Law Commons^™

The Senate Filibuster: The Politics Of Destruction, Emmet J. Bondurant

Emmet J Bondurant

The notion that the Framers of the Constitution intended to allow a minority in the U.S. Senate to exercise a veto power over legislation and presidential appointments is not only profoundly undemocratic, it is also a myth. The overwhelming trend of law review articles have assumed that because the Constitution grants to each house the power to make its own rules, the Senate filibuster rule is immune from constitutional attack. This Article takes an opposite position based on the often overlooked history of the filibuster, the text of the Constitution and the relevant court precedents which demonstrate that the constitutionality …

A Race By Any Other Name: The Interplay Between Ethnicity, National Origin And Race For Purposes Of Section 1981, Eileen R. Kaufman

Eileen Kaufman

No abstract provided.

Impeachment And Assassination, Josh Chafetz

Cornell Law Faculty Publications

In 1998, the conservative provocateur Ann Coulter made waves when she wrote that President Clinton should be either impeached or assassinated. Coulter was roundly - and rightly - condemned for suggesting that the murder of the President might be justified, but her conceptual linking of presidential impeachment and assassination was not entirely unfounded. Indeed, Benjamin Franklin had made the same linkage over two hundred years earlier, when he noted at the Constitutional Convention that, historically, the removal of “obnoxious” chief executives had been accomplished by assassination. Franklin suggested that a proceduralized mechanism for removal - impeachment - would be preferable. …

Judges Playing Jury: Constitutional Conflicts In Deciding Fair Use On Summary Judgment, Ned Snow

Faculty Publications

Issues of fair use in copyright cases are usually decided at summary judgment. But it was not always so. For well over a century, juries routinely decided these issues. The law recognized that fair use issues were highly subjective and thereby inherently factual — unfit for summary disposition by a judge. Today, however, all this has been forgotten. Judges are characterizing factual issues as purely legal so that fair use may be decided at summary judgment. Even while judges acknowledge that reasonable minds may disagree on these issues, they characterize the issues as legal, preventing them from ever reaching a …

The Estate Planning Perils Of 2010 And Beyond, Brett T. Bradford

Brett T. Bradford

This paper explores the confusion surrounding the repeal of the federal estate tax for the year 2010. The Economic Growth Tax Relief Reconciliation Act gradually scaled down the federal estate tax and eventually repealed the tax in 2010. The Act has a sunset provision that would return the tax to a much higher rate than has been seen in recent times. This paper explores the history, intent and purpose of federal estate taxes; the intent and purpose behind the repeal in EGTRAA; and what attempts congress has made to fix the mess.

Death Of The Challenge To Lethal Injection - Missouri's Protocol Deemed Constitutional Yet Again, Tanya M. Maerz

Missouri Law Review

Lethal injection is currently the predominant form of execution nationwide. Most proponents of this method cite the convenience and the humanity of this procedure over past methods of execution. However, lethal injections are fraught with problems such as the specificity and safety of the written procedures themselves, implementation of such procedures, and whether lethal injection and executions in general are constitutional. Most often, prisoners file constitutional challenges to lethal injections under the Eighth Amendment, which prevents imposing cruel and unusual punishment on an American citizen. One of the more recent cases in Missouri cited such a challenge to the implementation …

Constitutional Interpretation Through A Global Lens, Rex D. Glensy

Missouri Law Review

This Article seeks to clarify the current debate concerning the use of non-U.S. persuasive authority within the context of constitutional interpretation. It begins by noting that commentary on comparative constitutional law often fails to make any distinction between foreign domestic sources and international law used comparatively, and thus risks evoking parallels between different systems of law that lack context and plausibility. It then draws on various normative theories and underpinnings of both domestic and international legal regimes to show that a proper comparative enterprise must take this distinction into account. The Article concludes by explaining that only when those policy …

