Law Commons^™

The Fourth Amendment, Ethan Payne

A with Honors Projects

This projects explains the fourth amendment using skits and a PowerPoint presentation.

Constructing The Other: U.S. Muslims, Anti-Sharia Law, And The Constitutional Consequences Of Volatile Intercultural Rhetoric, Carlo A. Pedrioli

Faculty Scholarship

Recently, legislators have proposed, discussed, and passed various laws that aimed to limit the use of foreign law, international law, and Sharia (a branch of Islamic law) in state court systems. Because it became law, one proposed state constitutional amendment that rhetorically linked Sharia to foreign and international law is of particular note. In the 2010 midterm elections, Oklahoma passed State Question 755 (SQ 755), a constitutional amendment that aimed to place restrictions on the use of foreign law, international law, and Sharia in Oklahoma courts. Laws like Oklahoma’s State Question 755 are problematic for a variety of reasons. One …

Comparative Law And International Human Rights Law: Non-Retroactivity And Lex Certa In Criminal Law, Kenneth S. Gallant

Faculty Scholarship

No abstract provided.

Charter Without Borders? The Supreme Court Of Canada, Transnational Crime And Constitutional Rights And Freedoms, Robert Currie

Articles, Book Chapters, & Popular Press

The first decades of the Supreme Court of Canada's Charter jurisprudence have coincided roughly with an increase in the extent to which Canada is affected by transnational crime and the nation's consequential participation in inter-state efforts to combat it. The court itself has remarked on its discrete "jurisprudence on matters involving Canada's international co-operation in criminal investigations and prosecutions." This article examines the Court's adoption of a different approach to Charter analysis in cases involving transnational elements and surveys where the Court has "drawn the line" in terms of Charter application. By way of analyzing jurisprudence on exclusion of evidence …

Unconstitutional Conditions: The Irrelevance Of Consent, Philip A. Hamburger

Faculty Scholarship

Unconstitutional conditions are a conundrum. On the one hand, if government can spend, why can't it place whatever conditions it wants on its spending? On the other hand, if it can place any conditions on spending, won't it be able to impose restrictions that evade much of the Constitution, including most constitutional rights? This enigma is notoriously complex, and unconstitutional conditions therefore are considered a sort of Gordian knot.

The standard solution is to slice through the knot with consent to conclude that consent excuses otherwise unconstitutional restrictions. This solution, however, is problematic, for it concedes that the government can …

Nullifying The Debt Ceiling Threat Once And For All: Why The President Should Embrace The Least Unconstitutional Option, Neil H. Buchanan, Michael C. Dorf

GW Law Faculty Publications & Other Works

In August 2011, Congress and the President narrowly averted economic and political catastrophe, agreeing at the last possible moment to authorize a series of increases in the national debt ceiling. This respite, unfortunately, was merely temporary. The amounts of the increases in the debt ceiling that Congress authorized in 2011 were only sufficient to accommodate the additional borrowing that would be necessary through the end of 2012. In an economy that continued to show chronic weakness -- weakness that continues to this day -- the federal government would pre-dictably continue to collect lower-than-normal tax revenues and to make higher-than-normal expenditures, …

The Originalist Case Against Congressional Supermajority Voting Rules, Dan T. Coenen

Scholarly Works

Controversy over the Senate’s filibuster practice dominates modern discussion of American legislative government. With increasing frequency, commentators have urged that the upper chamber’s requirement of sixty votes to close debate on pending matters violates a majority-rulebased norm of constitutional law. Proponents of this view, however, tend to gloss over a more basic question: Does the Constitution’s Rules of Proceedings Clause permit the houses of Congress to adopt internal parliamentary requirements under which a bill is deemed “passed” only if it receives supermajority support? This question is important. Indeed, the House already has such a rule in place, and any challenge …

Habeas Corpus, Protection, And Extraterritorial Constitutional Rights, Andrew Kent

Faculty Scholarship

This short essay is an exchange with Professor Steve Vladeck's about my Article entitled: Boumediene, Munaf, and the Supreme Court’s Misreading of the Insular Cases, 97 Iowa Law Review 101 (2011). My Article showed that the Supreme Court’s landmark ruling in Boumediene v. Bush relied on a demonstrably incorrect understanding of key precedents known as the Insular Cases, which arose from actions of the United States military and the new civil governments of the islands acquired by the United States at the turn of the twentieth century — Puerto Rico, the Philippines, Hawaii, and for a time Cuba. This reply …

Constitutional Forbearance, A. Christopher Bryant

Faculty Articles and Other Publications

This essay begins by developing the concept of constitutional forbearance and exploring the role it plays in the craft of good judging. This first Part also illustrates what is meant by constitutional forbearance by recovering a forgotten but illustrative example from a century ago. Part II then argues that the need for forbearance has at present become unusually acute. Finally, in Part III this essay identifies some of the qualities of the Obama care cases that make them such singular opportunities for the exercise of this much needed judicial virtue and answers some anticipated objections to thinking about the cases …

Saving The Press Clause From Ruin: The Customary Origins Of A 'Free Press' As Interface To The Present And Future, Kevin F. O'Neill, Patrick J. Charles

Law Faculty Articles and Essays

Based on a close reading of original sources dating back to America's early colonial period, this article offers a fresh look at the origins of the Press Clause. Then, applying those historical findings, the article critiques recent scholarship in the field and reassesses the Press Clause jurisprudence of the Supreme Court. Finally, the article describes the likely impact of its historical findings if ever employed by the Court in interpreting the Press Clause.

