Constitutional Law Commons^™

Implementing A New City Charter: Thoughts On My Tenure As Corporation Counsel In A Time Of Transition, O. Peter Sherwood

NYLS Law Review

No abstract provided.

Roth At Fifty: Reconsidering The Common Law Antecedents Of American Obscenity Doctrine, 41 J. Marshall L. Rev. 393 (2008), James R. Alexander

UIC Law Review

No abstract provided.

Heller And Insurrectionism, Carl Bogus

Law Faculty Scholarship

No abstract provided.

“Equality, I Spoke Th At Word/As If A Wedding Vow”: Mental Disability Law And How We Treat Marginalized Persons, Michael J. Perlin, John Douard

NYLS Law Review

No abstract provided.

Sex Offender As Scapegoat: The Monstrous Other Within, John Douard

NYLS Law Review

No abstract provided.

Reflections On My Years As Corporation Counsel, Peter L. Zimroth

NYLS Law Review

No abstract provided.

The New York City Corporation Counsel: The Best Legal Job In America, Michael A. Cardozo

NYLS Law Review

No abstract provided.

Chi Iota Colony Of Alpha Epsilon Pi Fraternity V. City University Of New York, Clinton N. Daggan

NYLS Law Review

No abstract provided.

From John F. Kennedy’S 1960 Campaign Speech To Christian Supremacy: Religion In Modern Presidential Politics, Stephen A. Newman

NYLS Law Review

No abstract provided.

Constitutional Law And Values—Version ’08 (Not Necessarily An Upgrade), Nadine Strossen

NYLS Law Review

No abstract provided.

Procedural Common Law, Amy Coney Barrett

Journal Articles

Debates about the common lawmaking power of the federal courts focus exclusively on substantive common law. But federal common law is not limited to matters of substance; it reaches matters of procedure as well. Federal law includes a robust body of what might be called procedural common law - common law primarily concerned with the regulation of internal court processes rather than substantive rights and obligations. This body of law includes many doctrines that are fixtures in the law of procedure and federal courts. For example, abstention, forum non conveniens, remittitur, stare decisis, and preclusion can all fairly be characterized …

The Inescapable Federalism Of The Ninth Amendment, Kurt T. Lash

Law Faculty Publications

Over the past two decades, the most influential work on the Ninth Amendment has been that of libertarian scholar Randy Barnett. Over a series of articles and books, Barnett has presented the Ninth as a provision originally intended to preserve individual natural rights. Recently uncovered historical evidence, however, suggests that the Ninth originally limited federal power in order to preserve the right to local self-government. I presented this evidence in two articles published by the Texas Law Review, the first dealing with the original meaning of the Ninth Amendment, and the second dealing with a heretofore lost jurisprudence of the …

Enhanced Protections For Geographical Indications Under Trips: Potential Conflicts Under The U.S. Constitutional And Statutory Regimes, David Snyder

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Dole’S Future: A Strategic Analysis, Neil S. Siegel

Faculty Scholarship

As the U.S. Supreme Court imposes federalism-based limits on congressional power under the Commerce Clause and Section Five of the Fourteenth Amendment, Congress may be tempted to turn to the conditional spending power in order to achieve goals that it may not accomplish directly. In this article, I address whether a danger exists, as some suggest, that such use of the Spending Clause would render the Court more likely to cut back on its scope, narrowing or overruling South Dakota v. Dole, 483 U.S. 203 (1987). Using doctrinal analysis and game theory, I conclude that Congress should proceed with …

Scrutiny Land, Randy E. Barnett

Michigan Law Review

Scrutiny Land is the place where government needs to justify to a court its restrictions on the liberties of the people. In the 1930s, the Supreme Court began limiting access to Scrutiny Land. While the New Deal Court merely shifted the burden to those challenging a law to show that a restriction of liberty is irrational, the Warren Court made the presumption of constitutionality effectively irrebuttable. After this, only one road to Scrutiny Land remained: showing that the liberty being restricted was a fundamental right. The Glucksberg Two-Step, however, limited the doctrine of fundamental rights to those (1) narrowly defined …

Judicial Compensation And The Definition Of Judicial Power In The Early Republic, James E. Pfander

Michigan Law Review

Article III's provision for the compensation of federal judges has been much celebrated for the no-diminution provision that forecloses judicial pay cuts. But other features of Article Ill's compensation provision have largely escaped notice. In particular, little attention has been paid to the framers' apparent expectation that Congress would compensate federal judges with salaries alone, payable from the treasury at stated times. Article III's presumption in favor of salary-based compensation may rule out fee-based compensation, which was a common form of judicial compensation in England and the colonies but had grown controversial by the time of the framing. Among other …

On Federalism, Freedom, And The Founders' View Of Retained Rights - A Reply To Randy Barnett, Kurt T. Lash

Law Faculty Publications

In A Textual-Historical Theory of the Ninth Amendment, 60 Stanford Law Review, I explain how some of the most common theories of the Ninth Amendment either have nothing to do with the actual text of the Amendment or place the text in conflict with similar terms in the Tenth Amendment. Focusing on the actual words of the Amendment, I argue that the text of the Ninth point towards a federalist rule of construction in which the people's retained rights are necessarily left to the control of the collective people in the several states. I also explain how this reading fits …

"The Perpetuation Of Our Political Institutions": Lincoln, The Powers Of The Commander In Chief, And The Constitution, Michael Les Benedict

Cardozo Law Review

No abstract provided.

