Law Commons^™

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …

It's The Constitution, Stupid: Two Liberals Pay Tribute To Antonin Scalia's Legacy, Adam Lamparello, Charles E. Maclean

Adam Lamparello

Living constitutionalism may achieve “good” results, but with each Roe v. Wade, and Bush v. Gore, the Constitution’s vision takes more shallow breaths, and democracy fades into elitism’s shadow. The debate over constitutional interpretation is, in many ways, reducible to this question: if a particular outcome is desirable, and the Constitution’s text is silent or ambiguous, should the United States Supreme Court (or any court) disregard constitutional constraints to achieve that outcome? If the answer is yes, nine unelected judges have the power to choose outcomes that are desirable. If the answer is no, then the focus must be on …

Navigating A Post-Windsor World: The Promise And Limits Of Marriage Equality, Nancy J. Knauer

Nancy J. Knauer

When the 2013 landmark decision in U.S. v. Windsor invalidated part of the Defense of Marriage Act (DOMA), it was hailed as a landmark civil rights victory, but its implementation has been far from seamless. The federal government has not applied a uniform rule for marriage recognition, applying a state-of-domicile rule for some purposes (Social Security) and a broader state-of-celebration rule for others (e.g., federal tax matters). Moreover, Windsor did not directly address the state-level marriage prohibitions that remain in place in the majority of states. As a result, the United States continues to be a patchwork of marriage laws …

Profit Sharing: An Alternative Minimum Wage Model, Nicholas Parker

Nicholas Parker

No abstract provided.

Sovereignty And Cooperation In Regional Pacific Tuna Fisheries Management: Politics, Economics, Conservation And The Vessel Day Scheme, Quentin A. Hanich, Hannah Parris, Ben M. Tsamenyi

Quentin Hanich

No abstract provided.

The Presentment Clause Meets The Suspension Power: The Affordable Care Act’S Long And Winding Road To Implementation, Mitchell Widener

Mitchell Widener

The presentment clause MEETs the Suspension Power: The Affordable Care Act’s Long and Winding Road to Implementation

Mitchell J. Widener

Abstract

To enact a law, the Presentment Clause of the Constitution mandates that both Houses of Congress present a bill to the President who either signs it into law or vetoes it. The Founders included this provision to prevent presidents from emulating King James II, who would routinely suspend Parliament’s laws to favor political constituents. Additionally, the Presentment Clause served to enhance the separation-of-powers principle implied in the Constitution.

Within the past year, President Obama has suspended multiple portions of …

Cuba And China: A Comparative Study Of Digital Oppression, Katharine M. Villalobos

Katharine M. Villalobos

The Digital Age has introduced a new form of expression that totalitarian states are struggling to silence. With social sharing websites like Twitter and Youtube, political dissidents living under oppressive governments can expose governmental abuse to web-users worldwide in a matter of seconds. However, while digital media has proved more difficult to control than traditional, non-electronic media, dictatorships like Cuba and China are resolved to prevent its inhabitants from freely using and expressing themselves on the Internet—even if that means violating their obligations as signatories of the International Covenant on Civil and Political Rights (ICCPR).

Both Cuba and China are …

America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

Robert L Tsai

The U.S. Constitution opens by proclaiming the sovereignty of all citizens: "We the People." Robert Tsai's gripping history of alternative constitutions invites readers into the circle of those who have rejected this ringing assertion--the defiant groups that refused to accept the Constitution's definition of who "the people" are and how their authority should be exercised. America's Forgotten Constitutions is the story of America as told by dissenters: squatters, Native Americans, abolitionists, socialists, internationalists, and racial nationalists. Beginning in the nineteenth century, Tsai chronicles eight episodes in which discontented citizens took the extraordinary step of drafting a new constitution. He examines …

Standing” On Formality: Hollingsworth V. Perry And The Efficacy Of Direct Democracy In The United States, Matthew A. Melone

Matthew A. Melone

No abstract provided.