How To Choose The Least Unconstitutional Option: Lessons For The President (And Others) From The 2011 Debt Ceiling Standoff, Neil H. Buchanan, Michael C. Dorf

GW Law Faculty Publications & Other Works

The current successor to a federal statute first enacted in 1917, and widely known as the “debt ceiling,” limits the face value of money that the United States may borrow. Congress has repeatedly raised the debt ceiling to authorize borrowing to fill the gap between revenue and spending, but in the summer of 2011, a political standoff nearly left the government unable to borrow funds to meet obligations that Congress had affirmed earlier that very year. Some commentators urged President Obama to ignore the debt ceiling and issue new bonds, in order to comply with Section 4 of the Fourteenth …

The Law Of Nations As Constitutional Law, Bradford R. Clark, Anthony J. Bellia Jr.

GW Law Faculty Publications & Other Works

Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …

Depoliticizing Federalism, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

In his great biography of President Andrew Jackson, Arthur Schlesinger, Jr. celebrated Jackson’s defense of the rights of states and opposition to federal power. Yet as a mid-twentieth century liberal, Schlesinger was a strong supporter of the federal government and an opponent of states’ rights. Was Schlesinger’s position inconsistent? He did not think so, and neither does the author. In Jackson’s time, an entrenched economic elite controlled the federal government and used federal power to dominate the lower classes. State governments served as a focal point for opposition to this domination. By mid-twentieth century, the federal government was an engine …

With Child, Without Rights?: Restoring A Pregnant Woman's Right To Refuse Medical Treatment Through The Hiv Lens, Michael Ulrich

Faculty Scholarship

In Doe v. Division of Youth & Family Services , a hospital employee sought state intervention when an HIV-positive woman refused to comply with treatment recommendations during her pregnancy to drastically reduce the chances of mother-to-child-transmission (MTCT), eventually triggering a lawsuit against the hospital. With an increase in the number of HIV-positive women becoming pregnant and the court avoiding constitutional analysis of the woman’s right to refuse medical treatment, there is a clear void where legal analysis is surely needed. This Article fills this void for the inevitable case where an HIV-positive pregnant woman’s right to refuse medical treatment is …

The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark

Journal Articles

Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …

The Education Duty, Scott R. Bauries

Law Faculty Scholarly Articles

A constitution is an instrument of entrustment. By adopting a democratic constitution, a polity places in the hands of its elected representatives its trust that those representatives will act to pursue the ends of the polity, rather than their own ends, and that they will do so with an eye toward the effects of adopted policies. In effect, the polity entrusts lawmaking power to its legislature with the expectation that such power will be exercised with loyalty to the public and with due care for its interests. Simply put, legislatures are fiduciaries.

In this Article, I examine the nature of …

American School Finance Litigation And The Right To Education In South Africa, Scott R. Bauries

Law Faculty Scholarly Articles

This paper addresses the South African Constitution's invitation to the Constitutional Court to 'consider foreign law' when interpreting its provisions. Focusing on the education provisions found in section 29 of the Constitution, I make two claims. Firstly, contrary to the developing consensus, American state supreme court jurisprudence in school funding cases makes a poor resource to aid the interpretation of the basic South African right to education, regardless of the quantum of education that the Constitutional Court decides is encompassed by the word 'basic'. Secondly, however, certain aspects of these same American decisions, particularly the space they provide for a …

Nullifying The Debt Ceiling Threat Once And For All: Why The President Should Embrace The Least Unconstitutional Option, Neil H. Buchanan, Michael C. Dorf

UF Law Faculty Publications

In August 2011, Congress and the President narrowly averted economic and political catastrophe, agreeing at the last possible moment to authorize a series of increases in the national debt ceiling. This respite, unfortunately, was merely temporary. The amounts of the increases in the debt ceiling that Congress authorized in 2011 were only sufficient to accommodate the additional borrowing that would be necessary through the end of 2012. In an economy that continued to show chronic weakness -- weakness that continues to this day -- the federal government would pre-dictably continue to collect lower-than-normal tax revenues and to make higher-than-normal expenditures, …

How The Gun-Free School Zones Act Saved The Individual Mandate, Richard A. Primus

Articles

For all the drama surrounding the Commerce Clause challenge to the in-dividual mandate provision of the Patient Protection and Affordable Care Act (“PPACA”), the doctrinal question presented is simple. Under existing doctrine, the provision is as valid as can be. To be sure, the Supreme Court could alter existing doctrine, and many interesting things could be written about the dynamics that sometimes prompt judges to strike out in new directions under the pressures of cases like this one. But it is not my intention to pursue that possibility here. My own suspicion, for what it is worth, is that the …

The Constitutional Bond In Military Professionalism: A Reply To Professor Deborah N. Pearlstein, Diane H. Mazur

UF Law Faculty Publications

The Soldier, the State, and the Separation of Powers is important and very persuasive. (In this Response, I will call it Separation of Powers to distinguish it clearly from The Soldier and the State,7 the classic work on civil–military relations referenced in the title.) Professor Pearlstein asks the right questions and reaches the right conclusions—no small task when law professors have typically deferred to expertise in other fields, if not avoided the subject entirely.8 What do we mean by civilian control of the military? Where is the line between a military that offers its professional expertise to civilian decision makers …