Strict In Theory, But Accommodating In Fact, Ozan O. Varol

Missouri Law Review

As law students quickly learn, the strict-scrutiny test governs challenges under the Equal Protection Clause to the government's use of suspect classifications and infringement on certain fundamental rights. To survive strict scrutiny, the government bears the heavy burden of showing a compelling interest in drawing a suspect classification or infringing on a fundamental right and narrowly tailored means to achieve that interest. Over the years, strict scrutiny has expanded to serve as a bulwark against government intrusions on many fundamental rights and liberties in the United States Constitution - including the right to vote, marry, access the courts, and freedom …

One New President, One New Patriarch And A Generous Disregard For The Constitution: A Recipe For The Continuing Decline Of Secular Russia, Robert C. Blitt

Scholarly Works

The government of Russia and the Russian Orthodox Church (ROC) - the country’s predominant religious group - recently underwent back-to-back changes in each institution’s respective leadership. This coincidence of timing affords a unique opportunity to reassess the status of constitutional secularism and church–state relations in the Russian Federation.

Following a discussion of the presidential and patriarchal elections that occurred between March 2008 and January 2009, the Article surveys recent developments in Russia as they relate to the nation’s constitutional obligations. In the face of this analysis, the Article argues that the government and the ROC alike continue to willfully undermine …

Iftikhar Chaudhry’S Options: Can The Courts Remake Pakistani Democracy?, Shubhankar Dam

Research Collection Yong Pung How School Of Law

No abstract provided.

Commerce In The Commerce Clause: A Response To Jack Balkin, Robert G. Natelson

Michigan Law Review First Impressions

The Constitution's original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island's ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin's article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution's Commerce Clause a scope that virtually no one in the Founding Era believed it had.

La Libertad De Expresión En Internet Y Sus Garantías Constitucionales En El Control De Contenidos De Páginas Web, Germán M. Teruel Lozano

Germán M. Teruel Lozano

Master's thesis about freedom of speech in Internet and the constitutional guarantees in the control of websides content.

The Bible And The Constitution, Brad Jacob

Robert Weston Ash

ABSTRACT

The Bible and the Constitution Prof. Bradley P. Jacob

Is the United States Constitution consistent with the Holy Bible? For many people today, and especially for most lawyers, legal scholars and judges, the question is both irrelevant and silly. Their answer would be a simple, “Who cares?”

Yet there are some – Christian judges, lawyers and legal scholars – for whom the question matters a great deal. It matters to anyone who follows the tradition of Thomas Aquinas, William Blackstone, and Martin Luther King, Jr., in holding that a human law that violates God’s eternal principles of justice is …

Excuse Me, Sir, Can You Spare Some Certiorari? Why Downtown “No Panhandling” Zones Are Constitutionally Suspect, Noah J. Kores

Noah J Kores

Panhandlers are becoming increasingly prevalent in urban areas across the United States. Many cities have taken action to regulate where, when, and how panhandling may be performed. One particular trend raises many First Amendment questions: downtown panhandling bans. As panhandling is a form of free speech, the question is whether downtown bans go too far.

Under the First Amendment, many downtown bans fail both intermediate and strict scrutiny. Specifically, St. Petersburg, Florida’s ordinance fails because it places content-based restrictions on speech -- meaning it restricts speech based on what an individual is attempting to say. Panhandling bans are content-based because …

Role Of Individuals Discrimination In Free Exercise Claims: Putting Iqbal In Its Place, The, Leila Mcneill

Missouri Law Review

Ashcroft v. Iqbal has been widely discussed for three reasons: (1) its extension of Twombly's pleading standard to cases outside the realm of antitrust suits, (2) its application of the collateral order doctrine to a district court order denying an official's motion to dismiss on the basis of qualified immunity in a Bivens claim, and (3) its implication for national security and postSeptember 11th terrorist detainments and investigations. However, Iqbal also implicates the nature of what constitutes unconstitutional religious discrimination under the First Amendment's Free Exercise Clause. Therefore, the Iqbal Court's discussion of religious liberty will present problems of interpretation …

Northern Ireland And The Irish Constitution: Pragmatism Or Principle?:The Mcgimpsey Case, Rory Mcgimpsey