Let Educators Educate, Let Builders Build: Making A Case For School Facility Privatization, John Pizzo

John Pizzo

No abstract provided.

Reflections On An Extraordinary Career: Thoughts About Jerry Caplan's Retirement, Michael Vitiello

Michael Vitiello

Reflections on an Extraordinary Career: Thoughts about Gerald Caplan’s Retirement Abstract: The occasion for this essay is the retirement of my colleague Gerald Caplan. But this is not a sentimental account of a friend’s career. Instead, I take the opportunity of Jerry’s retirement to reflect on the role of a thoughtful principled conservative as a Washington insider and as an academic. The essay explores three areas of Jerry’s distinguished career: the first is a discussion of his role in saving the Legal Services Corporation when it was under attack from the right wing, within and without the Reagan Administration. The …

Preventing Balkanization Or Facilitating Racial Domination: A Critique Of The New Equal Protection, Darren L. Hutchinson

Darren L Hutchinson

Abstract

Preventing Balkanization or Facilitating Racial Domination: A Critique of the

New Equal Protection

The Supreme Court requires that equal protection plaintiffs prove defendants acted with discriminatory intent. The intent rule has insulated from judicial invalidation numerous policies that harmfully impact racial and ethnic minorities. Court doctrine also mandates that state actors remain colorblind. The colorblindness doctrine has caused the Court to invalidate many policies that were designed to ameliorate the conditions of racial inequality. Taken together, these two equality doctrines facilitate racial domination. The Court justifies this outcome on the ground that the Constitution does not protect “group rights.” …

Marriage Equailty: Why Laws Restricting Same-Sex Couples' Rights Should Be Subject To Heightened Scrutiny Under Equal Protection Challenges., Cory A. Delellis

Cory A DeLellis

This thesis discusses why laws that restrict marital rights and recognition, on the basis of the couple’s sexual orientation, should be subject to a heightened or intermediate level of judicial scrutiny under Equal Protection challenges. This thesis addresses, analyzes, and suggests why sexual orientation – within the context of same-sex couples – should be considered a quasi-suspect class, rather than a non-suspect class, so that laws negatively impacting couples based on their sexual orientation are subjected to a fairer and more reasonable level of judicial scrutiny.

Interpreting Acronyms And Epithets: Examining The Jurisprudential Significance (Or Lack Thereof), Brian Christopher Jones

Brian Christopher Jones

Given the rise in short title sophistication and their prominent use as evidence in U.S. v. Windsor, this essay argues that acronym short titles are a relatively unexplored interpretive phenomenon. Examining how acronyms should be approached in jurisprudence, the essay further explains how many titles are designed around a symbolic epithet, thus calling into question the interpretative value of such titles. Additionally, the essay touches on the recent NY and D.C. decisions regarding the NSA’s bulk telephony metadata collection system, and how the USA PATRIOT acronym may have played a symbolic (psycholinguistic) role.

The Unintended Consequences Of Safety Regulation, Sherzod Abdukadirov

Sherzod Abdukadirov

This study examines how risk trade-offs undermine safety regulations. Safety regulations often come with unintended consequences in that regulations attempting to reduce risk in one area may increase risks elsewhere. The increases in countervailing risks may even exceed the reduction in targeted risks, leading to a policy that does more harm than good. The unintended consequences could be avoided or their impacts minimized through more careful analysis, including formal risk trade-off analysis, consumer testing, and retrospective analysis. Yet agencies face strong incentives against producing better analysis; increased awareness of risk trade-offs would force agencies to make unpalatable and politically sensitive …

Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page

Cathren Page

Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …

Unfulfilled Promise: Mental Disability Voting Rights And The Halving Of Hava’S Potential, Benjamin Hoerner

