Law Commons^™

In Defense Of The Debt Limit Statute, Anita S. Krishnakumar

Faculty Publications

The debt limit statute is a critical feature of the federal budget process and prompts frequent legislation to increase the government's borrowing authority. In this Article, Professor Anita S. Krishnakumar examines the history of the debt limit statute as well as its function in the fiscal constitution. The Article deconstructs several popular criticisms of the debt limit statute, arguing that the criticisms exaggerate and that the statute in fact serves two important roles: first, the statute is the last remnant of congressional control and accountability over the national debt; second, it acts as an important institutional check on party and …

Waging War: Japan's Constitutional Constraints, John O. Haley

Vanderbilt Law School Faculty Publications

Both electoral results and public opinion polls have long revealed what most observers have viewed as a paradox if not a contradiction. By significant majorities, the Japanese people appear to oppose any revision of article 9, but support the SDF and their deployment with legislative sanction. The seemingly antithetical aspects of these views can be reconciled if one accepts the proposition that the public is willing to allow an armed force but only within parameters that are still ill-defined. So long as article 9 remains, the government is constrained by the need for legislative approval and at least potential judicial …

The Statutory President, Kevin M. Stack

Vanderbilt Law School Faculty Publications

American public law has no answer to the question of how a court should evaluate the president's assertion of statutory authority. In this Article, I develop an answer by making two arguments. First, the same framework of judicial review should apply to claims of statutory authority made by the president and federal administrative agencies. This argument rejects the position that the president's constitutional powers should shape the question of statutory interpretation presented when the president claims that a statute authorizes his actions. Once statutory review is separated from consideration of the president's constitutional powers, the courts should insist, as they …

The Unitary Executive In The Modern Era, 1945-2004, Anthony J. Colangelo, Christopher S. Yoo, Steven G. Calabresi

Faculty Journal Articles and Book Chapters

Since the impeachment of President Clinton, there has been renewed debate over whether Congress can create institutions such as special counsels and independent agencies that restrict the president's control over the administration of the law. Initially, debate centered on whether the Constitution rejected the executive by committee used by the Articles of Confederation in favor of a unitary executive, in which all administrative authority is centralized in the president. More recently, the debate has focused on historical practices. Some scholars suggest that independent agencies and special counsels are such established features of the constitutional landscape that any argument in favor …

Spiritual Custody: Relational Rights And Constitutional Commitments, Jeffrey Shulman

Georgetown Law Faculty Publications and Other Works

Patricia and David Zummo were married on December 17, 1978. When they divorced ten years later, the Zummos were unable to come to agreement about the religious upbringing of their three children. Prior to their marriage, Patricia and David had agreed that they would raise their children in the Jewish faith, and while they were married, "the Zummo family participated fully in the life of the Jewish faith and community." But after the divorce David wanted to take the children to Roman Catholic services as he saw fit, and he refused to arrange for the children's attendance at Hebrew School …

Constitutional Conversations And New Religious Movements: A Comparative Case Study, Leigh H. Greenhaw, Michael H. Koby

Vanderbilt Journal of Transnational Law

Using the metaphor of a constitutional conversation to compare the treatment of a relatively new and unpopular religion by the legal systems of the United States, Russia, and Spain, this Article examines the methodology by which laws affecting religion are made and enforced. It uses as a case study the interaction of the Jehovah's Witnesses with the legal system of the United States, comparing it with more recent interactions in Russia and Spain. The Authors argue that while the experience in the United States was profoundly influenced by a common-law methodology, the experience in two civil-law countries, Russia and Spain, …

United States Court Of Federal Claims: Walker V. United States, Michael J. Graetz

Faculty Scholarship

Walker v. United States, 69 Fed. Cl. 222, (Fed. Cl. 2005) (granting motion for reconsideration upon finding that water, access and forage rights were legally distinct from surface estate rights determined in a prior action).

