Law Commons^™

Revoking Rights, Craig J. Konnoth

Publications

In important areas of law, such as the vested rights doctrine, and in several important cases--including those involving the continued validity of same-sex marriages and the Affordable Care Act--courts have scrutinized the revocation of rights once granted more closely than the failure to provide the rights in the first place. This project claims that in so doing, courts seek to preserve important constitutional interests. On the one hand, based on our understanding of rights possession, rights revocation implicates autonomy interests of the rights holder to a greater degree than a failure to afford rights at the outset. On the other …

Countersupermajoritarianism, Frederic Bloom, Nelson Tebbe

Publications

How should the Constitution change? In Originalism and the Good Constitution, John McGinnis and Michael Rappaport argue that it ought to change in only one way: through the formal mechanisms set out in the Constitution’s own Article V. This is so, they claim, because provisions adopted by supermajority vote are more likely to be substantively good. The original Constitution was ratified in just that way, they say, and subsequent changes should be implemented similarly. McGinnis and Rappaport also contend that this substantive goodness is preserved best by a mode of originalist interpretation. In this Review, we press two main arguments. …

The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman

Faculty Publications

No abstract provided.

Article Ix: The Promise And Limits Of Home Rule, Richard Briffault

Faculty Scholarship

Article IX of New York State’s constitution establishes the basic constitutional framework for addressing questions of local power, local government organization, and state-local and interlocal relations in the Empire State. Premised on a commitment to “[e]ffective local self-government,” the “home rule amendment” added to the state constitution in 1963 and unamended since then, has bolstered local control over local government organization and personnel and has provided a firmer foundation for local law-making in New York. But it has not succeeded in enabling New York’s local units – its counties, cities, towns and villages – to function as efficient, effective, locally …

A Tradition At War With Itself: A Reply To Professor Rana's Review Of America's Forgotten Constitutions: Defiant Visions Of Power And Community, Robert Tsai

Scholarly Articles in Law Reviews & Journals

This essay responds to Professor Aziz Rana's review essay, "The Many American Constitutions," 93 Texas Law Review 1193 (2015).

He contends: (1) my portrayal of American constitutionalism might contain a “hidden” teleological understanding of the development of constitutional law; (2) my notion of "conventional sovereignty" sometimes seems content-free and at other times "interlinked with liberal egalitarianism"; and (3) a focus on failed constitutions "inadvertently tends to compartmentalize the overall tradition."

I answer in the following ways: (1) I reject any sense that constitutional law has moved in an arc of steady progress toward Enlightenment and instead embrace a tradition of …

State Labs Of Federalism And Law Enforcement 'Drone' Use, Chris Jenks

Faculty Journal Articles and Book Chapters

This article reviews and assesses current state legislation regulating law enforcement use of unmanned aerial systems (UAS). The legislation runs the gamut of permissive to restrictive and even utilizes different terms for the same object of regulation, UAS. These laws are the confused and at times even contradictory extension of societal views about UAS. The article reviews the U.S. Supreme Court’s manned aircraft trilogy of cases, California v. Ciraolo, Florida v. Riley, and Dow Chemical v. U.S. and two significant technology based decisions, Kyllo v. U.S. and U.S. v. Jones, and applies them to current state efforts to regulate law …

Outsourcing, Data Insourcing, And The Irrelevant Constitution, Kimberly N. Brown

Georgia Law Review

Long before revelations of the National Security Agency's data collection programs grabbed headlines, scholars and the press decried the burgeoning harms to privacy that metadata mining and new surveillance technologies present. Through publicly accessible social media sites, web-tracking technologies, private data mining consolidators, and its own databases, the government is just a mouse click away from a wealth of intimate personal information that was virtually inaccessible only a decade ago. At the heart of the conundrum is the government's ability to source an unprecedented amount of personal data from private third parties. This trail of digital information is being insourced …

Religiosity In Constitutions And The Status Of Minority Rights, Brandy G. Robinson

Cultural Encounters, Conflicts, and Resolutions

Minority rights and religion have never been topics that are simultaneously considered. However, arguably, the two have relevance, especially when combined with the topic and theory of constitutionalism. Historically and traditionally, minorities have been granted certain rights and have been denied certain rights under various constitutions. These grants and denials relate to cultural differences and values, arguably relating to a culture’s understanding and interpretation of religion.

This article explores the relationship and status of minority rights as it relates to religiosity and constitutionalism. Essentially, there is a correlation between these topics and research shows where certain nations have used religion …

Roper V. Simmons - Supreme Court's Reliance On International Law In Constitutional Decision-Making, Jessica Mishali

Touro Law Review

No abstract provided.

