Law Commons^™

Inconsistencies In State Court Decisions Regarding Public School Financing Are Violating The Constitutional Rights Of Citizens: Why The Nevada Court In Shea V. State Should Have Intervened, Corinne Milnamow

University of Miami Law Review

In 1973, the Supreme Court decided the landmark case, San Antonio Independent School District v. Rodriguez, which held there was no fundamental right to education under the United States Constitution. In the years that have followed Rodriguez, state courts across the country have been left to decide issues related to public school financing. Many plaintiffs in these cases will argue that education is a fundamental right under their state’s constitution and that their respective state’s public school financing structure—one that heavily relies on local property taxes—is unconstitutional because of the discrepancies in the quality of education one will receive in …

Law Library Blog (October 2022): Legal Beagle's Blog Archive, Roger Williams University School Of Law

Law Library Newsletters/Blog

No abstract provided.

The Global Rise Of Judicial Review Since 1945, Steven G. Calabresi

Catholic University Law Review

This article expands upon the theory put forth in Professor Bruce Ackerman’s book, Revolutionary Constitutions: Charismatic Leadership and the Rule of Law, in which he posits that twentieth century revolutions in a variety of countries led to the constitutionalization of charisma, thus binding countries to the written constitutions established by their revolutionary leaders.

Constitutional law scholar, Steven G. Calabresi, argues here that world constitutionalism, in fact, existed prior to 1945, and what is especially striking about the post-1945 experience is that the constitutionalism of charisma included not only the adoption of written constitutions, but also the adoption of meaningful …

Do Democratic Constitutions Allow Unilateral Secession? A Contemplative Review Of Federal Models, Mohammed Abbas Mohsen

UAEU Law Journal

recognize any right of secession in their domestic constitutions, from through that constitutions expressly affirm the maintenance of the state's territorial integrity.

In this framework, how can we justify the secession of a territory from a democratic state our political system federalism, the question does not primarily concern a mutually agreed secession just, the question to be addressed in this paper is whether a unilateral secession could be justified in cases in which the parent state is a functioning democratic state; such a state.

Take into account might be some comparative constitutions are include constitutional right of secession, Many constitutions …

An Anishinaabe Tradition: Anishinaabe Constitutions In Ontario, Leaelle N. Derynck

Electronic Thesis and Dissertation Repository

Constitutionalism is an Anishinaabe legal tradition. This thesis explores modern Anishinaabe constitutions in Ontario, as they connect to traditional constitutionalism while meeting the unique governing needs of contemporary Anishinaabe First Nations communities. I address the scholarly and legal context in which these constitutional documents have been produced and shed an empirical light on these understudied legal instruments. Two questions shape this thesis: 1) what are the defining characteristics of Anishinaabe constitutions in Ontario; and, 2) what is their function within Anishinaabe communities? To answer these questions, I review both ratified and draft Anishinaabe constitutional documents of member communities of the …

Transnational Constitution-Making: The Contribution Of The Venice Commission On Law And Democracy, Paul Craig

Articles by Maurer Faculty

Commission for Democracy through Law, better known as the Venice Commission. While part of the Council of Europe, the Venice Commission is much less understood than the European Court of Human Rights (ECHR), notwithstanding the existing literature. This chapter therefore seeks to explicate and evaluate. It begins by explicating the organizational foundations of the Venice Commission, followed by analysis of its remit and role. The focus then shifts to triggering and working methodology.

The remainder of the article is concerned with evaluation of the Commission’s role in relation to constitution-making as broadly conceived, the analysis being situated within the literature …

Constitutions As Counter-Curses: Revenue Allocation And The Resource Curse, Tom Brower

Journal of Law and Policy

The resource curse—the paradoxical relationship between natural resource abundances and poorer economic growth, weaker political institutions, and higher levels of conflict—remains one of the most confounding issues in international development. Although the literature has proffered a plethora of institutional solutions to the resource curse, they have been vexed by a common theme: their unsuccessful implementation in developing countries without the proper institutional foundations that act as a bulwark against policy reversal and the perpetuation of rent-seeking behavior. This Article introduces constitutionally protected natural resource revenue allocation institutions as a superior mechanism for a state to allocate rents from natural resources. …