Franklin D. Roosevelt, Commander In Chief, Elizabeth L. Hillman

Cardozo Law Review

No abstract provided.

The Calling Forth Clause And The Domestic Commander In Chief, Stephen I. Vladeck

Cardozo Law Review

No abstract provided.

International Delegations And The Values Of Federalism, Neil S. Siegel

Faculty Scholarship

Among U.S. legal scholars who specialize in foreign relations law, there is a growing debate about the constitutional implications of international delegations. Almost all of this debate has focused on separation-of-powers issues (especially the non-delegation doctrine and the Appointments Clause), as well as on Article III concerns. A prominent exception is Edward Swaine's provocative argument that international delegations diffuse political power and thereby vindicate the values of federalism. Federalism, Swaine submits, superficially looks like a reason to dislike international delegations (and [it] plays that role in national discourse about international engagements), but [it] in fact provides a strong warrant in …

Constitutional Possibilities, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

What are our constitutional possibilities? The importance of this question is illustrated by the striking breadth of recent discussions, ranging from the interpretation of the United States Constitution as a guarantee of fundamental economic equality and proposals to restore the lost constitution to arguments for the virtual abandonment of structural provisions of the Constitution of 1789. Such proposals are conventionally understood as placing constitutional options on the table as real options for constitutional change. Normative constitutional theory asks the question whether these options are desirable--whether political actors (citizens, legislators, executives, or judges) should take action to bring about their plans …

Taking Text Too Seriously: Modern Textualism, Original Meaning, And The Case Of Amar's Bill Of Rights, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Championed on the Supreme Court by Justices Scalia and Thomas and championed in academia most prominently by Professor Akhil Amar, textualism has in the past twenty years emerged as a leading school of constitutional interpretation. Textualists argue that the Constitution should be interpreted in accordance with its original public meaning and, in seeking that meaning, they closely parse the Constitution's words and grammar and the placement of clauses in the document. They have assumed that this close parsing recaptures original meaning, but, perhaps because it seems obviously correct, that assumption has neither been defended nor challenged. This article uses Professor …

Petitioner's Observations (December 2007) For The Redress Of Violations Of Human Rights Guaranteed By The American Declaration Of The Rights And Duties Of Man, Inter-American Commission On Human Rights, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Constitutional Law—Equal Protection & Due Process—Is The Arkansas Supreme Court Abandoning Judicial Federalism?, Alexander Justiss

University of Arkansas at Little Rock Law Review

This note examines the history of judicial federalism by discussing the history of its use, as well as the analytical models that have been produced by its various adoptive jurisdictions. The development of these models has given courts much authority in determining the scope of individual rights within their respective jurisdictions. Further, a discussion follows that explores the criticisms directed at the use of such authority.

This note also examines the Arkansas Supreme Court's adoption and use of judicial federalism as a necessary safeguard against governmental infringements on individual rights, particularly those involving the right to privacy. Although such cases …

Umpires At Bat: On Integration And Legitimation, Neil S. Siegel

Faculty Scholarship

During his confirmation hearings. Chief Justice Roberts captured the public's imagination when he offered an interpretation of the role that judges play in our society when interpreting the Constitution. Judges and Justices are servants of the law, not the other way around, he said. Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see an umpire.

In this inquiry, I identify some tensions between the …

Rule Of Law Conference: Global Issues And The Rule Of Law, Lord Chief Justice Nicholas Phillips Of Worth Matravers

University of Richmond Law Review

No abstract provided.

Brief Of Legal Historians As Amici Curiae In Support Of Petitioners, Boumediene V. Bush, Nos. 06-1195, 06-1196 (U.S. Aug. 24, 2007), James Oldham

U.S. Supreme Court Briefs

No abstract provided.

A Quandary In Law? A (Qualified) Catholic Denial, Patrick Mckinley Brennan

Working Paper Series

A contribution to the second law review symposium dedicated to Steven Smith’s Law’s Quandary (Harvard 2004), this paper asks whether the “quandary” in which Smith finds modern law and jurisprudence is not, at least in part, the consequence of misunderstanding the classical natural law jurisprudence. The paper advances an interpretation of natural law according to which the natural law is the human person’s “participation” in the eternal law itself, with literally cosmic consequences for how we understand the ends and measures of human lawmaking. Mounting an argument against Justice Scalia’s thesis that “God applies the natural law,” the paper goes …

Harmonizing Plural Societies: The Cases Of Lasallians, Families, Schools – And The Poor, Patrick Mckinley Brennan

Working Paper Series

The modern state characteristically assumes or asserts a monopoly over “group persons” and their right to exist; group persons are said to exist at the pleasure or concession of the state. According to Catholic social teaching, by contrast, these unities of order -- such as church and family, as well as corporations and schools and the like -- are, at least in potency, ontologically prior to the state. Such group persons both constitute conditions of the possibility of human flourishing and, correlatively, impose limitations on the “sovereign” state. Such group persons are not mere concessions of an unbounded state: They …