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Articles 2311 - 2340 of 3544
Full-Text Articles in Law
Constitutional Legitimacy, Randy E. Barnett
Constitutional Legitimacy, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) f laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed …
Understanding The Rehnquist Court: An Admiring Reply To Professor Merril, Erwin Chemerinsky
Understanding The Rehnquist Court: An Admiring Reply To Professor Merril, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
Constitutional Borrowing And Nonborrowing, Lee Epstein, Jack Knight
Constitutional Borrowing And Nonborrowing, Lee Epstein, Jack Knight
Faculty Scholarship
No abstract provided.
Constitutional Existence Conditions And Judicial Review, Matthew D. Adler, Michael C. Dorf
Constitutional Existence Conditions And Judicial Review, Matthew D. Adler, Michael C. Dorf
Faculty Scholarship
Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision …
Hair Today, Gone Tomorrow: Equine Cosmetic Crimes And Other Tails Of Woe, Sandra Tozzini
Hair Today, Gone Tomorrow: Equine Cosmetic Crimes And Other Tails Of Woe, Sandra Tozzini
Animal Law Review
Many invasive procedures, including surgery, are performed on horses’ tails purely for cosmetic reasons. These procedures fall into a variety of categories from the arguably unethical to the undoubtedly criminal. Although criminal laws prohibiting certain cosmetic surgeries have been in existence for approximately one hundred years, they rarely have been enforced. This article reviews the current status of both American and international “anti-cosmetic” statutes, focusing on the constitutional problems that the current American statutes raise. The article proposes a model federal statute that is constitutionally sound, addresses all forms of cosmetic tail procedures, and provides a vehicle for enforcement.
International Delegations, The Structural Constitution, And Non-Self-Execution, Curtis A. Bradley
International Delegations, The Structural Constitution, And Non-Self-Execution, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
The Dawn Of Religious Freedom In South Carolina: The Journey From Limited Tolerance To Constitutional Right, James L. Underwood
The Dawn Of Religious Freedom In South Carolina: The Journey From Limited Tolerance To Constitutional Right, James L. Underwood
South Carolina Law Review
No abstract provided.
Architexture, Akhil Reed Amar
Architexture, Akhil Reed Amar
Indiana Law Journal
Addison C. Harris Lecture, March 20, 2002
The Right Of The People To Keep And Bear Arms Shall Not Be Litigated Away: Constitutional Implications Of Municipal Lawsuits Against The Gun Industry, William L. Mccoskey
The Right Of The People To Keep And Bear Arms Shall Not Be Litigated Away: Constitutional Implications Of Municipal Lawsuits Against The Gun Industry, William L. Mccoskey
Indiana Law Journal
No abstract provided.
The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley
The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley
Scholarly Publications
No abstract provided.
Australasian Law And Canadian Statutes In The Nineteenth Century: A Study Of The Movement Of Colonial Legislation Between Jurisdictions, Jeremy Finn
Dalhousie Law Journal
This paper considers the use between 1850 and 1900 by Anglo-Canadian legislatures of legislative precedents from the Australian and New Zealand colonies and argues that while a wide range of Australasian laws were considered by Canadian legislators, the most significant Australasian influences are to be found in mining law, electoral and constitutional law and land law The paper goes on to explore, by use of archival, parliamentary and published materials, the processes by which Canadian legislators acquired their knowledge of these Australasian initiatives. While governmental and institutional channels (including the Colonial Office) played a significant part in the transmission of …
The Logic Of Scarcity: Idle Spectrum As A First Amendment Violation, Stuart Minor Benjamin
The Logic Of Scarcity: Idle Spectrum As A First Amendment Violation, Stuart Minor Benjamin
Duke Law Journal
The Supreme Court has distinguished the regulation of radio spectrum from the regulation of printing presses, and applied more lenient scrutiny to the regulation of spectrum, based on its conclusion that the spectrum is unusually scarce. The Court has never confronted an allegation that government actions resulted in unused or underused frequencies, but there is good reason to believe that such government-created idle frequencies exist. Government limits on the number of printing presses almost assuredly would be subject to heightened scrutiny and would not survive such scrutiny. This Article addresses the question whether the scarcity rationale-or any other reasoning-supports distinguishing …
The Anticanonical Lesson Of Huckleberry Finn, Sharon E. Rush
The Anticanonical Lesson Of Huckleberry Finn, Sharon E. Rush
UF Law Faculty Publications
