Constitutional Law Commons^™

Deterring Roper’S Juveniles: Why Immature Criminal Youth Require The Death Penalty More Than Adults – A Law & Economics Approach, Moin A. Yahya

ExpressO

In Roper v. Simmons, the United States Supreme Court declared the death penalty for juveniles unconstitutional. It relied on three reasons, one of which concerns this article, namely the theory that juveniles are less culpable and deterrable than adults. The Court relied on the American Medical Association’s amicus brief which purported to show scientifically that juveniles had less developed brains than adults. The Court characterized juveniles as being risk-lovers who highly preferred the present over the future, who loved gains no matter how risky but did not care for losses, and who could not engage in proper cost-benefit analysis, because …

States’ Rights And The Scope Of The Treaty Power: Could The Patriot Act Be Constitutional As A Treaty?, Simcha Herzog

The University of New Hampshire Law Review

[Excerpt] “Consider the following hypothetical scenario: after an appeal by the American Civil Liberties Union, the Supreme Court determines that the Patriot Act is unconstitutional. This decision so infuriates President Bush that he seeks out the advice of his legal counsel in a frantic attempt to bypass the Court’s ruling. After some research, President Bush’s legal advisers give him two options: he can either attempt to pass an amendment to the constitution or, with the “advice and consent of the Senate,” he can sign the Patriot Act as a treaty with a foreign nation. Either of these measures will evade …

Reflections On Diversity, William M. Tabb

Journal of Legal Education

No abstract provided.

The Law Teacher As Peacemaker: National Security In The Classroom, Stephen Dycus

Journal of Legal Education

No abstract provided.

Teaching National Security Law, Michael J. Glennon

Journal of Legal Education

No abstract provided.

Affirmative Action And The Decline Of Intellectual Culture, Charles W. Collier

Journal of Legal Education

No abstract provided.

The Other Students: Teaching The "War On Terror" To Nonlawyers, Juliette N. Kayyem

Journal of Legal Education

No abstract provided.

Water Justice In South Africa: Natural Resources Policy At The Intersection Of Human Rights, Economics, & Political Power, Rose Francis

ExpressO

This paper analyzes water as a social justice issue in South Africa, a nation that has undergone tremendous political and legal transformations over the last fifteen years, but whose population nonetheless continues to suffer from severe inequities in access to freshwater resources. In light of growing water scarcity worldwide, this paper highlights that legal treatment of water resources has significant socioeconomic and distributive justice impacts, even in progressive constitutional democracies that have embraced principles of human rights and international legal norms. The paper explores historical changes in South African water law and evaluates the current political and legal status of …

Judicial Confirmation Wars: Ideology And The Battle For The Federal Courts, Sheldon Goldman

University of Richmond Law Review

No abstract provided.

Judicial Selection As . . . Talk Radio, Michael J. Gerhardt

University of Richmond Law Review

No abstract provided.

What Is A Tragedy Of The Commons? Overfishing And The Campaign Spending Problem, Shi-Ling Hsu

ExpressO

Over the thirty-seven years since its publication, Garden Hardin's "Tragedy of the Commons" has clearly become one of the most influential writings of all time. The tragedy of the commons is one of those rare scholarly ideas that has had an enormous impact in academia and is also commonly used outside of academia. In legal scholarship, the tragedy of the commons has been used to characterize a wide variety of resource problems, including intellectual property rights, overcrowding of telecommunications spectra, air and water pollution, and of course, the classic environmental commons problem, overfishing. But I suggest this embarrassment of citation …

Just Blowing Smoke? Politics, Doctrine, And The Federalist Revival After Gonzales V. Raich, Ernest A. Young

Faculty Scholarship

No abstract provided.

Solving The Bargaining Democracy Problem Using A Constitutional Hierarchy Of Law, Clas Wihlborg

Business Faculty Articles and Research

In the “bargaining democracy” groups form coalitions that are able to grant benefits to themselves through legislation. These benefits may lack popular support. A constitutional hierarchy of conflicting laws is proposed to resolve this democratic problem. In the hierarchy more “rule-oriented” legislation dominate. The hierarchy would create a momentum of the political process towards more rule-oriented legislation and policy debate. The difficulty of defining a rule operationally is overcome by limiting the task of a constitutional court to simply rank conflicting policy actions in terms of criteria for rules.