Benjamin O Hoerner

In 2012, the heated presidential election between President Barack Obama and Mitt Romney reanimated the debate surrounding the voting rights of mentally disabled citizens in the United States. A decade earlier, in October 2002, President George W. Bush signed into law the Help America Vote Act of 2002 (HAVA), aiming to protect the voting rights of the country’s disabled population. At the time of its enactment, legislators and commentators lauded HAVA as “the most important voting rights bill since the passing of the Voting Rights Act in 1965.” However, since its passage, HAVA has been subjected to a flurry of …

Behavioral International Law, Tomer Broude

Tomer Broude

Economic analysis and rational choice have in the last decade made significant inroads into the study of international law and institutions, relying upon standard assumptions of perfect rationality of states and decision-makers. This approach is inadequate, both empirically and in its tendency towards outdated formulations of political theory. This article presents an alternative behavioral approach that provides new hypotheses addressing problems in international law while introducing empirically grounded concepts of real, observed rationality. First, I address methodological objections to behavioral analysis of international law: the focus of behavioral research on the individual; the empirical foundations of behavioral economics; and behavioral …

The Fourth Zone Of Presidential Power: Analyzing The Debt-Ceiling Standoff Through The Prism Of Youngstown Steel, Chad Deveaux

Chad DeVeaux

In this Article, I use the Youngstown Steel Seizure Case to assess the reoccurring debt-ceiling standoffs between Congress and the White House. If the Treasury reaches the debt limit and Congress fails to act, the president will be forced to choose between three options: (1) cancel programs, (2) borrow funds in excess of the debt limit, or (3) raise taxes. Each of these options violates a direct statutory command. In Youngstown, Justice Jackson asserted that “[p]residential powers are not fixed but fluctuate, depending upon their disjunction or conjunction with those of Congress.” He offered his famous three-zone template which evaluates …

Two Dogmas Of Originalism, Ian C. Bartrum

Ian C Bartrum

In the early 1950s, Willlard Quine’s Two Dogmas of Empiricism offered a devastating critique of logical positivism and the effort to distinguish “science” from “metaphysics”. Quine demonstrated that positivists relied on dogmatic oversimplifications of both the world and human practices, and, in the end, suggested that our holistic natural experience cannot be reduced to purely logical explanations. In this piece, I argue that constitutional originalism—which, too, seeks to define a constitutional “science”—relies on similar dogmatisms. In particular, I contend that the “fixation thesis,” which claims that the constitutional judge’s first task is to fix the text’s semantic meaning at a …

Turf Wars: Territoriality And The Allocation Of Sales And Use Taxes In California, Kevin Schmitt

Kevin Schmitt

Sales and use tax revenue provides an important source of funding for California’s local governments, particularly its cities. Under the Bradley-Burns Uniform Local Sales and Use Tax Law, local governments may enact sales and use tax ordinances and contract with the state to manage collection and distribution. The current allocation system, known as the situs-based system, provides for distribution to local government based on the physical location of the retailer. Although such a system has logical appeal, in practice it has proven highly problematic, promoting unproductive competition among local governments for scarce revenue.

Reform of the situs-based allocation process has …

The Eye Of The Beholder: Participation And Impact In Telecommunications (De)Regulation, Dorit Reiss

Dorit R. Reiss

The California Public Utilities Commission addressed both pricing deregulation and universal service in telecommunications during the last decade. Both decisions had a similar cast of characters, and similarly elaborate processes. In relation to price deregulation, the utilities positions were accepted on every issue addressed; in relation to universal service, consumer organizations’ positions were accepted in about 60% of the issues. This article tells the story of how those decisions were made, and examines the reasons for the difference in impact. The article examines and reject an explanation of capture; accepts in part a focus on the influence of the commissioner …

Don’T Ask, Don’T Tell: Hollingsworth V. Perry And The Constitutional Right To Same-Sex Marriage – The Court Didn’T Tell By Denying The People The Right To Ask, Matthew A. Melone, George A. Nation Iii

Matthew A. Melone

No abstract provided.