Ten Good Practices In Environmental Constitutionalism: Structure, Text And Justiciability, James May, Erin Daly

Erin Daly

Environmental constitutionalism is a relatively recent phenomenon at the confluence of constitutional law, international law, human rights, and environmental law. It embodies the recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts worldwide. This White Paper posits ten “good practices” – those attributes that make effective outcomes more likely, but not assured – in environmental constitutionalism for advancing positive environmental outcomes considering energy, and governance and sustainability. Good practices in environmental constitutionalism can serve as a useful construct for considering the relationship between sustainability, energy and governance. Accordingly, Section A …

Unpopular Constitutionalism, Mila Versteeg

Indiana Law Journal

Constitutions are commonly thought to express nations’ highest values. They are often proclaimed in the name of “We the People” and are regarded—by scholars and the general public alike—as an expression of the people’s views and values. This Article shows empirically that this widely held image of constitutions does not correspond with the reality of constitution making around the world. The Article contrasts the constitutional-rights choices of ninety countries between 1981 and 2010 with data from nearly one-half million survey responses on cultural, religious, and social values conducted over the same period. It finds, surprisingly, that in this period, the …

Fruit Of The Poisoned Vine? Some Comparative Observations On Chile’S Constitution, Tom Ginsburg

Tom Ginsburg

No abstract provided.

Misreading And Mobility In Constitutional Texts: A Nineteenth Century Case, Iza Hussin

Indiana Journal of Global Legal Studies

This article explores the case of the adoption of Southeast Asia's first constitution (Johor, 1895) to articulate a fundamental problem of translation-the ambiguity and multiplicity of law's language. Closer attention to this problem helps raise a number of possibilities for rethinking the relationship between law, language, and mobility: firstly, polyphony, dissonance, and divergence in law's language reveals a plethora of political possibilities, audiences, and actors in the making of law; secondly, these ambiguities and multiplicities are integral to law's mobility; thirdly, rather than transmissions of law from center to periphery, law moves in circulations that are iterative, contingent, and patterned. …

The Age Of Constitutions In The Americas, M C. Mirow

Faculty Publications

The late eighteenth and nineteenth centuries have been aptly called the “Age of Codifications.” The same period was also the Age of Constitutions. Although a great deal is known about the migration of prenational and transnational legal sources and ideas that led to national codes of civil and criminal law in Europe and the Americas, much less is known about similar processes on the constitutional level. Constitutional historians have been more parochial than their private law counterparts, most likely because of the relationship between constitutions and nations. In the light of independence, nations immediately needed constitutions to solidify gains and …

The Age Of Constitutions In The Americas, M. C. Mirow

M. C. Mirow

The Place Of The Judiciary In The Constitutional Culture Of New Zealand, Matthew S. R. Palmer Qc

The Hon Justice Matthew Palmer

New Zealand constitutional culture is dominated by the political branches of government: representative democracy and parliamentary sovereignty are perhaps the two most fundamental New Zealand constitutional norms. The judiciary has historically occupied an inferior, residual role with a relatively inaudible voice in constitutional dialogue. Against this context the paper explores the position of the judiciary in contemporary New Zealand constitutional culture. It concludes that it would take a striking judicial decision, consistent with public opinion, against government action, to invigorate popular support for the judicial branch of government. The normative prescription for the institutional health of the judicial branch is …

Ownership Without Citizenship: The Creation Of Noncitizen Property Rights, Allison Brownell Tirres

Michigan Journal of Race and Law

At the nation’s founding, the common law of property defined ownership as an incident of citizenship. Noncitizens were unable lawfully to hold, devise, or inherit property. This doctrine eroded during the course of the eighteenth and nineteenth centuries, but few scholars have examined its demise or the concommittant rise of property rights for foreigners. This Article is the first sustained treatment of the creation of property rights for noncitizens in American law. It uncovers two key sources for the rights that emerged during the nineteenth century: federal territorial law, which allowed for alien property ownership and alien suffrage, and state …

The Importance Of Free And Frank Advice From The Public Service, Matthew S. R. Palmer Qc

The Hon Justice Matthew Palmer

There has been a systematic diminution in the quality of policy advice in the New Zealand executive government between about 1998 and 2008. That has been associated with a diminution in the willingness of public servants to provide free and frank advice. Leadership at senior political and bureaucratic levels is required to address this as well as cultural change throughout the policy capacity of the New Zealand public service.

