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Hamdan V. Rumsfeld: The Functional Case For Foreign Affairs Deference To The Executive Branch, John C. Yoo, Julian Ku Nov 2006

Hamdan V. Rumsfeld: The Functional Case For Foreign Affairs Deference To The Executive Branch, John C. Yoo, Julian Ku

John C Yoo

The Supreme Court's decision in Hamdan v. Rumsfeld represents a radical new judicial approach to the interpretation of laws relating to foreign affairs. Not only did the Hamdan Court fail to defer to the executive's reasonable interpretations of the relevant statutes, treaties, and customary international law of war relating to military commissions, but it did not even justify its failure to depart from longstanding formal doctrines requiring such deference. In this Essay, we offer a functional defense of the doctrines requiring judicial deference to executive interpretations of laws affecting foreign affairs in wartime; doctrines that the Hamdan Court ...


Public Interest Litigation And Role Of The Supreme Court In Ensuring Social Justice In Bangladesh, K. T. Alam, Abu Noman Mohammad Atahar Ali Nov 2006

Public Interest Litigation And Role Of The Supreme Court In Ensuring Social Justice In Bangladesh, K. T. Alam, Abu Noman Mohammad Atahar Ali

Abu Noman Mohammad Atahar Ali

No abstract provided.


Hate The Vile Campaign Ads? Blame The Supreme Court, Alan E. Garfield Nov 2006

Hate The Vile Campaign Ads? Blame The Supreme Court, Alan E. Garfield

Alan E Garfield

No abstract provided.


Against Sovereignty: A Cautionary Note On The Normative Power Of The Actual, Patrick Mckinley Brennan Sep 2006

Against Sovereignty: A Cautionary Note On The Normative Power Of The Actual, Patrick Mckinley Brennan

Patrick McKinley Brennan

Drawing on classical and contemporary jurisprudence and political philosophy, this Essay argues that the Roberts Court should seize the next apt moment to abandon the doctrines of “sovereignty” and “sovereign dignity” that the Rehnquist Court developed over the decade that began with the 1996 decision in the Seminole case. Although pursued in service of the laudable goal of “our federalism,” these doctrines work a corruption of our legal, political, and moral self-understanding. As they do so, they distract the Court and the citizenry from the disciplined commitment to the rule of law and legal justice by which a body politic ...


Editorial, Upholding Separation Of Power Was Proper, John Gedid Sep 2006

Editorial, Upholding Separation Of Power Was Proper, John Gedid

John L. Gedid

No abstract provided.


“What’S Yours Can Be Mine: Are There Any Private Takings After City Of New London V. Kelo?” , David A. Schultz Aug 2006

“What’S Yours Can Be Mine: Are There Any Private Takings After City Of New London V. Kelo?” , David A. Schultz

David A Schultz

This article examines the use of eminent domain in light of the Kelo v. City of New London Supreme Court decision. After a review of state takings litigation the conclusion is that the courts can and still do find that private takings can occur but that the judiciary is able to protect against them.


Constitution, Kirk W. Junker Jul 2006

Constitution, Kirk W. Junker

Kirk W Junker

In looking toward the futures of Europe, the focal point of the legal and governmental aspects of European life has recently become the Treaty Establishing a Constitution for Europe—or just the ‘Constitution’ as it has become colloquially known. That socio-linguistic act of referring to a document as a constitution is a mammoth move. First, it ignores all of the concerns and handwringing
around the idea of producing a legal document called a constitution that might immediately be thought of as a sovereign-building document, such as the German constitution or the Irish
constitution. Second, it suggests that the people of ...


Inconstitucionalidad Del Sistema Electoral, Juan Carlos Riofrío Martínez-Villalba May 2006

Inconstitucionalidad Del Sistema Electoral, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

No abstract provided.


Why The Defense Of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith And Credit, And The Many Societal Actors That Determine What The Constitution Requires, Mark D. Rosen Feb 2006

Why The Defense Of Marriage Act Is Not (Yet?) Unconstitutional: Lawrence, Full Faith And Credit, And The Many Societal Actors That Determine What The Constitution Requires, Mark D. Rosen

Mark D. Rosen

This Article argues that the Defense of Marriage Act (DOMA) is not unconstitutional - at least not yet. DOMA provides that States need not recognize same-sex marriages (or judgments in connection with such marriages) performed in sister States. The Article first shows that the Supreme Court's recent opinion in Lawrence v. Texas, which struck down as unconstitutional state laws that criminalized sodomy, has not invalidated the DOMA. Lawrence is best understood as having left undecided the constitutional status of same-sex marriage, and the Article explains the benefits of the Court's having held back its constitutional judgment on this subject ...


