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Constitutional law

2016

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Institution
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Articles 1 - 30 of 153

Full-Text Articles in Law

The Contributions Of Louis Brandeis To The Law Of Lawyering, John S. Dzienkowski Dec 2016

The Contributions Of Louis Brandeis To The Law Of Lawyering, John S. Dzienkowski

Touro Law Review

No abstract provided.


Trump's Supreme Court, Alan E. Garfield Dec 2016

Trump's Supreme Court, Alan E. Garfield

Alan E Garfield

No abstract provided.


Policing As Administration, Christopher Slobogin Dec 2016

Policing As Administration, Christopher Slobogin

Vanderbilt Law School Faculty Publications

Police agencies should be governed by the same administrative principles that govern other agencies. This simple precept would have significant implications for regulation of police work, in particular the type of suspicionless, group searches and seizures that have been the subject of the Supreme Court's special needs jurisprudence (practices that this Article calls "panvasive"). Under administrative law principles, when police agencies create statute-like policies that are aimed at largely innocent categories of actors-as they do when administering roadblocks, inspection regimes, drug testing programs, DNA sampling programs, and data collection-they should have to engage in notice-and-comment rulemaking or a similar democratically …


Martin V. Mott And The Establishment Of Executive Emergency Authority, Eli Berns-Zieve Nov 2016

Martin V. Mott And The Establishment Of Executive Emergency Authority, Eli Berns-Zieve

Legal History Publications

In August of 1814, a New York farmer named Jacob E. Mott refused to rendezvous with the militia pursuant to the orders of Governor Daniel D. Tompkins as commanded by President James Madison. In 1818, Mott was court martialed and fined ninety-six dollars. One year later, Mott brought an action in replevin in the New York state courts to recover chattel taken from him by a deputy marshal in lieu of the ninety-six dollars. Both the New York trial and appellate courts sided with Mott. In a unanimous opinion authored by Justice Joseph Story, the Supreme Court of the United …


“Government By Injunction,” Legal Elites, And The Making Of The Modern Federal Courts, Kristin Collins Nov 2016

“Government By Injunction,” Legal Elites, And The Making Of The Modern Federal Courts, Kristin Collins

Faculty Scholarship

The tendency of legal discourse to obscure the processes by which social and political forces shape the law’s development is well known, but the field of federal courts in American constitutional law may provide a particularly clear example of this phenomenon. According to conventional accounts, Congress’s authority to regulate the lower federal courts’ “jurisdiction”—generally understood to include their power to issue injunctions— has been a durable feature of American constitutional law since the founding. By contrast, the story I tell in this essay is one of change. During the nineteenth century and into the twentieth, many jurists considered the federal …


Constitutional Rhetoric, Jamal Greene Nov 2016

Constitutional Rhetoric, Jamal Greene

Valparaiso University Law Review

No abstract provided.


Some Advice For President-Elect Donald Trump, Alan E. Garfield Nov 2016

Some Advice For President-Elect Donald Trump, Alan E. Garfield

Alan E Garfield

No abstract provided.


Speech And Strife, Robert L. Tsai Nov 2016

Speech And Strife, Robert L. Tsai

Robert L Tsai

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …


The Religious Freedom Waltz: Going Forward While Moving Back, Audra L. Savage Nov 2016

The Religious Freedom Waltz: Going Forward While Moving Back, Audra L. Savage

ConLawNOW

Although religious freedom has the distinction as the “first freedom,” it is not first in terms of protected rights. Religious freedom is under attack and if not shielded from potential threats, this quintessential American right may be lost altogether. Or at least, this is what U.S. law professors Andrew Koppelman and Steven D. Smith would have one believe, according to books each professor recently published. Unfortunately, they are not exaggerating. Volumes of articles and tomes have been written questioning, critiquing and criticizing (and lamenting, blasting and ridiculing) the decisions of the U.S. Supreme Court adjudicating the religion clauses of the …


Hearsay And The Confrontation Clause, Lynn Mclain Oct 2016

Hearsay And The Confrontation Clause, Lynn Mclain

All Faculty Scholarship

This speech was delivered to the Wicomico Co. Bar Association on October 28th, 2016. It is an updated version of the 2012 speech, available at http://scholarworks.law.ubalt.edu/all_fac/924/ .

