Law Commons^™

Why Robert Mueller’S Appointment As Special Counsel Was Unlawful, Gary S. Lawson, Steven Calabresi

Faculty Scholarship

Since 1999, when the independent counsel provisions of the Ethics in Government Act expired, the Department of Justice (“DOJ”) has had in place regulations providing for the appointment of Special Counsels who possess “the full power and independent authority to exercise all investigative and prosecutorial functions of any United States Attorney.” Appointments under these regulations, such as the May 17,2017 appointment of Robert S. Mueller to investigate the Trump campaign, are patently unlawful, for three distinct reasons.

First, all federal offices must be “established by Law,” and there is no statute authorizing such an office in the DOJ. We conduct …

Unconstitutional Or Just Unworkable? The Life And Death Of A Prohibition On Floor-Crossing In Fletcher V The Government Of Manitoba, Andrew Martin

Articles, Book Chapters, & Popular Press

Fletcher v the Government of Manitoba is the first reported challenge to a floor-crossing prohibition under the Canadian Charter of Rights and Freedoms. This case comment begins with the legislative history of the challenged provision and then provides an overview and critique of the reasons in Fletcher. Against this backdrop, it then reflects on the lessons of the case in two respects. The first is the difficulty in translating a policy idea into legislation – specifically, defining the conduct to be prohibited and determining the appropriate deterrent or penalty for breach. The second respect is the government’s role in …

October 27, 2019: The Shooter And The Death Penalty, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Shooter and the Death Penalty“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 22, 2019: What Is The Universe?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What is the Universe?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 14, 2019: Why The Democrats Need To Tap The Brakes On Impeachment, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why the Democrats Need to Tap the Brakes on Impeachment“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 9, 2019: Yom Kippur And The Shootings, Bruce Ledewitz

Hallowed Secularism

Blog post, “Yom Kippur and the Shootings“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 2, 2019: What Are The High Holy Days About?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What are the High Holy Days About?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Introduction: Symposium: Incitement At 100 And 50-And Today-Free Speech And Violence In The Modern World, William Araiza, Joel Gora

Faculty Scholarship

No abstract provided.

Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lynda L. Butler

Faculty Publications

This article examines the confusion surrounding constitutional protection of property under the substantive due process and takings clauses, using Murr as a springboard for reconsidering the substantive due process/takings distinction and asking whether the regulatory takings doctrine should remain a viable constitutional concept despite its muddled principles. While powerful reasons support treating as compensable economic regulations that are functionally equivalent to physical takings, important differences between physical and regulatory takings need to be recognized as limits to the degree of equivalence possible and therefore to the regulatory takings doctrine. A look back at the evolutionary paths of substantive due process, …

Out Of The Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained, A. Benjamin Spencer

Faculty Publications

Since the Supreme Court's decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, litigants and lower courts have wrestled with the issue of whether a federal court must be able to exercise personal jurisdiction with respect to each of the claims asserted by absent class members in a class action and, if so, what standard governs that jurisdictional determination. This issue is rapidly coming to a head and is poised for inevitable resolution by the Supreme Court in the near future; multiple circuit courts have heard appeals from district courts that have reached varying conclusions on …

Contemporary Constitution Making In The Asia Pacific, De Maartje Visser, Ngoc Son Bui

Research Collection Yong Pung How School Of Law

This issue features a curated set of contextualized case studies that interrogate how six Asian countries have calibrated global imperatives with domestic desires and concerns during the drafting of their latest constitution. Read together, the accounts demonstrate that the impact of globalization on what has long been thought of as a quintessential exercise of national sovereignty is ubiquitous, yet that the precise combination of the global and the local is unique to each country, determined as it is by the strength of domestic interests and factions. Taking contextualized functionalism as its premise, this introduction sketches the contours of an analytical …

