Law Commons^™

Missouri's Religious Freedom Restoration Act: A New Approach To The Cause Of Conscience, James A. Hanson

Missouri Law Review

This Law Summary will examine both the congressional and state efforts to buttress religious liberty guarantees. Of primary interest here is the most recent addition to this community: Missouri’s RFRA. After outlining the history and language of Missouri’s RFRA, this Summary will provide guidance for the interpretation and application of the statute in Missouri.

No Longer The Ugly Duckling: The European Courtof Human Rights Recognizes Transsexual Civil Rights In Goodwin V. United Kingdom And Sets The Tone For Future United States Reform, Betty C. Burke

Louisiana Law Review

No abstract provided.

Charterwithout Borders? The Supreme Court Of Canada, Transnational Crime And Constitutional Rights And Freedoms, Robert J. Currie

Dalhousie Law Journal

The first decades of the Supreme Court of Canada's Charter jurisprudence have coincided roughly with an increase in the extent to which Canada is affected by transnational crime and the nation s consequential participation in inter-state efforts to combat it. The Court itself has remarked on its discrete "jurisprudence on matters involving Canada's international co-operation in criminal investigations and prosecutions." This article examines the Court s adoption of a different approach to Charter analysis in cases involving transnational elements and surveys where the Court has "drawn the line" in terms of Charter application. By way of analyzing jurisprudence on exclusion …

The Role Of Purposivism In The Delegation Of Rulemaking Authority To The Courts, Michael Rosensaft

ExpressO

The courts are often used by Congress as a “political lightning rod,” when Congress cannot decide how to resolve an issue. Congress relies on administrative agencies for their expertise, and it also makes sense for Congress to delegate some rulemaking authority to the courts, relying on a court’s expertise in developing caselaw in an incremental basis. However, this authority should not be lightly implied. A court can tell that Congress has delegated rulemaking authority to it when the purpose of the statute is clear and the text is broadly worded. It thus makes sense in these cases that purposivism should …

Free Exercise Of Religion In Germany And The United States, Edward J. Eberle

Law Faculty Scholarship

In this Article, Professor Edward Eberle provides a comparative overview of constitutional safeguards affecting religious freedom in Germany and the United States. Specifically the author analyzes the German and American approaches to the free exercise of religion within their respective constitutional systems. The result is an illuminating exposition that provides much insight for comparative and constitutional scholars.

In the years following the Second World War, religious freedoms in Germany developed along similar, individualist paths to those found in the United States Constitution. However, unlike the Constitution, the Basic Law's provisions touching on religious liberty are detailed and quite elaborate and …

Symbolic Counter-Speech, Howard M. Wasserman

Faculty Publications

No abstract provided.

The Search For Coherence In The Use Of Foreign Court Judgements By The Supreme Court Of Ireland, Bruce Carolan

Articles

The reference to foreign court judgments by the US Supreme Courts - particularly in cases involving the US Constitution - has sparked controversy. This controversy flared in Lawrence v. Texas, where Justice Scalia criticized Justice Kennedy for reference to judgments by the European Court of Human Rights in Justice Kennedy's majority opinion striking down the Texas sodomy statute. This article examines the issue from a different perspective: references to 'foreign' court judgments (including US Supreme Court opinions) by the Supreme Court of Ireland. The article examines the Irish Supreme Court's use of judgments from the European Court of Justice, the …

The New Post 9/11 America Or The Making Of King George: A Review Of Executive Power In The Effort To Combat Global Terrorism As It Relates To The Power Of The Purse, Woodrow E. Turner

West Virginia Law Review

No abstract provided.

The Constitutionality Of International Delegations, Edward T. Swaine

GW Law Faculty Publications & Other Works

Does the continuing assignment of legislative power to international institutions like the WTO, NAFTA, and the U.N. infringe the U.S. Constitution? The political controversy over the continued reliance on such organizations, and the potential effect on welfarist and democratic values, is increasingly perceived to have a legal dimension. Recent scholarship has taken two radically different views. One recent strain takes the position that such delegations are constitutionally problematic, chiefly in terms of the nondelegation doctrine and federalism, and proposes that the gap between these principles and constitutional practice be reduced. But others argue that these doctrines lack legal or normative …

Fire, Metaphor, And Constitutional Myth-Making, Robert L. Tsai

Faculty Scholarship

From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …

Proportionality Between Crimes, Offenses, And Punishments, James Headley

St. Thomas Law Review

Blackstone said of the Roman Empire, after it embraced unjust laws, "and then the Empire Fell. The United States Supreme Court embraces unjust laws and is inconsistent regarding substantive due process and proportionality in criminal cases, and substantive due process and proportionality in civil cases. The Due Process Clause and the Eighth Amendment's prohibition against cruel and unusual punishment require proportionality and fairness, meaning that the punishment must fit the crime, and that the penalty must be appropriate to the offense. Throughout a long history of jurisprudence, the Supreme Court has developed or embraced two varying theories of due process …

The Divergence Of Constitutional And Statutory Interpretation, Kevin M. Stack

University of Colorado Law Review

No abstract provided.