Stealth Constitutional Change And The Geography Of Law, Jill M. Fraley

Jill M. Fraley

Bruce Ackerman's recent book, The Decline and Fall of the American Republic, is a sudden shift from his previous scholarship on constitutional moments and the ability of social movements to generate minor revolutions. By acknowledging how constitutional change did not fit into his model of deliberate, deeply debated movements, Ackerman has shifted the scholarly lens to unintentional and unanticipated structural variations. Ackerman focuses his book on the political processes and events that have fostered potentially illegitimate constitutional remodeling. He acknowledges that certain features of legal scholarship have contributed to a lack of awareness of slow, structural drift, but he does …

Assessing The Strength Of The Rule Of Law In New Zealand, Matthew S. R. Palmer Qc

The Hon Justice Matthew Palmer

The rule of law is fundamental to New Zealand’s legal system but its content is inadequately understood and observed. This paper calls for the rule of law in New Zealand to be clarified, strengthened and applied. The article offers an essentialised conception of the rule of law that might cross ideological divides and assesses recent Acts of Parliament against that conception. Finally, the article comments on the place of the rule of law in New Zealand’s constitutional culture and calls for its strengthening by establishment of an independent means of assessing draft legislation for consistency with the rule of law.

We The Peoples: The Global Origins Of Constitutional Preambles, Tom Ginsburg, Daniel Rockmore, Nick Foti

Tom Ginsburg

No abstract provided.

A Sociology Of Constituent Power: The Political Code Of Transnational Societal Constitutions, Christopher Thornhill

Indiana Journal of Global Legal Studies

This article proceeds from a critical sociological revision of classical constitutional theory. In particular, it argues for a sociological reconstruction of the central concepts of constitutional theory: constituent power and rights. These concepts, it is proposed, first evolved as an internal reflexive dimension of the modern political system, which acted originally to stabilize the political system as a relatively autonomous aggregate of actors, adapted to the differentiated interfaces of a modern society.

This revision of classical constitutional theory provides a basis for a distinctive account of transnational constitutional pluralism or societal constitutionalism. The article argues that the construction of transnational …

The Future Of Societal Constitutionalism In The Age Of Acceleration, Riccardo Prandini

Indiana Journal of Global Legal Studies

The aim of this article is to reframe the debate on societal constitutionalism and constitutionalization from a spatial to a temporal framework. This analytical shift is due to the dramatic acceleration of societal processes, which are increasingly crossing the spatial boundaries of nation-states and of all the other social structures embedded in peculiar places. This high-speed society is characterized by the so-called temporalization of complexity, which influences every aspect of social life and, in particular, the "validity" of law. On the basis of this theoretical background, I would like to show that changing the form of observation from a spatial …

Private Governance Of Knowledge: Societally-Crafted Intellectual Properties Regimes, Dan Wielsch

Indiana Journal of Global Legal Studies

The evolutionary challenge global society faces is the decentralized development of legal rules that multilaterally protect social autonomies from violating each other. At the national level, democratic constitutions provide for the resolution of conflicts between different normative worlds, although the focus here is certainly on the protection of autonomies from political encroachment. However, political constitutions make sure that legal orders consider a plurality of normative perspectives. In contrast, international lawmaking can exclusively link to a specific social rationality, lacking any impartial forum for normative reconciliation. This is of special importance for the governance of intellectual resources. The incorporation of international …

Ministerial Responsibility And Chief Executive Accountability: The Implications Of The Better Public Services Reform Programme, Matthew S. R. Palmer Qc

