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Full-Text Articles in Law

Calling Them As He Sees Them: The Disappearance Of Originalism In Justice Thomas's Opinions On Race, Joel K. Goldstein Nov 2014

Calling Them As He Sees Them: The Disappearance Of Originalism In Justice Thomas's Opinions On Race, Joel K. Goldstein

Maryland Law Review

During his first two decades on the Court, Justice Clarence Thomas has been associated with originalism and is often viewed as its leading judicial proponent. Justice Thomas has linked originalism with the effort to limit judicial discretion and to promote judicial impartiality. In cases dealing with many constitutional provisions, Justice Thomas has shown his commitment to originalism by often writing solitary concurrences and dissents advocating an originalist analysis of a problem. Yet in constitutional cases dealing with race, Justice Thomas routinely abandons originalism and embraces the sort of constitutional arguments based on morality or consequentialism that he often discounts. These …


Constitutional Limitations On Sovereignty, 2014 Edition, Garrett Power Jun 2014

Constitutional Limitations On Sovereignty, 2014 Edition, Garrett Power

Book Gallery

This is an “open content” casebook intended for classroom use in courses in Constitutional Law, Land Use Control, and Environmental Law. It consists of 130 odd judicial opinions (most rendered by the U.S. Supreme Court) carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text considers both the personal right to liberty and the personal right in property.

The readings provide an historical context, and an up-to-date focus on many of the constitutional issues facing today’s Supreme Court: imperium versus dominium; the public trust, inverse condemnation, the …


Shelby And The Sisyphean Struggle For Black Enfranchisement, Rick Valelly Feb 2014

Shelby And The Sisyphean Struggle For Black Enfranchisement, Rick Valelly

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No abstract provided.


Super Pac Contributions, Corruption, And The Proxy War Over Coordination, Richard L. Hasen Feb 2014

Super Pac Contributions, Corruption, And The Proxy War Over Coordination, Richard L. Hasen

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No abstract provided.


To End Government Shutdowns, End Partisan Gerrymandering, Sanford Levinson Feb 2014

To End Government Shutdowns, End Partisan Gerrymandering, Sanford Levinson

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No abstract provided.


Race Or Party?: How Courts Should Think About Republican Efforts To Make It Harder To Vote In North Carolina And Elsewhere, Richard L. Hasen Feb 2014

Race Or Party?: How Courts Should Think About Republican Efforts To Make It Harder To Vote In North Carolina And Elsewhere, Richard L. Hasen

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No abstract provided.


Hungary: An Election In Question, Kim Lane Scheppele Feb 2014

Hungary: An Election In Question, Kim Lane Scheppele

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No abstract provided.


The Last Stand: Restricting Voting Rights & Sustaining White Power In Modern America, Desmond S. King, Rogers M. Smith Feb 2014

The Last Stand: Restricting Voting Rights & Sustaining White Power In Modern America, Desmond S. King, Rogers M. Smith

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No abstract provided.


What Became Of Fundamental Rights?: Of Voter Ids And Voting Rights, Carol Nackenoff Feb 2014

What Became Of Fundamental Rights?: Of Voter Ids And Voting Rights, Carol Nackenoff

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No abstract provided.


The Popular Sovereignty Foundations Of The Right To Vote, Franita Tolson Feb 2014

The Popular Sovereignty Foundations Of The Right To Vote, Franita Tolson

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In recent years, courts and commentators have focused on the federalism-based limits on the power of the federal government, with significantly less attention given to similar constraints on state power. It is not surprising, therefore, that both camps have overlooked that the Ninth and Tenth Amendments, with their reservation of both rights and power “to the people” contain a popular sovereignty principle that affects the constitutionality of various state election law regulations. This goal of this Article is to reaffirm that the people are, in essence, part of the federalism equation, and not simply as protectors of state power, but …


Are Elections Necessary?, Sanford Levinson Feb 2014

Are Elections Necessary?, Sanford Levinson

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No abstract provided.


The Roberts-Kennedy Court And Post-Political Democracy, Zephyr Teachout Feb 2014

The Roberts-Kennedy Court And Post-Political Democracy, Zephyr Teachout

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This Essay explores the ideological underpinnings of the modern Supreme Court’s election law decisions, arguing that the Court does not have a strong commitment to federalism or to unfettered debate or to the mistrustful citizen. Instead, the opinions reveal a complacency about corruption and a narrow view of the role of citizens. The Essay is part of a volume on neoliberalism for Law and Contemporary Problems.


Transparent Adjudication: Promoting Democratic Dialogue On Judicial Conceptions Of Politics, Bertrall L. Ross Ii Feb 2014

Transparent Adjudication: Promoting Democratic Dialogue On Judicial Conceptions Of Politics, Bertrall L. Ross Ii

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No abstract provided.


The Idea Of Democracy In The Early Republic, Keith Whittington Feb 2014

The Idea Of Democracy In The Early Republic, Keith Whittington

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No abstract provided.


"Lotteries As An Alternative Selection Method For Representatives", Hélène Landemore Feb 2014

"Lotteries As An Alternative Selection Method For Representatives", Hélène Landemore

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No abstract provided.