The Limits Of Enumeration, Richard A. Primus

Articles

According to a well-known principle of constitutional interpretation here identified as the “internal-limits canon,” the powers of Congress must always be construed as authorizing less legislation than a general police power would. This Article argues that the internallimits canon is unsound. Whether the powers of Congress would in practice authorize any legislation that a police power would authorize is a matter of contingency: it depends on the relationship between the powers and the social world at a given time. There is no reason why, at a given time, the powers cannot turn out to authorize any legislation that a police …

Passive Takings: The State's Affirmative Duty To Protect Property, Christopher Serkin

Michigan Law Review

The purpose of the Fifth Amendment’s Takings Clause is to protect property owners from the most significant costs of legal transitions. Paradigmatically, a regulatory taking involves a government action that interferes with expectations about the content of property rights. Legal change has therefore always been central to regulatory takings claims. This Article argues that it does not need to be and that governments can violate the Takings Clause by failing to act in the face of a changing world. This argument represents much more than a minor refinement of takings law because recognizing governmental liability for failing to act means …

Closing The Doors To Justice: A Critique Of Pimentel V. Dreyfus And The Application Of Legal Formalism To The Elimination Of Food Assistance Benefits For Legal Immigrants, Hannah Zommick

Seattle University Law Review

This Comment contends that the Ninth Circuit’s opinion in Pimentel v. Dreyfus employed a legal formalist approach and that by applying this framework, the court prevented legal immigrants, who were caught between the strict eligibility restrictions of welfare reform, from asserting their rights through the justice system. The legal formalist approach “treats the law as a set of scientific formulae or principles that are derived from the study of case law. These principles create an internal analytical framework which, when applied to a set of facts, leads the decision maker, through logical deduction, to the correct outcome in a case.” …

Supreme Court, New York County, Uhlfelder V. Weinshall, David Schoenhaar

Touro Law Review

No abstract provided.

County Court, Westchester County, People V. Gant, Albert V. Messina Jr.

Touro Law Review

No abstract provided.

Supreme Court, Bronx County, People V. Barnville, David Schoenhaar

Touro Law Review

No abstract provided.

Supreme Court, Bronx County, People V. Butler, Courtney Weinberger

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, People V. Paulman, Michele Kligman

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, In The Matter Of Nassau County Grand Jury Subpoena Duces Tecum Dated June 24, 2003 "Doe Law Firm" V. Spitzer, Christin Harris

Touro Law Review

No abstract provided.

City Court, City Of Rochester, People V. Barton, Kerri Grzymala

Touro Law Review

No abstract provided.

Appellate Division, Third Department, Novara Ex Rel. Jones V. Cantor Fitzgerald, Lp, Kerri Grzymala

Touro Law Review

No abstract provided.

Supreme Court, Kings County, People V. Miller, Courtney Weinberger

Touro Law Review

No abstract provided.

Appellate Division, Third Department, People V. Rivette, Michele Kligman

Touro Law Review

No abstract provided.

Court Of Appeals Of New York, Harner V. County Of Tioga, Gerald C. Waters Jr.

Touro Law Review

No abstract provided.

District Court, Nassau County, People V. Yaghoubi, David Schoenhaar

Touro Law Review

No abstract provided.

Supreme Court, Bronx County, People V. Paul, Adam D'Antonio

Touro Law Review

No abstract provided.

Constitution Making In The Countries Of Former Soviet Dominance: Current Development, Rett R. Ludwikowski

Georgia Journal of International & Comparative Law

No abstract provided.

What Is Criminal Restitution?, Cortney E. Lollar

Law Faculty Scholarly Articles

A new form of restitution has become a core aspect of criminal punishment. Courts now order defendants to compensate victims for an increasingly broad category of losses, including emotional and psychological losses and losses for which the defendant was not found guilty. Criminal restitution therefore moves far beyond its traditional purpose of disgorging a defendant's ill-gotten gains. Instead, restitution has become a mechanism of imposing additional punishment. Courts, however, have failed to recognize the punitive nature of restitution and thus enter restitution orders without regard to the constitutional protections that normally attach to criminal proceedings. This Article deploys a novel …

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 …

The Scope Of Precedent, Randy J. Kozel

Michigan Law Review

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …

Mexico's Legal Revolution: An Appraisal Of Its Recent Constitutional Changes, 1988-1995, Jorge A. Vargas

Georgia Journal of International & Comparative Law

No abstract provided.