The Hon Justice Matthew Palmer

Public Reporting Of Courts’ Performance – How Is This Best Achieved?, Matthew S.R. Palmer

The Hon Justice Matthew Palmer

In this address Matthew Palmer suggests: 1 The disclosure of information, probably more information than the judiciary feels comfortable disclosing, in a simple, straightforward, unvarnished way, is essential to the medium term constitutional legitimacy of the judiciary. 2 Judges, public servants and politicians speak different languages. Recognising the differences is the first step to a better understanding of, and communication with, each other and, perhaps to mitigating the potential for constitutional conflicts to get out of hand. 3 It’s not constitutionally appropriate for the executive or legislative branches of government to decide, over the wishes of the judiciary, on the …

The Rule That Proves The Exception: A Constitutional State Of Emergency In The United States, Benjamin Salvatore Difabbio

Senior Projects Spring 2013

A study of states of exception in constitutional law, this project proposes an amendment to the Constitution of the United States, providing for limited derogations of constitutional rights under declarations of emergency. The project begins with an analysis of US Supreme Court case law dealing with limitations of constitutional rights (e.g. suspension of the writ of habeas corpus and the freedoms of speech and press) during periods of crisis, such as war or the threat of war. This discussion demonstrates the perils of precedent in normalizing the exception in the absence of a constitutional state of emergency. The second chapter …

Dignity Rights: Courts, Constitutions, And The Worth Of The Human Person, Erin Daly

Erin Daly

The right to dignity is now recognized in most of the world's constitutions, and hardly a new constitution is adopted without it. Over the last sixty years, courts in Latin America, Europe, Asia, Africa, the Middle East, and North America have developed a robust jurisprudence of dignity on subjects as diverse as health care, imprisonment, privacy, education, culture, the environment, sexuality, and death. As the range and growing number of cases about dignity attest, it is invoked and recognized by courts far more frequently than other constitutional guarantees. Dignity Rights is the first book to explore the constitutional law of …

Stealth Constitutional Change And The Geography Of Law, Jill M. Fraley

Scholarly Articles

Bruce Ackerman's recent book, The Decline and Fall of the American Republic, is a sudden shift from his previous scholarship on constitutional moments and the ability of social movements to generate minor revolutions. By acknowledging how constitutional change did not fit into his model of deliberate, deeply debated movements, Ackerman has shifted the scholarly lens to unintentional and unanticipated structural variations. Ackerman focuses his book on the political processes and events that have fostered potentially illegitimate constitutional remodeling. He acknowledges that certain features of legal scholarship have contributed to a lack of awareness of slow, structural drift, but he …

Back To The Basics: Looking Again To State Constitutions For Guidance On Forming A More Perfect Vice Presidency, Jamin Soderstrom

Pepperdine Law Review

No abstract provided.

Constitutional Protection For Environmental Rights: The Benefits Of Environmental Process, Erin Daly

Erin Daly

More and more constitutions around the world -- from Bangladesh to Bolivia, and from the Philippines to the countries of the EU -- are explicitly protecting environmental rights and the values of a clean and healthy environment. In many instances, environmental rights are recognized not as substantive entitlements (which would allow litigants to sue if the government polluted their rivers or clearcut their forests), but as procedural rights. Examples of procedural rights include imposing on governments the obligation to consult with communities before they take actions that will affect their environment or giving individuals the right to participate in governmental …

Assessing The State Of The State Constitutionalism, Jim Rossi

Michigan Law Review

Robert Williams's The Law of American State Constitutions is an impressive career accomplishment for one of the leading academic lawyers writing on state constitutions. Given the need for a comprehensive, treatise-like treatment of state constitutions that transcends individual jurisdictions, Williams's book will almost certainly become the go-to treatise for the next generation of state constitutional law practitioners and scholars. The U.S. Constitution has a grip on how the American legal mind approaches issues in American constitutionalism, but an important recurring theme in Williams's work (as well as that of others) is how state constitutions present unique interpretive challenges. More than …