Overview: Only an out-of-court statement ("OCS") offered for the truth of the matter that was being asserted by the out-of-court declarant ("declarant") at the time when s/he made the OCS ("TOMA") = hearsay ("HS"). If evidence is not HS, the HS rule cannot exclude it. The Confrontation Clause also applies only to HS, but even then, only to its subcategory comprising "testimonial hearsay." Cross-references to "MD-EV" are to section numbers of L. MCLAIN, …


Mdc Rests. V. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. 76 (Oct. 27, 2016), Alysa Grimes Oct 2016

Mdc Rests. V. Eighth Jud. Dist. Ct., 132 Nev. Adv. Op. 76 (Oct. 27, 2016), Alysa Grimes

Nevada Supreme Court Summaries

To “provide” health benefits under the Minimum Wage Amendment, an employer need only offer to employees (rather than enroll them in) a qualifying health benefit plan. Tips are not included in an employee’s gross taxable income for calculating maximum health benefit plan premiums.


Perry V. Terrible Herbst, Inc., Nev. Adv. Op. 75 (Oct. 27, 2016), Wesley Lemay Jr. Oct 2016

Perry V. Terrible Herbst, Inc., Nev. Adv. Op. 75 (Oct. 27, 2016), Wesley Lemay Jr.

Nevada Supreme Court Summaries

The Minimum Wage Amendment (MWA) of the Nevada Constitution does not have a specific statute of limitations provision. Because the MWA is closely analogous to recovery for back pay under NRS 608.260, the two-year statute of limitations provision in NRS 608.260 applies, and not the catch-all four-year period from NRS 11.220.


Brief For Amici Curiae Constitutional Law, Federal Courts, Citizen, And Remedies Scholars In Support Of Respondent: Lynch V. Morales-Santana, Judith Resnick, Stephen I. Vladeck, Mier Feder, Muneer I. Ahmad, Erwin Chemerinsky, Gillian E. Metzger, Gerald L. Neuman, Linda Bosniak, Michael C. Dorf, Burt Neuborne, Doug Rendleman, David L. Shapiro, Michael J. Wishnie Oct 2016

Brief For Amici Curiae Constitutional Law, Federal Courts, Citizen, And Remedies Scholars In Support Of Respondent: Lynch V. Morales-Santana, Judith Resnick, Stephen I. Vladeck, Mier Feder, Muneer I. Ahmad, Erwin Chemerinsky, Gillian E. Metzger, Gerald L. Neuman, Linda Bosniak, Michael C. Dorf, Burt Neuborne, Doug Rendleman, David L. Shapiro, Michael J. Wishnie

Scholarly Articles

None available.


Test Your Knowledge Of Church And State, Alan E. Garfield Sep 2016

Test Your Knowledge Of Church And State, Alan E. Garfield

Alan E Garfield

No abstract provided.


Take Our Quiz About Constitutional Law, Judith L. Ritter Sep 2016

Take Our Quiz About Constitutional Law, Judith L. Ritter

Judith L Ritter

No abstract provided.


Equality: A Test On Equal Protection, Alan E. Garfield Sep 2016

Equality: A Test On Equal Protection, Alan E. Garfield

Alan E Garfield

No abstract provided.


Implied Vs. Fundamental Freedom: A Test, Alan E. Garfield Sep 2016

Implied Vs. Fundamental Freedom: A Test, Alan E. Garfield

Alan E Garfield

No abstract provided.


A Quiz On Federal Power And States’ Rights, Alan E. Garfield Sep 2016

A Quiz On Federal Power And States’ Rights, Alan E. Garfield

Alan E Garfield

No abstract provided.


Constitutional Conundrums, Alan E. Garfield Sep 2016

Constitutional Conundrums, Alan E. Garfield

Alan E Garfield

No abstract provided.