Some books included in the canon of American literature no longer belong there, because they presently lack normative approval. Adapting concepts found in constitutional law, an anticanon of American literature functions the way the anticanon of constitutional law would operate and explicitly removes books from the canon. In law, the anticanon identifies outdated interpretations of the constitution. In education, it is time to consider removing from the canon and placing in an anticanon books that are inconsistent with multicultural education. One such book is Mark Twain's Huckleberry Finn, which is part of the canon of American literature and viewed as …
Exchanging Constitutions: Constitutional Bricolage In Canada, David Schneiderman
Exchanging Constitutions: Constitutional Bricolage In Canada, David Schneiderman
Osgoode Hall Law Journal
Judicial recourse to constitutional law sources from abroad has been likened to the process of bricolage--coined by anthropologist Claude Lévi- Strauss, this refers to the "borrowing from materials readily at hand." Building on the idea of constitutional borrowing, this paper aims to take account of the role dominant political culture plays in constitutional interpretation, in particular, the values associated with economic globalization. If resort to comparative constitutional sources is on the rise, dominant political culture will likely have the effect of limiting the stock of tools available to judges. The author argues that, in an age of economic globalization, the …
Bush V. Gore And The French Revolution: A Tentative List Of Some Early Lessons, Sanford Levinson
Bush V. Gore And The French Revolution: A Tentative List Of Some Early Lessons, Sanford Levinson
Law and Contemporary Problems
Levinson examines the Supreme Court's decision in "Bush v. Gore" as an entry-point into understanding American constitutional culture. "Law," as people ordinarily think of it, may be much less important than people might believe (or hope) with regard to controlling politics. But "law" in another way may have Americans gripped within a constitutional iron cage that makes it next to impossible to engage in a cogent discussion of what might ail contemporary American polity and, concomitantly, what might be needed by way of reforms.
The Supply And Demand Sides Of Judicial Policy-Making (Or, Why Be So Positive About The Judicialization Of Politics?), Cornell W. Clayton
The Supply And Demand Sides Of Judicial Policy-Making (Or, Why Be So Positive About The Judicialization Of Politics?), Cornell W. Clayton
Law and Contemporary Problems
A major reason that many people are intensely interested in who sits on the Supreme Court is that legal decisions can have great influence on the effectuation or frustration of political objectives. Clayton does not view the trend toward the "judicialization" of politics as necessarily antithetical to democratic values because Court decisions are within the mainstream of contemporary political values and electoral preferences.
Comment On Ferejohn’S “Judicializing Politics, Politicizing Law”, Michael C. Munger
Comment On Ferejohn’S “Judicializing Politics, Politicizing Law”, Michael C. Munger
Law and Contemporary Problems
Munger comments on John Ferejohn's recent article in which Ferejohn examines some key issues raised by the exercise of legislative power by the judicial branch. Ferejohn claims that Americans have chosen to accept the judicialization of politics, leaving the courts the option of exercising power inappropriately. Munger argues that while the courts do have power, they forebear from exercising it for long periods of time.
Deliberative Democracy’S Attempt To Turn Politics Into Law, Christopher H. Schroeder
Deliberative Democracy’S Attempt To Turn Politics Into Law, Christopher H. Schroeder
Law and Contemporary Problems
Deliberative democracy is one of the most discussed contemporary political theories. Schroeder argues that its central claim can be understood as the claim that politics needs to become more like law. While specific recommendations to make specific decision processes more deliberative are fair, the attempt to efface the distinctively non-lawlike attributes of politics entirely cannot withstand scrutiny.
Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai
Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai
American University Law Review
This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …
Telling Miller’S Tale: A Reply To David Yassky, Brannon P. Denning, Glenn H. Reynolds
Telling Miller’S Tale: A Reply To David Yassky, Brannon P. Denning, Glenn H. Reynolds
Law and Contemporary Problems
A recent article by Professor David Yassky suggests that there is a segment of legal academia that dissents from the Standard model and has started to generate alternatives to the Standard Model. Denning and Reynolds critique that part of Yassky's theory dismissing "United States v. Miller" as providing the basis for an individual rights interpretation of the Second Amendment.