Requiem, Henry Paul Monaghan

Faculty Scholarship

Besides being brief, it is not apparent what one should say. No doubt due to my own upbringing, I cannot view this an occasion for a celebration of a life that ended just a handful of hours ago. Nor do I view this an occasion for a discussion of John's work. The New York Times provided a splendid account of that. I would add only that John received an honorary LL.D. from Yale six months ago. The opening sentence of the accompanying citation said it all: "Your work set the standard for constitutional law scholarship for our generation." I am …

With Strings Attached: The Limits On Local Control, Richard Briffault

Faculty Scholarship

In a December 2003 decision, a Colorado trial court judge invalidated the state's new school voucher program. The decision was unusual in that the court relied not on traditional separation-of-church-and-state concerns, but instead on a provision of the Colorado state constitution that vests control over public education in local school boards. The court held that by failing to give local school boards any" input whatsoever into the instruction to be offered by the private schools" that accepted voucher students, the state had violated the constitutional provision that grants local boards "control of instruction in the public schools of their respective …

Foreword: The Ohio Constitution On The Occasion Of Its Bicentennial, Kevin F. O'Neill

Law Faculty Articles and Essays

This symposium issue of the Cleveland State Law Review publishes the papers that were presented at a conference marking the bicentennial of the Ohio Constitution. That conference, held here at Cleveland-Marshall College of Law in April 2003, examined the history and assessed the vitality of our state constitution. The conference was conceived and its planning was supervised by our Dean, Steven H. Steinglass, who has devoted significant scholarly attention to the Ohio Constitution. In light of my own endeavors in state constitutional law, both as a lawyer and as a scholar, I gladly assisted Dean Steinglass in organizing the conference. …

Rethinking The Role Of The Dormant Commerce Clause In State Tax Jurisdiction, Bradley W. Joondeph

Faculty Publications

Perhaps the biggest controversy in state and local taxation today concerns the constitutional authority of the states to impose taxes on goods purchased over the Internet. Some argue that the current, bright-line rule of "physical presence" is the appropriate standard for determining a state's jurisdiction under the dormant Commerce Clause. Others contend that jurisdiction should instead be resolved on the more pragmatic basis of a firm's "economic presence" in the taxing state. Regardless, commentators seem to agree that the dormant Commerce Clause imposes jurisdictional limits on state taxation; the dispute concerns the content of those standards. This article contends that …

Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam

Articles

In comparative constitutional discourse, Americans are from Mars and Europeans from Venus; we eagerly tell our European counterparts about the U.S. constitutional experience, but rarely do we listen when they talk to us about their own. Whereas Europeans routinely examine U.S. constitutionalism as an illuminating point of comparison or contrast, as Americans, we seem convinced that we have nothing to learn from looking abroad. This Article challenges that assumption. In particular, it argues that American courts and scholars have overlooked an important alternative to the dominant interpretation of the division of powers in the United States by ignoring the theory …

Fun With Dick And Jane And Lawrence: A Primer On Education Privacy As Constitutional Liberty, Susan P. Stuart

Law Faculty Publications

No abstract provided.

Aboilishing The Texas Jury Shuffle., Michael M. Gallgher

St. Mary's Law Journal

This Article argues that the Texas Legislature should abolish the jury shuffle and join the other forty-nine states who have already done so. The jury shuffle, when requested, is a procedure which results in a random shuffling of the names of the jury pool members. Texas attorneys currently possess an entirely cost and risk free procedure through which they can discriminate against potential jurors on the basis of race, gender, ethnicity, or anything else that suits their fancy. An attorney can request a jury shuffle without stating a reason and a judge cannot ask why a shuffle was requested or …

School Voucher Programs: Has The Supreme Court Pulled Up The Gangplank To Establishment Clause Challenges., Cecil C. Kuhne Iii

St. Mary's Law Journal

The Establishment Clause is not violated when a program is neutral toward religion and provides assistance directly to a broad class of citizens, who in turn voluntarily direct the aid to religious schools. A program containing these features permits government aid to reach religious institutions only thru the deliberate choices of individuals. Any incidental advancement or endorsement of religion is attributable to the individual recipient—not the government, which simply acts as a disburser. In Zelman v. Simmons-Harris, the Supreme Court reiterated this rationale from a twenty-year line of cases. Zelman is a death knell for Establishment Clause challenges to carefully …

Article Iii And The Cause Of Action, Anthony J. Bellia Jr.

