Constitutional Law Commons^™

Constitutional Hardball, 37 J. Marshall L. Rev. 523 (2004), Mark Tushnet

UIC Law Review

No abstract provided.

Judicial Independence In Virginia, W. Hamilton Bryson

University of Richmond Law Review

No abstract provided.

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: …

The Political Origins Of The New Constitutionalism, Ran Hirschl

Indiana Journal of Global Legal Studies

Globalization, Courts, and Judicial Power Symposium

Of Platonic Guardians, Trust, And Equality: A Comment On Hasen's Minimalist Approach To The Law Of Elections, Luis Fuentes-Rohwer

Articles by Maurer Faculty

No abstract provided.

The Most Rational Branch: Guinn V. Legislature And The Judiciary's Role As Helpful Arbiter Of Conflict, Jeffrey W. Stempel

Scholarly Works

When the Nevada Supreme Court decided Guinn v. Legislature, one would have thought from reading the popular press accounts that the court had forcibly displaced the State legislature by means of a violent coup d'etat. Newspaper accounts of the decision referred to it as a usurpation of power in violation of clear constitutional language, belittling the court in language sometimes more appropriate to the baseball bleachers than to serious editorial commentary. Following suit, politicized elements of the citizenry began a recall effort (seemingly unsuccessful as of this writing) directed at the court as well as joining the chorus of criticisms. …

The Secret Life Of The Political Question Doctrine, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

"Questions, in their nature political, or which are, by the constitution and laws, submitted to the executive, can never be made in this court."

The irony, of course, is that Marbury v. Madison, itself, "made" a political question, and the answer the Court gave was deeply political as well. As everyone reading this essay knows, the case arose out of a bitter political controversy, and the opinion for the Court was a carefully crafted political document - "a masterwork of indirection," according to Robert McCloskey's well-known characterization, "a brilliant example of Chief Justice Marshall's capacity to sidestep danger while seeming …

The International Video Industry: Principles For Vertical Agreements And Integration, John H. Barton

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Defining Democracy: The Supreme Court's Campaign Finance Dilemma, Lori A. Ringhand

Scholarly Works

On December 10, 2003 the United States Supreme Court issued its decision in McConnell v. FEC. In McConnell, the Court was asked to determine the constitutionality of the Bipartisan Campaign Reform Act ("BCRA"). A divided Court, in a deeply fractured decision in which six justices wrote individual opinions, upheld the major provisions of the legislation. Yet despite the almost 300 pages of reasoning provided by the Court, and a voluminous record developed by the district court, the Justices could not agree on what purportedly is the central issue in campaign finance law: whether the challenged regulations were necessary …

Peoples Union For Civil Liberties V Union Of India: Is Indian Democracy Dependent On A Statute?, Shubhankar Dam

Research Collection Yong Pung How School Of Law

What is the status of a right to vote in the Indian legal system? Is the right a constitutional/fundamental right? Or is it simply a statutory right? Contrary to the decisions of the Supreme Court in the last five decades, this paper argues that the right to vote is a constitutional right: its textual foundation may be located in Article 326. And, in this sense, the Supreme Court has erred in construing the right to vote as a statutory right under the Representation of Peoples Act, 1951. Interpreting the right to vote as a statutory right has larger implications for …

Not For Attribution: Government's Interest In Protecting The Integrity Of Its Own Expression, Helen Norton

Publications

Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers' views are not mistakenly attributed to the government. Consider, for example, Virginia's efforts to ban the Sons of Confederate Veterans' display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of "hate" or "heritage," Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier "VIRGINIA." The Fourth Circuit was unpersuaded, holding that the …

Progressivist Origins Of The 2003 California Gubernatorial Recall, Kira L. Klatchko

ExpressO

Progressivist Origins of the 2003 California Gubernatorial Recall, was written in Sacramento in the midst of the first statewide recall of an elected official in California. The paper explores the nature of the recall procedure and its implementation in the state, and is chiefly an inquiry into the relatedness of the current incarnation and its Progressivist root. It focuses particularly on the recall of Governor Gray Davis, and details how shifting attitudes towards public participation have altered the procedure over time.

Say Cheese: The Constitutionality Of State-Mandated Airtime On Public Broadcasting Stations In Wisconsin, Andrew D. Cotlar

Federal Communications Law Journal

Last year, the State of Wisconsin passed legislation which would require statechartered public broadcasting television networks to carry political advertising for candidates free of charge. In this article, Andrew Cotlar raises many concerns about the wisdom of such legislation and the impact this trend may have on public broadcasters throughout the nation. The author begins by analyzing the current position of the law on political access requirements, at both federal and state levels, and then argues that the public television stations should continue to be free to exercise substantial editorial discretion. The Article proceeds to critique the Wisconsin statute as …

The War Powers In Brief: On The Irreducible Politics Of The Matter, Roger Pilon

Cardozo Public Law, Policy & Ethics Journal

The article argues that the president does not require congressional authorization under the Declare War Clause to engage in hostile acts, as the Constitution's sparse language on war powers intentionally allows flexibility in foreign affairs. It contends that the Declare War Clause is a juridical act, not a prerequisite for initiating hostilities, and that the war powers are fundamentally political rather than legal in nature.