Originalism, Stare Decisis And The Promotion Of Judicial Restraint, Thomas W. Merrill

Faculty Scholarship

If we consider constitutional law as a practice, it is clear that both originalism and precedent play an important role. Neither one is going to vanquish the other, at least not any time soon. We can engage in academic debate about originalism versus stare decisis, as if they were rival modes of interpretation that could operate to the exclusion of the other. But the question of practical importance is one of degree and emphasis: in cases where these two sources of authority arguably point in different directions, which one should have a greater claim to our allegiance?

Originalism – interpreting …

Why You Should Read My Book Anyhow: A Reply To Trevor Morrison, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Authors rarely have the opportunity to respond to their reviewers in the same issue in which the review is published, so I am grateful to the Cornell Law Review for inviting me to do so and to Trevor Morrison for graciously agreeing. I am also appreciative of the respectful tone that Professor Morrison employs in his comments on a book with which he so obviously disagrees. Coming from a critic, the positive qualities he attributes to Restoring the Lost Constitution: The Presumption of Liberty are especially significant. Yet he does disagree with me, which means that I disagree with him, …

Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young

Faculty Scholarship

No abstract provided.

Ten Commandments, Nine Judges, And Five Versions Of One Amendment - The First. (“Now What?”), William W. Van Alstyne

Faculty Scholarship

This article explores the variety of opinions expressed by the Justices in the two “Ten Commandments” cases, specifically Justice O’Connor’s dissent and Justice Breyer’s concurrence in Van Orden v. Perry.

Caging Animal Advocates' Political Freedoms: The Unconstitutionality Of The Animal And Ecological Terrorism Act, Andrew N. Ireland Moore

Animal Law Review

The animal advocacy movement is facing another obstacle, resulting from the creation of the Animal and Ecological Terrorism Act (AETA). The Act seeks to create harsh penalties including a Terrorist Registry for acts performed by the Animal Liberation Front (ALF) and ALF-type actors. In addition, the proposed legislation will affect animal advocates not involved with the ALF. However, the model legislation, as written, must pass Constitutional scrutiny. This paper argues that the proposed Animal and Ecological Terrorism Act is unconstitutional due to its infringement on the First Amendment, its overbreadth, and its vagueness.

Defending Deference: A Response To Professors Epstein And Wells, Robert J. Pushaw Jr.

Missouri Law Review

This Note primarily seeks to challenge Professor Wells’s ideas contributed to the symposium. Specifically, the Constitution creates political and institutional structures that lead to strong executive-branch initiative in military affairs and fairly circumscribed judicial review. Constitutional considerations, as well as precedent, cast doubt on the viability of Wells’s “hard look” proposal and suggest that the Court will—should—continue its pattern of reviewing with deference wartime claims that the President has violated individual rights.

Encouraging Courage: Law's Response To Fear And Risk, William B. Fisch

Missouri Law Review

No abstract provided.

A Reason To Discriminate: Curtailing The Use Of Title Vii Analysis In Claims Arising Under The Adea, Katherine Krupa Green

Louisiana Law Review

No abstract provided.

"The House Was Quiet And The World Was Calm The Reader Became The Book", Burt Neuborne

Vanderbilt Law Review

Professor Neuborne argues that we err in reading the Bill of Rights "in splendid isolation" as a randomly ordered set of clause-bound norms. Instead, he argues that the disciplined order and placement of the thirty-three ideas in the Bill of Rights, especially the six textual ideas united in the First Amendment, reveals a deep contextual structure imposed by the Founders that sheds important light on the meaning of the constitutional text. He argues that the "vertical" order of the first ten amendments, as well as the "horizontal" order of ideas within each amendment, provides important clues to a judge seeking …

Questioning Deference, Christina E. Wells

Faculty Publications

This article examines the accepted axiom that courts should defer to the government's actions during national security crises even when such actions potentially violate citizens' constitutional rights. The paper questions two assumptions underlying that axiom - first, that executive officials are best equipped to determine when security needs justify liberty infringements and, second, that judges are particularly unqualified to meddle in security issues, even when civil liberties are involved. Relying on psychological theories regarding the role that fear plays in skewing risk assessment and historical analyses of past crises, the paper argues that times of crisis lend themselves to unnecessary …

The Doctrine Of Deference: Shifting Constitutional Presumptions And The Supreme Court's Restatement Of Student Rights, Bernard James, Joanne E.K. Larson

South Carolina Law Review

No abstract provided.