Constitutional Judges As Agents For Development, Maartje De Visser

Research Collection Yong Pung How School Of Law

This Article explores how constitutional judges can become agents for development and how they may wish to go about performing this role. Due to the high politico-economic stakes involved and the inevitability of trade-offs between competing interests, judicial review of developmental questions is liable to expose judges to negative fall-outs. At the same time, it is fairly common for Asian constitutions to expressly set out the parameters or objectives for economic development that the State is expected to realize, while simultaneously recognizing a suite of (socio-)economic rights, thereby providing textual ammunition to query the validity of a government’s chosen implementation …

The Constitutionalisation Of Development, Maartje De Visser

Research Collection Yong Pung How School Of Law

There is a steadily growing interest among academics and policymakers alike in the role of constitutional law in fostering socio-economic development. This attention ties in, at a practical level, with the latest wave of law and development thinking, which conceives of rule-of-law institutions and democracy as existing in a symbiotic relationship with economic growth that together will propel countries to achieve higher levels of foreign investment and overall prosperity. The idea that public law, and the constitution more specifically, has potential in spurring development has for instance found expression across a range of the Sustainable Development Goals formulated under the …

Even Some International Law Is Local: Implementation Of Treaties Through Subnational Mechanisms, Charlotte Ku, William H. Henning, David P. Stewart, Paul F. Diehl

Faculty Scholarship

Multilateral treaties today rarely touch on subjects where there is no domestic law in the United States, In the U.S. federal system, this domestic law may not be national law, but law of the constituent States of the United States. However, in light of the U.S. Constitution Article VI, treaties in their domestic application unavoidably federalize the subjects they address. The most sensitive issues arise when a treaty focuses on matters primarily or exclusively dealt with in the United States at the State or local level. Although U.S. practice allows for some flexibility to accommodate State/local interests, the federal government …

The State Of Exactions, Timothy M. Mulvaney

Faculty Scholarship

In Koontz v. St. Johns River Water Management District, the Supreme Court slightly expanded the range of circumstances involving conditional land use permits in which heightened judicial scrutiny is appropriate in a constitutional “exaction” takings case. In crafting a vision of regulators as strategic extortionists of private property interests, though, Koontz prompted many takings observers to predict that the case would provide momentum for a more significant expansion of such scrutiny in takings cases involving land use permit conditions moving forward, and perhaps even an extension into other regulatory contexts, as well.

Five years on, this Article evaluates the extent …

'Great Variety Of Relevant Conditions, Political, Social And Economic': The Constitutionality Of Congressional Deadlines On Amendment Proposals Under Article V, Danaya C. Wright

UF Law Faculty Publications

Within a year or two, the thirty-eighth state is likely to ratify the Equal Rights Amendment (ERA), setting up an unprecedented constitutional challenge. The ERA was proposed with a seven-year deadline in the resolving clause, establishing the mode of ratification. That was a shift from earlier precedents in which a deadline had been placed in the text of the amendment proposal itself. Article V is annoyingly silent on the issue of congressional deadlines in amendment proposals, and the Supreme Court has never addressed the issue of a deadline that could void an otherwise properly ratified amendment. The practice of placing …

Review Of Ian Kerr And Jane Bailey, The Implications Of Digital Rights Management For Privacy And Freedom Of Expression, 2 Journal Of Information, Communication & Ethics In Society 87 (2004), Ann Bartow

Law Faculty Scholarship

Ian Kerr, who passed away far too young in 2019, was an incisive scholar and a much treasured colleague. The wit that sparkled in his papers was matched only by his warmth toward his friends, of whom there were many. He and his many co-authors wrote with deep insight and an equally deep humanity about copyright, artificial intelligence, privacy, torts, and much much more.