Postcommunist Charters Of Rights In Europe And The U.S. Bill Of Rights, Wojciech Sadurski
Postcommunist Charters Of Rights In Europe And The U.S. Bill Of Rights, Wojciech Sadurski
Law and Contemporary Problems
The Bill of Rights of the US Constitution served as both a model and anti-model for the constitutionalization of citizens' rights in the new democracies emerging after the fall of communism in Central and Eastern Europe. The most striking contrast between the US Bill of Rights and postcommunist constitutional charters of rights is the absence in the former, and the inclusion in the latter, of catalogues of so-called "positive," socioeconomic rights.
The Bill Of Rights And The Emerging Democracies, Jacek Kurczewski, Barry Sullivan
The Bill Of Rights And The Emerging Democracies, Jacek Kurczewski, Barry Sullivan
Law and Contemporary Problems
Today, the influence of the US Bill of Rights can be traced through its remote offspring, including the Helsinki Agreement, the German Basic Law, the post-war French constitutions, and the European Convention on Human Rights. These documents have influenced recent developments in the emerging democracies of eastern and central Europe.
Joint Teaching With A Colleague, For Just A Week Or Two, Richard H. Seamon, Stephen A. Spitz
Joint Teaching With A Colleague, For Just A Week Or Two, Richard H. Seamon, Stephen A. Spitz
Journal of Legal Education
No abstract provided.
Loose Canons: Statutory Construction And The New Nondelegation Doctrine, David M. Driesen
Loose Canons: Statutory Construction And The New Nondelegation Doctrine, David M. Driesen
College of Law - Faculty Scholarship
This article asks whether courts or administrative agencies have constitutional authority to narrowly construe statutes to save them from truly serious nondelegation claims. It explains why the Court correctly rejected administrative saving construction in American Trucking Ass'ns v. Whitman, and why the rationale supporting this rejection applies to courts as well as to agencies. This article also questions recent arguments that the nondelegation doctrine has found a new and appropriate home among canons of statutory construction. Judicial saving construction could lead to great expansion of judicial authority to make public law at the expense of the more democratic branches of …
Begging The Court's Pardon: Justice Denied For The Poorest Of The Poor, Daniel M. Cohen
Begging The Court's Pardon: Justice Denied For The Poorest Of The Poor, Daniel M. Cohen
St. Thomas Law Review
Astonishing as it may seem, if Benjamin Franklin were alive today, and he sought to collect alms for the poor on Fort Lauderdale Beach, he would, by force of law, find himself summarily expelled from the area. If Mr. Franklin then returned, seeking thus to heed the call of his conscience to help the downtrodden and oppressed, the great statesman and Founding Father of the United States would find himself placed under arrest. For the City of Fort Lauderdale, with the imprimatur of the Eleventh Circuit Court of Appeal, has deemed it Right and Good that soliciting a passerby for …
A Defendant's Right To Exculpatory Evidence: Does The Constitutional Duty To Disclose Exculpatory Evidence Extend To New Evidence Discovered Post-Conviction, Todd E. Jaworksy
A Defendant's Right To Exculpatory Evidence: Does The Constitutional Duty To Disclose Exculpatory Evidence Extend To New Evidence Discovered Post-Conviction, Todd E. Jaworksy
St. Thomas Law Review
This note will first address Brady and the modifications made to the disclosure law by subsequent cases. Second, this note will explain the ethical obligations concerning a prosecutor's duty to disclose exculpatory evidence post-conviction as set out by the Model Rules of Professional Conduct. Third, this note will critically examine various case law in which the constitutional duty to disclose is seemingly extended to encompass post-conviction, newly discovered exculpatory evidence in the hands of the prosecutor. Finally, this note will conclude with an analysis and opinion of the disclosure law, discussing why the constitutional duty should be extended post-conviction.
Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai
Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai
Faculty Scholarship
This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …
The Alien Tort Statute And Article Iii, Curtis A. Bradley
The Alien Tort Statute And Article Iii, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
Does Federalism Advance Liberty?, Erwin Chemerinsky
Does Federalism Advance Liberty?, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
Drug Exceptionalism, Erik Luna