A Guide To The Singapore Constitution (2nd Ed.), Smu Apolitical Sep 2016

A Guide To The Singapore Constitution (2nd Ed.), Smu Apolitical

Student Publications

This primer is an introductory guide to the Constitution, its history, the legal concepts associated with it (such as the separation of powers and constitutional supremacy) and so much more. With illustrations and diagrams to aid in understanding, it is designed for readers of all ages and from all walks of life. The Constitution is the supreme law of the land. It provides for, among other things, the 3 branches of the Singapore government (namely, the executive, the legislature and the judiciary) and secures our fundamental liberties. The provisions in the Constitution are applied in our daily lives, both directly …


Professional Speech And The First Amendment, Rodney A. Smolla Sep 2016

Professional Speech And The First Amendment, Rodney A. Smolla

West Virginia Law Review

No abstract provided.


Testing For Regulatory Penalties: Insuring The Health Of Fedrealism In The Age Of Obamacare, Steven Z. Hodaszy Sep 2016

Testing For Regulatory Penalties: Insuring The Health Of Fedrealism In The Age Of Obamacare, Steven Z. Hodaszy

West Virginia Law Review

No abstract provided.


A Plea For Constitutional Balance, Stephen M. Feldman Aug 2016

A Plea For Constitutional Balance, Stephen M. Feldman

Stephen M. Feldman

The fundamentalist approach of the conservative bloc of Justices on the U.S. Supreme Court in regards to corporate spending on political campaigns skews government processes and generates unintended consequences.  This paper discusses the historical approach of the Framers to invigorate the new republican democratic government while protecting individual liberties by separating these into public and private spheres of activity.


Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas Aug 2016

Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas

All Faculty Scholarship

Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …


Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel Aug 2016

Free Speech And Parity: A Theory Of Public Employee Rights, Randy J. Kozel

Randy J Kozel

More than four decades have passed since the U.S. Supreme Court revolutionized the First Amendment rights of the public workforce. In the ensuing years the Court has embarked upon an ambitious quest to protect expressive liberties while facilitating orderly and efficient government. Yet it has never articulated an adequate theoretical framework to guide its jurisprudence. This Article suggests a conceptual reorientation of the modern doctrine. The proposal flows naturally from the Court’s rejection of its former view that one who accepts a government job has no constitutional right to complain about its conditions. As a result of that rejection, the …


State V. Eighth Jud. Dist. Ct. (Schneider), 132 Nev. Adv. Op. 59 (Aug. 12, 2016), Ping Chang Aug 2016

State V. Eighth Jud. Dist. Ct. (Schneider), 132 Nev. Adv. Op. 59 (Aug. 12, 2016), Ping Chang

Nevada Supreme Court Summaries

The Court held that the district court abused its discretion when overturning a misdemeanor driving under the influence conviction by failing to consider the state’s evidence of the defendant’s guilt.


Exploring The Affective Constitution, Kathryn Abrams Aug 2016

Exploring The Affective Constitution, Kathryn Abrams

Kathryn Abrams

No abstract provided.


Assault Weapon Bans: Can They Survive Rational Basis Scrutiny?, Clayton E. Cramer Jul 2016

Assault Weapon Bans: Can They Survive Rational Basis Scrutiny?, Clayton E. Cramer

ConLawNOW

In the last two decades, legislatures and courts have been increasingly willing to argue that a certain class of firearms termed “assault weapons” are not protected by the Second Amendment, and may be regulated or banned even though functionally identical firearms are not generally subject to such laws. Do such underinclusive bans survive even the lowest level of scrutiny: rational basis?


Payment Finality And Discharge In Funds Transfers, Benjamin Geva Jul 2016

Payment Finality And Discharge In Funds Transfers, Benjamin Geva

Benjamin Geva

The article explores the occurrence of "final payment" in funds transfers in the form of "accountability" by a bank instructed to pay to a payee/beneficiary. Both the accountability of the drawee/payor bank in a check-collection debit-pull system and that of the beneficiary's bank in a wire-transfer credit-push system are discussed. The article further examines the relationship between "final payment" and the discharge of an obligation paid by means of the "funds transfer." It analyzes relevant provisions of Articles 3, 4, and 4A of the Uniform Commercial Code, sometimes against the background of general common law principles. The article proposes minor …


Make It Count: Your Vote Is Vital In Determining The Future Of The Supreme Court, Alan E. Garfield Jul 2016

Make It Count: Your Vote Is Vital In Determining The Future Of The Supreme Court, Alan E. Garfield

Alan E Garfield

No abstract provided.