Ian was also a valued contributor to the Jotwell Technology Law section. His reviews here display the same playful generosity that characterized everything else he did. In tribute to his memory, we are publishing a memorial …

September 22, 2019: Bends Toward Justice Podcast--Where You Can Hear It Now, Bruce Ledewitz

Hallowed Secularism

Blog post, “Bends Toward Justice Podcast--Where You Can Hear It Now“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

September 22, 2019: Nihilism In The Heartland, Bruce Ledewitz

Hallowed Secularism

Blog post, “Nihilism in the Heartland“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

September 14, 2019: Constitution Day 2019, Bruce Ledewitz

Hallowed Secularism

Blog post, “Constitution Day 2019“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Section 7: Constitutional Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Beyond Constitutional Frontiers: Tribal Rights, Resources, And Reform, Monte Mills

Faculty Journal Articles & Other Writings

The current era arguably poses the most complex and challenging environmental dilemmas in human history. With climate change, increasingly scarce resources, and exponentially expanding demand, traditional legal notions of standing, harm, and liability are being stretched and reshaped to accommodate a shifting set of values regarding natural resources and potentially respond to the moment. While these novel and innovative approaches are modestly reshaping the fields of natural resources and environmental law, however, the historical and time-honored claims of Indian tribes are also presenting avenues for rethinking the foundations of those areas of law. Arising both within and outside of the …

September 12, 2019: Bends Toward Justice Podcast Debuts This Week, Bruce Ledewitz

Hallowed Secularism

Blog post, “Bends Toward Justice Podcast Debuts This Week“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

Cameron V. Eighth Judicial Dist. Court In & For Cty. Of Clark, 135 Nev. Adv. Op. 28, 445 P.3d 843, Manuel Gurule

Nevada Supreme Court Summaries

Timmie Cameron filed a writ of mandamus challenging the district court’s ruling to increase both his bail from $25,000 to $100,000 and his level of monitoring from mid-level electronic monitoring to house arrest.The Court ruled the district court did not establish a good cause to warrant the bail increase and writ relief was granted.

(In Re Guardianship Of Carmen Wittler) Wittler V. Wittler, 135 Nev. Adv. Op. 31 (Aug. 01, 2019), Mckay Holley

Nevada Supreme Court Summaries

No abstract provided.

U.S. Bank Nat’L Ass’N Nd Vs. Resources Grp., Llc, 135 Nev. Adv. Op. 26 (July 3, 2019), Christopher Gonzalez

Nevada Supreme Court Summaries

The Court determined that (1) previous case law and the NRS require an HOA that is seeking to foreclose a superpriority lien to send the holder of a recorded first deed of trust a notice of default and notice of sale, even when they have not been formally requested. Additionally, they held that (2) the district court would have to decide questions of fact to determine whether Resources Group was a bona fide purchaser.

The Venue Shuffle: Forum Selection Clauses & Erisa, Christine P. Bartholomew, James A. Wooten

Journal Articles

Forum selection clauses are ubiquitous. Historically, the judiciary was hostile to contracts limiting a plaintiff’s venue options. The tide has since turned. Today, lower courts routinely enforce such clauses. This Article challenges this reflexive response in the special context of ERISA cases. It mines ERISA’s statutory text, rich legislative history, and historical context to supply an in-depth exploration of ERISA’s unique policy goal of providing employees “ready access to the Federal courts.” The Article then explains how forum selection clauses undermine this goal and thus should be invalid under controlling Supreme Court jurisprudence.

Azucena V. State Of Nevada, 135 Nev. Ad. Op. (Sep. 5, 2019), Mia Mallette

Nevada Supreme Court Summaries

The Court determined that the trial judge’s actions during jury selection rose to the level of judicial misconduct in response to a prospective juror indicating she could not be unbiased. These actions could have impeded Azucena’s right to a fair trial with an impartial jury as the court feared that the potential jurors would not have been able to answer candidly about any biases they may have had.

Andersen V. Eighth Judicial Dist. Court, 135 Nev. Adv. Op. 42 (Sept. 12, 2019) (En Banc), Erika Smolyar

Nevada Supreme Court Summaries

In light of recent statutes limiting the right to bear arms for people convicted of misdemeanor battery constituting domestic violence, the Court determined that because the Legislature reclassified misdemeanor battery in that context to constitute a serious offense, those convicted of it are entitled to a jury trial.