El Principio Contra Homine Y El Pretendido Derecho De Acceso, Juan Carlos Riofrío Martínez-Villalba Feb 2006

El Principio Contra Homine Y El Pretendido Derecho De Acceso, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

No abstract provided.


Constitutional Education For The People Themselves, Sheldon Nahmod Jan 2006

Constitutional Education For The People Themselves, Sheldon Nahmod

Sheldon Nahmod

No abstract provided.


Wrestling With God: The Courts' Tortuous Treatment Of Religion, Patrick Garry Dec 2005

Wrestling With God: The Courts' Tortuous Treatment Of Religion, Patrick Garry

Patrick M. Garry

The relationship between church and state is both controversial and unsettled. For decades, the courts have vacillated dramatically in their rulings on when a particular governmental accommodation rises to the level of an impermissible state establishment of religion. Without a comprehensive theory of the First Amendment establishment clause, religion cases have devolved into a jurisprudence of minutiae. Seemingly insignificant occurrences, such as a student reading a religious story or a teacher wearing a cross on a necklace, have led to years of litigation. And because of the constant threat of judicial intrusion, a pervasive social anxiety exists about the presence ...


Continuing The March Toward Reasonableness: Last Term's Fourth Amendment Decisions, Lawrence Rosenthal Dec 2005

Continuing The March Toward Reasonableness: Last Term's Fourth Amendment Decisions, Lawrence Rosenthal

Lawrence Rosenthal

No abstract provided.


Bartnicki V. Vopper, 532 U.S. 514 (2001), Alan Garfield Dec 2005

Bartnicki V. Vopper, 532 U.S. 514 (2001), Alan Garfield

Alan E Garfield

No abstract provided.


A Shared Constitutionalism: Stemm Cells And The Case For Transatlanticism, Russell Miller Dec 2005

A Shared Constitutionalism: Stemm Cells And The Case For Transatlanticism, Russell Miller

Russell A. Miller

No abstract provided.


Book Review(Reviewing Arguing Marbury V. Madison (Mark Tushnet Ed., 2005), Robert Lipkin Dec 2005

Book Review(Reviewing Arguing Marbury V. Madison (Mark Tushnet Ed., 2005), Robert Lipkin

Robert Justin Lipkin

No abstract provided.


So What Is The Real Legacy Of Oakes? Two Decades Of Proportionality Analysis Under The Canadian Charter’S Section 1, Sujit Choudhry Dec 2005

So What Is The Real Legacy Of Oakes? Two Decades Of Proportionality Analysis Under The Canadian Charter’S Section 1, Sujit Choudhry

Sujit Choudhry

R. v. Oakes is widely regarded as one of the most important judgments interpreting Canada’s Charter of Rights and Freedoms. In addition to laying down its famous proportionality test to assess the reasonableness of limits on Charter rights, it clarified the Supreme Court of Canada’s Court’s interpretive methodology for Charter cases, perhaps most centrally that rights are of presumptive importance, and limitations the exception that are only acceptable if governments meet a demanding test of justification. The citation of Oakes by courts in Antigua and Barbuda, Australia, Fiji, Hong Kong, Ireland, Israel, Jamaica, Namibia, South Africa, the ...


Palazzolo, The Public Trust, And The Property Owner’S Reasonable Expectations: Takings And The South Carolina Marsh Island Bridge Debate, Erin Ryan Dec 2005

Palazzolo, The Public Trust, And The Property Owner’S Reasonable Expectations: Takings And The South Carolina Marsh Island Bridge Debate, Erin Ryan

Erin Ryan

South Carolina recently promulgated new guidelines regulating the State’s consideration of requests by private marsh island owners to build bridges for vehicular access through publicly owned marsh and tidelands. Many thousands of these islands hug the South Carolina coast, but they are surrounded by tidelands subject to South Carolina’s formidable public trust doctrine, which obligates the State to manage submerged lands and waterways for the benefit of the public. This piece evaluates the relationship between the public trust doctrine and the takings subtext to the debate over the new guidelines – a relationship that has become particularly interesting in ...