Why Campaign Finance Matters, Prithviraj Datta Feb 2014

Why Campaign Finance Matters, Prithviraj Datta

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Due to the combination of a host of factors – among them being the Supreme Court decision in the case of Citizens United v FEC, the not-entirely-unrelated explosion of Super PACs as a political force in electoral politics, and the tremendous increase in the amounts that candidates and parties have been spending in their campaign efforts – the issue of campaign finance has, once again, rise to prominence in scholarly and public debate. Unsurprisingly, given the highly polarized and divisive political environment in which we live, the debate over campaign finance is characterized by a sharp cleavage of opinion …


Compulsory Voting, Howard Schweber Feb 2014

Compulsory Voting, Howard Schweber

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No abstract provided.


Abolish Districts, Corinna Barrett Lain Feb 2014

Abolish Districts, Corinna Barrett Lain

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No abstract provided.


Citizens Derided: Corporate Politics And Religion In The Roberts Court, Jamin Raskin Feb 2014

Citizens Derided: Corporate Politics And Religion In The Roberts Court, Jamin Raskin

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No abstract provided.


Powers And Rights In Shelby County V. Holder, Corey Brettschneider Feb 2014

Powers And Rights In Shelby County V. Holder, Corey Brettschneider

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No abstract provided.


Shelby County V. Holder And Preclearance As Legislative Injunction, Henry L. Chambers Feb 2014

Shelby County V. Holder And Preclearance As Legislative Injunction, Henry L. Chambers

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No abstract provided.


The Problem Of Voter Fraud, Michael D. Gilbert Feb 2014

The Problem Of Voter Fraud, Michael D. Gilbert

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No abstract provided.


American Innovations In Democratic Decision-Making, Leslie Friedman Goldstein Feb 2014

American Innovations In Democratic Decision-Making, Leslie Friedman Goldstein

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No abstract provided.


Toward An Alternative Theory Of Constitutional Design, Emily Zackin, Mila Versteeg Feb 2014

Toward An Alternative Theory Of Constitutional Design, Emily Zackin, Mila Versteeg

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No abstract provided.


Prisoners And Habeas Privileges Under The Fourteenth Amendment, Lee B. Kovarsky Jan 2014

Prisoners And Habeas Privileges Under The Fourteenth Amendment, Lee B. Kovarsky

Faculty Scholarship

The U.S. Reports contain no answer to a million-dollar question: are state prisoners constitutionally entitled to a federal habeas forum? The Supreme Court has consistently ducked the basic constitutional issue, and academic work on the question idles on familiar themes.

The strongest existing argument that state prisoners are constitutionally entitled to a federal habeas forum involves a theory of incorporation under the Fourteenth Amendment’s Due Process Clause. I provide a new and different account: specifically, that the Fourteenth Amendment’s Privileges and Immunities Clause (“PI Clause”) guarantees a habeas privilege as a feature of national citizenship, and that the corresponding habeas …


Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark A. Graber Jan 2014

Belling The Partisan Cats: Preliminary Thoughts On Identifying And Mending A Dysfunctional Constitutional Order, Mark A. Graber

Faculty Scholarship

This paper sharpens debates over whether the Constitution of the United States and the American constitutional order are presently dysfunctional, the nature of any dysfunctions, and how underlying regime flaws are likely to be corrected. Rather than focusing primarily on constitutional text, this Article explores the dynamic ways in which constitutional processes have influenced and been influenced by the structure of constitutional politics. Constitutional dysfunction is best conceptualized as the failure of a constitutional order rather than as a consequence of a flawed constitutional text, and dysfunction typically occurs when a regime is unable to transition from a dysfunctional constitutional …


Beard And Uber-Beard, Mark A. Graber Jan 2014

Beard And Uber-Beard, Mark A. Graber

Faculty Scholarship

No abstract provided.


Woollard V. Gallagher: Normalizing The Fourth Circuit’S Approach To Second Amendment Challenges, William Young Jr. Jan 2014

Woollard V. Gallagher: Normalizing The Fourth Circuit’S Approach To Second Amendment Challenges, William Young Jr.

Maryland Law Review Online

No abstract provided.


In The Debt We Trust: The Unconstitutionality Of Defaulting On American Financial Obligations, And The Political Implications Of Their Perpetual Validity, Zachary K. Ostro Jan 2014

In The Debt We Trust: The Unconstitutionality Of Defaulting On American Financial Obligations, And The Political Implications Of Their Perpetual Validity, Zachary K. Ostro

Student Articles and Papers

Starting in August 2011, America has undergone a series of fiscal and political crises surrounding the threat of defaulting on the national debt and the need to raise the debt ceiling. These crises have caused tremendous stress and irreparable harm to our financial markets and political system, causing a downgrade in United States debt for the first time in history, forcing drastic budget cuts, and contributing to a sixteen-day government shutdown this past October. What is most unfortunate, however, is that all of this was preventable for the simple reason that, as a matter of constitutional law, defaulting on the …


Fouling The First Amendment: Why Colleges Can't, And Shouldn't, Control Student Athletes' Speech On Social Media, Frank D. Lomonte Jan 2014

Fouling The First Amendment: Why Colleges Can't, And Shouldn't, Control Student Athletes' Speech On Social Media, Frank D. Lomonte

Journal of Business & Technology Law

No abstract provided.