Dissertations

The central theme of my thesis concerns the case of McGimpsey v. Ireland [1990] I.R. 110 and its wider significance. All discussion in the thesis can be traced back to this seminal case. On a wider level, the thesis discusses Articles 2 and 3 of the Constitution, tracing their history from their ideologically irredentist origins through to their amendment following the Good Friday Agreement, with its pluralist, inclusive re-definition of nationality. In essence, the thesis attempts to analyse the relationship between the two jurisdictions in Ireland, and how it evolved over time. I have endeavoured to explain how the 1937 …

Rethinking Immigration Detention, Anil Kalhan

Anil Kalhan

In recent years, scholars have drawn attention to the myriad ways in which the lines between criminal enforcement and immigration control have blurred in law and public discourse. This essay analyzes this convergence in the context of immigration detention. For decades, courts and observers have documented and analyzed a wide range of detention-related concerns, including mandatory and presumed custody, coercion and other due process violations, inadequate access to counsel, prolonged and indefinite custody, inadequate conditions of confinement, and violations of international law obligations. With the number of detainees skyrocketing since the 1990s, these concerns have rapidly proliferated - to the …

Constitutional Protection Of Freedom Of Expression In The United States As It Affects Defamation Law, Oscar Gray

Oscar S. Gray

No abstract provided.

Changing The Rules Of The Game: Deriving New Rules And Practices From Caperton V. A.T. Massey Coal Co., Aman L. Mcleod

Aman L McLeod

In 2009, the United States Supreme Court decided the case of Caperton v. A.T. Massey Coal Co., in which it ruled that judges must recuse themselves in cases involving those who have provided a disproportionate amount of financial support to their campaigns. This decision has forced states to reconsider their campaign finance laws and their judicial recusal rules. This article proposes practical and modest reforms that states could adopt that would effectively respond to the Caperton decision.

Is The Filibuster Constitutional?, Josh Chafetz, Michael J. Gerhardt

Cornell Law Faculty Publications

With the help of the President, Democrats in Congress were able to pass historic healthcare-reform legislation in spite of - and thanks to - the significant structural obstacles presented by the Senate’s arcane parliamentary rules. After the passage of the bill, the current political climate appears to require sixty votes for the passage of any major legislation, a practice which many argue is unsustainable.

In this Debate, Professors Josh Chafetz and Michael Gerhardt debate the constitutionality of the Senate’s cloture rules by looking to the history of those rules in the United States and elsewhere. Professor Chafetz argues that the …

Rewriting The Guarantee Clause: Justifying Direct Democracy In The Constitution, Kevin M. Wagner

Kevin M Wagner

Using the shifting meaning of the Guarantee Clause, this paper illustrates how the judiciary subtly redefines the meaning of the Constitution to meet the demands of a dynamic society allowing shifts to occur gradually in the governing structure. Government structure and authority, despite being based on a fixed written constitution, has changed and evolved based on the application of various stimuli such as social or technological change, or shifting demographics. The Guarantee Clause began as a largely anti-majoritarian provision intended to limit the influence of popular opinion in state governance. Over time, stimuli generated by events, such as the Industrial …

Constitutionalism: A Skeptical View, Jeremy Waldron

Philip A. Hart Memorial Lecture

On March 17, 2010, Professor Waldron, University Professor and Professor of Law at New York University, Chichele Chair of Social and Political Theory at All Souls College, Oxford delivered the Georgetown Law Center’s thirtith annual Philip A. Hart Lecture: “ Constitutionalism: A Skeptical View.”

Professor Waldron teaches legal and political philosophy at New York University School of Law. He was previously University Professor in the School of Law at Columbia University. He holds his NYU position conjointly with his position as Chichele Professor of Social and Political Theory at the University of Oxford (All Souls College). For 2011-2013, he is …

Exposing The Underground Establishment Clause In The Supreme Court’S Abortion Cases, Justin S. Murray

Justin S Murray

In Roe v. Wade, the Supreme Court held that women have a right to abortion under the Due Process Clause of the Fourteenth Amendment. The Court reasoned toward this conclusion by importing concepts and concerns that are ordinarily associated with the Establishment Clause. This Article is the first attempt to systematically describe, and critically evaluate, the Court’s use of Establishment-Clause ideas in Roe and later abortion cases.