Trial Of The Accused Taliban And Al Qaeda Operatives Captured In Afghanistan And Detained On A U.S. Military Base In Cuba, Jaime Jackson

ExpressO

A timely piece proposing solutions for issues certain to be raised in the upcoming trials of the accused Taliban and Al Qaeda operatives captured in Afghanistan and detained on a U.S. military base in Cuba. In the article, I begin by examining the history and jurisdiction of Article I and Article III courts and then address the history and structure of the Al Qaeda and Taliban regimes. After considering the Constitution, federal statutes, politics, and geographical limitations, I conclude that Al Qaeda detainees should be tried in Article III courts under terrorism statutes and Taliban detainees, as military combatants, should …

Executing The Laws Or Executing An Agenda: Usurpation Of Statutory And Constitutional Rights By The Department Of Justice, Christopher C. Sabis

University of Michigan Journal of Law Reform

The Department ofJustice (DOJ) can compel individuals and entities to sacrifice their constitutional or statutory rights. The DOJ can do so through brute political force, settlements and consent decrees, selective statutory enforcement, and prosecutions that coerce future actors not to pursue goals contrary to the policy desires of the executive branch. The current regime provides few constraints on the DOJ's ability to abuse its legal authority to achieve political objectives. This unbridled power jeopardizes the rights of both opposing and third parties.

This Note examines, in a bipartisan manner, the methods the Justice Department employs that deprive opponents or third …

Toward A Unifying Theory Of The Separation Of Powers, Bruce G. Peabody, John D. Nugent

American University Law Review

No abstract provided.

The Perils Of "Consensus": Hans Kelsen And The Legal Philosophy Of The United Nations, J. Peter Pham

ExpressO

Recently the United States and a number of its traditional allies have clashed over a variety of foreign policy issues that are profoundly juridical: the authority for war and peace, the International Criminal Court, etc. The source of these recent tensions is to be located at a level deeper than that of narrow national interests and specific policies. Rather, they arise from significant differences concerning the nature of "consensus" and, ultimately, legal philosophy. While the United Nations and many other international organizations derive their legal visions from the philosophy of law of Hans Kelsen (1881-1973), one of the most important …

Campaign Finance Reform: Central Meaning And A New Approach, Mark C. Alexander

Washington and Lee Law Review

No abstract provided.

Aaron Burr And The Electoral Tie Of 1801: Strict Constitutional Construction, Jennifer Van Bergen

Cardozo Public Law, Policy & Ethics Journal

The article challenges the traditional portrayal of Aaron Burr as a schemer in the 1801 electoral tie, arguing that Burr acted with constitutional integrity and principle, unlike Thomas Jefferson, who resorted to political deals. Burr's strict adherence to the Constitution and his refusal to interfere with the electoral process are framed as honorable, while Jefferson's actions are criticized as unconstitutional. The analysis suggests that Burr has been unfairly vilified and offers a counter-narrative to the conventional view of Burr as a villain, emphasizing his commitment to constitutional principles over party loyalty.

Assassination, The War On Terrorism, And The Constitution, Rodney A. Smolla

University of Richmond Law Review

No abstract provided.

It's Not Really "Assassination": Legal And Moral Implications Of Intentionally Targeting Terrorists And Aggressor-State Regime Elites, Robert F. Turner

University of Richmond Law Review

No abstract provided.

Proposal For A New Executive Order On Assassination, Jeffrey F. Addicott

University of Richmond Law Review

No abstract provided.

Targeted Killing And Assassination: The U.S. Legal Framework, William C. Banks, Peter Raven-Hansen

University of Richmond Law Review

No abstract provided.

Pressure Of The Popular: Presidential Prestige And The High Court, Timothy W. Clark

William Mitchell Law Review

Review of Popular Justice: Presidential Prestige and Executive Success in the Supreme Court. By Jeff Yates. State University of New York Press, 2002. 131 pages. $17.95.

Corporate Advertising's Democracy, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

The Promise Of Democracy, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

The Freedom Of Information Act Post-9/11: Balancing The Public's Right To Know, Critical Infrastructure Protection, And Homeland Security, Kristen Elizabeth Uhl

American University Law Review

No abstract provided.

The Twenty-Eighth Amendment: Why The Constitution Should Be Amended To Grant Congress The Power To Legislate In Furtherance Of The General Welfare, 36 J. Marshall L. Rev. 327 (2003), Casey L. Westover

UIC Law Review

No abstract provided.

The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca

Law Faculty Scholarly Articles

Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making adoption of a budget a difficult task for the legislature. This Article focuses on the budget crisis in the Commonwealth of Kentucky from 2002 through 2003. In Part I, this Article recapitulates the history of the spending plan, including the action filed in Franklin Circuit Court to affirm its constitutionality. In Part II, this Article discusses certain theoretical, historical, and legal principles that inform analysis of the plan. In Part III, it considers certain deviations and …