Changing Expectations Of Privacy And The Fourth Amendment, Robert Power Dec 2005

Changing Expectations Of Privacy And The Fourth Amendment, Robert Power

Robert C Power

Public attitudes about privacy are central to the development of fourth amendment doctrine in two respects. These are the two “reasonableness” requirements, which define the scope of the fourth amendment (it protects only “reasonable” expectations of privacy), and provide the key to determining compliance with its commands (it prohibits “unreasonable” searches and seizures). Both requirements are interpreted in substantial part through evaluation of societal norms about acceptable levels of privacy from governmental intrusions. Caselaw, poll data, newspaper articles, internet sites, and other vehicles for gauging public attitudes after the September 11 attacks indicate that public concerns about terrorism and the ...


Who's So Afraid Of The Eleventh Amendment, John C. Yoo, Jesse Choper Dec 2005

Who's So Afraid Of The Eleventh Amendment, John C. Yoo, Jesse Choper

John C Yoo

This Article argues that critics have exaggerated the impact and importance of the Eleventh Amendment cases. This is not to deny that revived judicial security for states' rights has become the signature issue of the Rehnquist Court. We examine whether the subject deserves the enormous importance that many, including a number of commentators and several Justices, have given it. We conclude that it does not. A series of doctrines, both internal and external to the Eleventh Amendment, allow the federal government to achieve its policy objectives. Preventing private plaintiffs from suing states for retrospective money damages poses at most a ...


Unburdening The Constitution: What Has The Indian Constitution Got To Do With Private Universities, Modernity And Nation States?, Shubhankar Dam Dec 2005

Unburdening The Constitution: What Has The Indian Constitution Got To Do With Private Universities, Modernity And Nation States?, Shubhankar Dam

Shubhankar Dam

This article critically analyses the decision of the Indian Supreme Court in Yashpal and another v. State of Chhattisgarh and others holding the establishment of private universities as unconstitutional. Swayed by the overwhelmingly irresponsible character of the respondent universities, the Supreme Court innovated constitutional arguments to uphold the claims of the petitioners. While intuitively correct in the context of the immediate facts, the judgment, when analysed in the abstract, reveals the self-inflicted harm it has the potential to cause. The judgment is technologically regressive: it fails to account for the emerging trends in education, especially those related to the use ...


A Cultural Turn: Reflections On Recent Historical And Legal Writing On The Second Amendment Dec 2005

A Cultural Turn: Reflections On Recent Historical And Legal Writing On The Second Amendment

William G. Merkel

If commentators on the Second Amendment agree about anything at all, it is only that disputants parsing the meaning and importance of the constitutional right to arms cannot avoid involvement in a larger cultural war (and this is the term almost everyone employs)I over the meaning and importance (vel non) of gun ownership to the American psyche and soul. Almost every scholar discussed in this short, inexhaustive review of recent literature calls for reasoned moderation (the other calls for well armed chaos),2 but most writers in the field, including this one, and including those who neither own nor ...


Rational War And Constitutional Design, John C. Yoo, Jide Nzelibe Dec 2005

Rational War And Constitutional Design, John C. Yoo, Jide Nzelibe

John C Yoo

Contemporary accounts of the allocation of war powers authority often focus on textual or historical debates as to whether the President or Congress holds the power to initiate military hostilities. In this Essay, we move beyond such debates and instead pursue a purely functional or comparative institutional analysis of the relationship between Congress and the President on war powers. More specifically, we focus on the following question: Which war powers system would best enhance the effectiveness of the United States in making decisions on war and peace? Our answer draws on one of the few facts considered to be close ...


Boyakasha, Fist To Fist: Respect And The Philosophical Link With Reciprocity In International Law And Human Rights, Donald J. Kochan Dec 2005

Boyakasha, Fist To Fist: Respect And The Philosophical Link With Reciprocity In International Law And Human Rights, Donald J. Kochan

Donald J. Kochan

From Grotius to Hobbes to Locke to an unconventional modern pop-culture manifestation in Ali G, the concept of “respect” has always been understood as important in human interaction and human agreements. The concept of mutual understanding and obligation pervades human interaction, and, for purposes of this Article, international relations. Almost all basic principles in English, United States, and other country’s laws that value human and individual rights have based, over time, the development of their laws on the philosophical principle of respect. So much of common and statutory law is designed to enforce respect for others. The principle question ...


The Uses Of History In The Supreme Court's Takings Clause Jurisprudence, Jonathan R. Lahn Dec 2005

The Uses Of History In The Supreme Court's Takings Clause Jurisprudence, Jonathan R. Lahn

Jonathan R Lahn

No abstract provided.