Some brief background is essential in order to see how the Court wove Establishment-Clause themes into the structure of its Due-Process analysis. The Due Process Clause allows the government to restrict fundamental constitutional …

Exposing The Underground Establishment Clause In The Supreme Court’S Abortion Cases, Justin S. Murray

Justin S Murray

In Roe v. Wade, the Supreme Court held that women have a right to abortion under the Due Process Clause of the Fourteenth Amendment. The Court reasoned toward this conclusion by importing concepts and concerns that are ordinarily associated with the Establishment Clause. This Article is the first attempt to systematically describe, and critically evaluate, the Court’s use of Establishment-Clause ideas in Roe and later abortion cases.

Some brief background is essential in order to see how the Court wove Establishment-Clause themes into the structure of its Due-Process analysis. The Due Process Clause allows the government to restrict fundamental constitutional …

Cyberspace Is Outside The Schoolhouse Gate: Offensive Online Student Speech Receives First Amendment Protection, Joseph Tomain

Joseph A Tomain

Doctrinal and normative analysis show that schools do not possess jurisdiction over offensive online student speech, at least when it does not cause a substantial disruption of the school environment. This article is a timely analysis on the limits of school jurisdiction over offensive online student speech.

On February 4, 2010, two different Third Circuit panels issued opinions reaching opposite conclusions on whether schools may punish students based on online speech created by students when they are off-campus; one of these cases may be heard en banc. Another case addressing this same issue is currently pending before the Second Circuit. …

From Immutable To Existential: Protecting Who We Are And Who We Want To Be With The 'Equalerty' Of The Substantive Due Process Clause, Aaron J. Shuler

Aaron J Shuler

Abstract Scholars have written about the duality of the substantive due process and equal protection doctrines and described how they have worked in tandem, although many academics have focused on, or outright called for, a preference for the use of the equal protection clause. Another contingent of the academic community, however, has discussed the favored use of substantive due process in the last fifty years in providing equal treatment for all groups by ferreting out discrimination against marginalized minorities. Scholars have also separately alluded to substantive due process’ ability to protect the most existential of liberties. This works seeks to …

Essay: The Quran And The Constitution, Ali Khan

Ali Khan

The Quran and the constitution are mutually supportive supreme texts; one does not negate the other. Numerous forms of government, cultural traditions, and economic systems are compatible with both supreme texts. Muslim nations are free to promulgate specific constitutions that reflect their social, political, and economic preferences rooted in history and culture. The specific constitution must reflect the conscience of the nation, for constitutions that fail to do so are vulnerable to amendment, even revolutionary replacement. Because the human condition is constantly evolving, the Quran, though a permanent divine text immune to alteration or amendment, is amenable to the evolutionary …

Congress' Power Is Properly Vested, Alan E. Garfield

Alan E Garfield

No abstract provided.

The Puzzle Of Hamilton's Federalist No. 77, Seth Barrett Tillman

Seth Barrett Tillman

The Founders, the authors of the Constitution of 1787, much like you and me, were flesh-and-blood human beings. As a result, we expect to find errors and exaggeration in their written works. There is nothing new about that insight. But one alleged error has always struck me as somewhat different from other alleged errors. I am speaking of Hamilton’s 1788 publication: The Federalist No. 77. There he wrote:

IT HAS BEEN MENTIONED as one of the advantages to be expected from the co-operation of the Senate, in the business of appointments, that it would contribute to the stability of the …

Conditional Spending And Compulsory Maternity, Nicole Huberfeld

Law Faculty Scholarly Articles

More than forty-six million Americans are uninsured, and many more are seeking government assistance, which makes congressional spending for federal programs a significant issue. Federal funding often comes with prerequisites in the form of statutory conditions. This Article examines the impact that conditions placed on federal healthcare spending have on the individuals who rely on that spending by exploring the ongoing disconnect between Spending Clause jurisprudence and women's reproductive rights. The first Part reviews the foundational Supreme Court precedents and places them in context from both a statutory and theoretical perspective. The second Part studies what the author denominates "pure …