Structuring Sentencing: Apprendi, The Offense Of Conviction, And The Limited Role Of Constitutional Law, Benjamin J. Priester

Indiana Law Journal

No abstract provided.

Cross Burning, Hate Speech, And Free Speech In America, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Mental Disorder And The Civil/Criminal Distinction, Grant H. Morris

San Diego Law Review

This essay, written as part of a symposium issue to commemorate the 50th anniversary of the University of San Diego Law School, discusses the evaporating distinction between sentence-serving convicts and mentally disordered nonconvicts who are involved in, or who were involved in, the criminal process–people we label as both bad and mad. By examining one Supreme Court case from each of the decades that follow the opening of the University of San Diego School of Law, the essay demonstrates how the promise that nonconvict mentally disordered persons would be treated equally with other civilly committed mental patients was made and …

Recovering (From) Enlightenment?, Steven D. Smith

San Diego Law Review

The American Constitution at its founding is often associated with "the Enlightenment," and modern liberal constitutionalism continues to be associated with what Bruce Ackerman refers to as "the spirit of the Enlightenment." This article contrasts the essential features of the classical or historical Enlightenment with those of the modern Enlightenment, as reflected in the thinking of theorists like Rawls, Dworkin, and others and as embodied in a good deal of modern constitutional doctrine. The article argues that the modern Enlightenment is more accurately viewed as an inversion than a continuation of the classical Enlightenment. Moreover, this inversion threatens to undermine …

Constitutional Law—Separation Of Powers—Restoring The Constitutional Formula To The Federal Judicial Appointment Process: Taking The Vice Out Of "Advice And Consent", Jason Eric Sharp

University of Arkansas at Little Rock Law Review

No abstract provided.

Speech And Strife, Robert L. Tsai

Law and Contemporary Problems

Tsai examines the ways in which the US Supreme Court uses language to signal its authority. One technique of the Court is to frequently use the image of institutional conflict within its rulings.

Functional Departmentalism And Nonjudicial Interpretation: Who Determines Constitutional Meaning?, Dawn E. Johnsen

Law and Contemporary Problems

Johnsen examines the roles of nonjudicial entities--especially the Congress and the president--in the development of constitutional meaning. Although the other two branches are fearful of challenging judiciary supremacy, functional departmentalism may offer a certain degree of autonomy from the Court.

Foreword, Christopher H. Schroeder

Law and Contemporary Problems

In the summer of 2001, a group of lawyers, law professors, students, and judges formed the American Constitution Society. The organization’s avowed purpose is "to counter the dominant vision of American law today, a narrow conservative vision that lacks appropriate regard for the ways in which the law affects people’s lives: and to "restore the fundamental principles of respect for human dignity, protection of individual rights and liberties, genuine equality, and access to justice to their rightful- and traditionally central-place in American law."1 By spring 2002, the American Constitution Society had formed more than fifty campus chapters, plus lawyer chapters …

Warning: Labeling Constitutions May Be Hazardous To Your Regime, Suzanna Sherry

Law and Contemporary Problems

Sherry presents information concerning the labeling of court decisions as being liberal or conservative victories. Because each case can be viewed in different aspects of liberalism and conservatism, it is more appropriate to simply recognize that there are important, non-ideological values at stake on both sides of each case.

The Cycles Of Constitutional Theory, Barry Friedman

Law and Contemporary Problems

Friedman presents information on the cyclical nature of constitutional theory. Because constitutional theory is a reaction to the current developments of constitutional law, it is interesting to view constitutional issues through the framework of different historical circumstances.

The Antebellum Political Background Of The Fourteenth Amendment, Garrett Epps

Law and Contemporary Problems

Epps presents information concerning the historical context of the Fourteenth Amendment. Among other implications, the Amendment should be viewed as an effort to defend the national government from control by transient majorities or undemocratic factions in the states.

Comparative Constitutional Reasoning: The Law And Strategy Of Selecting The Right Arguments, Taavi Annus

Duke Journal of Comparative & International Law

No abstract provided.