Journal Articles

This Article undertakes a systematic exploration of the concept of the "cause of action" as it is used by courts and scholars in making arguments about the scope of the federal judicial power. The concept of the cause of action figures prominently in debates about such fundamental questions as what kinds of cases Congress may empower federal courts to adjudicate (jurisdiction), who may initiate a case in federal court (standing), and when a federal court may afford a plaintiff a private remedy for the violation of a federal regulatory scheme (implied rights of action). Federal courts have answered these questions, …

Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard W. Garnett

Journal Articles

Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents hazards of its own, and its premises - if …

Misusing International Sources To Interpret The Constituion, Roger P. Alford

Journal Articles

This article addresses the trend toward using international sources to interpret the Constitution. While recognizing that international sources may be appropriately used as persuasive authority in certain types of constitutional analysis, this article argues that such reliance is inappropriate if done improperly. There are four misuses of international sources that serve as the focus of the article.

The first misuse of international sources - particularly evident in death penalty litigation - occurs when the global opinions of humankind are ascribed constitutional value to thwart the domestic opinions of Americans. The article suggests that international norms cannot be internalized within our …

Diversity And The Practice Of Interest Assessment, Robert F. Nagel

Publications

No abstract provided.

Speech And Strife, Robert L. Tsai

Faculty Scholarship

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, I argue 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, I distinguish between formal legal argumentation …

Constitutional Hardball, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

For the past several years I have been noticing a phenomenon that seems to me new in my lifetime as a scholar of constitutional law. I call the phenomenon constitutional hardball. This Essay develops the idea that there is such a practice, that there is a sense in which it is new, and that its emergence (or re-emergence) is interesting because it signals that political actors understand that they are in a position to put in place a new set of deep institutional arrangements of a sort I call a constitutional order. A shorthand sketch of constitutional hardball is this: …

Reconstruction And Constitution Building In Iraq, A. Kevin Reinhart, Gilbert S. Merritt

Vanderbilt Journal of Transnational Law

I would like to thank Vanderbilt Law School and all of the many sponsors for the invitation, and especially the Foreign Service Legal Society whose officers worked so hard to put this together. I appreciate very much the opportunity to talk to you all about Iraq. I need to begin with sort of a prelude: the things that were part of my training are in a way irrelevant to what I was doing this summer. I was not there in a professional capacity, as an Islamicist; I was there instead as a volunteer for the International Rescue Committee (IRC). I …

Political Questions And Political Remedies, Jonathan R. Siegel

GW Law Faculty Publications & Other Works

Defenders of the political question doctrine sometimes observe that the lack of a judicial remedy for a constitutional violation does not deprive injured parties of all remedy, because injured parties can pursue a political or an electoral remedy - they can seek relief at the ballot box or in the political process. This essay criticizes that argument. Political and electoral remedies for constitutional violations are ineffective for important practical and theoretical reasons that grow out of the different structures of the judicial, political, and electoral processes. The judicial process focuses each case on a particular issue; candidates in elections always …

John Ely: The Harvard Years, Henry Paul Monaghan

Faculty Scholarship

John Ely's life ended too soon, on October 25, a few weeks before his sixty-fifth birthday. Six months earlier, Yale had awarded him an honorary Doctor of Laws. The citation accompanying the award stated, "Your work set the standard for constitutional scholarship for our generation." It is, I believe, particularly appropriate that this Law Review dedicate an issue to John's memory. John taught at Harvard Law School from 1973 to 1982. During that time he produced his signature work, Democracy and Distrust, and the articles most closely associated with his name, several of which appeared in this Review.

Madisonian Equal Protection, James S. Liebman, Brandon L. Garrett

Faculty Scholarship

James Madison is considered the "Father of the Constitution," but his progeny disappointed him. It had no effective defense against self-government's "mortal disease" – the oppression of minorities by local majorities. This Article explores Madison's writings in an effort to reclaim the deep conception of equal protection at the core of his constitutional aspirations. At the Convention, Madison passionately advocated a radical structural approach to equal protection under which the "extended republic's" broadly focused legislature would have monitored local laws and vetoed those that were parochial and "unjust." Rejecting this proposal to structure equal protection into the "interior" operation of …