentary to an extremely thought-provoking address delivered by Richard H. Fallon, Jr., that addressed unexpected consequences that would follow a reversal of Roe v. Wade. The article addresses the question of states’ extraterritorial powers, and asks whether Mary, a citizen of a state that prohibited abortions (let’s say Utah), could be barred from obtaining abortions in a state (let’s say California) in which abortions were legal. The Article makes seven points in relation to this question. Its observations are relevant not only to the unlikely event of Roe’s demise, but also to a non-trivial class …
Revisiting Youngstown: Against The View That Jackson's Concurrence Resolves The Relation Between Congress And The Commander-In-Chief, Mark D. Rosen
Revisiting Youngstown: Against The View That Jackson's Concurrence Resolves The Relation Between Congress And The Commander-In-Chief, Mark D. Rosen
Mark D. Rosen
Virtually all legal analysts believe that the tripartite framework from Justice Jackson’s Youngstown concurrence provides the correct framework for resolving contests between Congress (when it regulates pursuant to its powers to make rules and regulations for the land and naval forces, for instance) and the president when he acts pursuant to his commander-in-chief powers. This Article identifies a core assumption of the tripartite framework that, up to now, has not been recognized and that consequently has not been adequately analyzed or justified. While Jackson’s framework importantly recognizes that Congress’s regulatory powers may overlap with the president’s commander-in-chief powers, the framework …
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 …
The Surprisingly Strong Case For Tailoring Constitutional Principles, Mark D. Rosen
The Surprisingly Strong Case For Tailoring Constitutional Principles, Mark D. Rosen
Mark D. Rosen
Many constitutional principles apply to more than one level of government. This is true not only of Bill of Rights guarantees that have been incorporated against the States, but of many constitutional principles whose source lies outside of the Bill of Rights. The conventional wisdom is that such multi-level constitutional principles apply identically to all levels of government. The Article's thesis is that this One-Size-Fits-All approach is problematic because the different levels of government - federal, state, and local - sometimes are sufficiently different that a given constitutional principle may apply differently to each level. This Article critically examines an …
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 …
Extraterritoriality And Political Heterogeneity In American Federalism, Mark D. Rosen
Extraterritoriality And Political Heterogeneity In American Federalism, Mark D. Rosen
Mark D. Rosen
It is commonly understood that as a matter of federal law, states' substantive policies may diverge in respect of those matters that are not violative of the United States Constitution. As a practical matter, however, what degree of political heterogeneity among states is possible vis-a-vis substantive policies that are not unconstitutional? The answer to the question turns in large part on whether states, if they so choose, can regulate their citizens even when they are out-of-state. If they cannot, citizens can bypass their home state’s laws by simply traveling to a more legally permissive state to do there what is …
"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 …