Feminist Legal Theory As A Way To Explain The Lack Of Progress Of Women’S Rights In Afghanistan: The Need For A State Strength Approach, Isaac Kfir

Isaac Kfir

Cultural and religious practices are critical to explaining Afghanistan’s dreadful reputation concerning the preservation, protection, and promotion of women’s rights. Those advocating misogynistic practices assert that the calls for reforms challenge their religion and culture. Additionally, they also argue that women’s issues exist within the private realm. Accordingly, they assert that such reforms are not vital to the state and go beyond the established limits of state authority. Building on feminist legal theory, which distinguishes between the public and private spheres, I argue in Afghanistan misogynistic and discriminatory practices stem from contrived cultural and religious norms. Using the notion of …

The Evolution Of The Digital Millennium Copyright Act; Changing Interpretations Of The Dmca And Future Implications For Copyright Holders, Hillary A. Henderson

Hillary A Henderson

Copyright law rewards an artificial monopoly to individual authors for their creations. This reward is based on the belief that, by granting authors the exclusive right to reproduce their works, they receive an incentive and means to create, which in turn advances the welfare of the general public by “promoting the progress of science and useful arts.” Copyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or …

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

The Criminalization Of Consensual Adult Sex After Lawrence, Richard Broughton

Richard Broughton

Ten years after the Supreme Court’s supposedly momentous decision in Lawrence v. Texas, the case still confounds not merely constitutional law, but the criminal law of sex, as well. This Article seeks to advance the literature on both Lawrence and the criminal law by examining Lawrence’s impact upon sex crimes that involve consensual, private, non-prostitution conduct between adults. It positions Lawrence as a relatively conservative opinion as to sex crimes generally, especially in light of the “Exclusions Paragraph” on page 578 of the Court’s opinion. Still, Lawrence (albeit ambiguously) must protect some form of private, consensual, non-prostitution adult sexuality beyond …

American Hustle: Abscam, Entrapment And The Senate Expulsion Trial Of Harrison Williams, Henry P. Biggs Phd

Henry P Biggs PhD

American Hustle: Abscam, Entrapment and The Senate Expulsion Trial of Harrison Williams

The recent success of the film American Hustle has renewed curiosity in the events surrounding the Abscam scandal and its subsequent trials. This article begins by detailing the Abscam proposition as well as its players, moving on to address the contours of the defense of entrapment those accused frequently invoked. The article then focuses on the analyses of specific Abscam cases that claimed this defense. Finally, the article considers the specific case of Harrison Williams, a senator from New Jersey and the highest official ensnared in Abscam, documenting …

The Life And Times Of Targeted Killing, Markus Gunneflo

Markus Gunneflo

Against the background of the ongoing shift in the perception of the legality and legitimacy of extraterritorial lethal force in counterterrorism, my doctoral thesis analyses the emergence of so-called “targeted killing” in the history of Israel and the US, as well as in international law. It finds that the relationship between targeted killing and law, particularly international law, is not a straightforward case of more or less determinate and legally binding norms being applied to state measures adopted in situations of insecurity (in this case, those of the second Intifada and 9/11) but rather one of a much longer and …

"Not Without Political Power": Gays And Lesbians, Equal Protection, And The Suspect Class Doctrine, Darren Hutchinson

Darren L Hutchinson

The Supreme Court purportedly utilizes the suspect class doctrine in order to balance institutional concerns with the protection of important constitutional rights. The Court, however, inconsistently applies this doctrine, and it has not precisely defined its contours. The political powerlessness factor is especially undertheorized and contradictorily applied. Nevertheless, this factor has become salient in recent equal protection cases brought by gay and lesbian plaintiffs.

A growing body of and federal and state-court precedent addresses the flaws of the Court’s suspect class doctrine. This Article discusses the inadequacies of the suspect class doctrine and highlights problems within the emerging scholarship and …