The Continuous Struggle For Representation In The Venezuelan State, Gabriel Reyes

Honors Theses

One definition of democratic participation is a process whereby citizens influence or control those who make major decisions affecting them. Throughout Venezuela’s history, citizens have suffered under governments that aimed to limit their participation in the state. This research argues that the current Chávez regime, though seeking to concentrate power for itself in the executive branch, has also forged a space for democratic participation through its Barrio Adentro program.

In its introductory chapter, this paper examines Venezuela’s political development through a comparative lens and aims to situate Barrio Adentro within the country’s unique history. First, it shows how the political …

Reply To Noah Feldman: Democracy's Paradox: Popular Rule As A Constitutional Limit On Foreign Policy Promoting Popular Rule, Harry F. Tepker

Faculty Articles

No abstract provided.

Judicial Selection: Ideology Versus Character, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Part I of Judicial Selection: Ideology versus Character sets the stage for an argument that character and not political ideology should be the primary factor in the selection of judges. Political ideology has played an important role in judicial selection, from John Adams's entrenchment of federalists as judges after the election of 1800 to the Roosevelt's selection of progressives, liberals, and New Dealers, the contemporary era, from the failed nominations of Fortas, Haynsworth, Carswell to the defeat of Robert Bork, the narrow confirmation of Clarence Thomas. But until recently, political ideology has played its role behind the scenes--mostly off the …

Terrorist Speech And The Future Of Free Expression, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

The crucial point is this: Both liberal, democratic states, and non-state terrorist organizations need free speech. Prominent scholars have written elegantly and at length on the role of this liberty for the former. While their arguments surface at times in the text, the author does not dwell on them. Instead, she wrestles with the question: Under what circumstances are the interests of the state secured and the opportunism of terrorist organizations avoided? Here, the experiences of the United States and United Kingdom prove instructive. On both sides of the Atlantic, where the state acts as sovereign, efforts to restrict persuasive …

Preferring White Lives: The Racial Administration Of The Death Penalty In Maryland, Michael Millemann, Gary W. Christopher

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Democracy Without A Net? Separation Of Powers And The Idea Of Self-Sustaining Constitutional Constraints On Undemocratic Behavior, James A. Gardner

Journal Articles

The United States Constitution is designed to achieve good government by relying on two distinct systems: a primary system that achieves good governance through democratic electoral accountability; and a set of self-sustaining structural backup systems designed for situations in which the democratic system fails, and which operate by limiting the ability of bad rulers to do serious harm to the public good. A key premise of this kind of dual structural arrangement is that effective backup systems must operate independently of primary democratic systems; because they are needed precisely when democratic mechanisms have failed, they cannot depend for their success …

Reconciling Data Privacy And The First Amendment, Neil M. Richards

Scholarship@WashULaw

This article challenges the First Amendment critique of data privacy regulation–the claim that data privacy rules restrict the dissemination of truthful information and thus violate the First Amendment. The critique, which is ascendant in privacy discourse, warps legislative and judicial processes by constitutionalizing information policy. Rejection of the First Amendment critique is justified on three grounds. First, the critique mistakenly equates privacy regulation with speech regulation. Building on scholarship examining the boundaries of First Amendment protection, this article suggests that speech restrictions in a wide variety of commercial contexts have never been thought to trigger heightened First Amendment scrutiny, refuting …

Mediating Norms And Identity: The Role Of Transnational Judicial Dialogue In Creating And Enforcing International Law, Melissa A. Waters

Scholarship@WashULaw

This article proposes a new theory for understanding the emerging transnational judicial dialogue among the world's domestic courts, as well as U.S. courts' potential participation in that dialogue. Existing scholarship has focused almost exclusively on the role of domestic courts in internalizing international legal norms into domestic legal systems. I argue that the relationship between international and domestic legal norms is in fact a co-constitutive, or synergistic, relationship in which domestic courts are becoming active participants in the dynamic process of developing international law. Under this view, transnational judicial dialogue is the engine by which domestic courts collectively engage in …

A Culturally Correct Proposal To Privatize The British Columbia Salmon Fishery, D. Bruce Johnsen

George Mason University School of Law Working Papers Series

Canada now faces two looming policy crises that have come to a head in British Columbia. The first is long-term depletion of the Pacific salmon fishery by mobile commercial ocean fishermen racing to intercept salmon under the rule of capture. The second results from Canadian Supreme Court case law recognizing and affirming “the existing aboriginal and treaty rights of the aboriginal peoples of Canada” under Section 35(1) of the Constitution Act, 1982. This essay shows that the economics of property rights provides a joint solution to these crises that would promote the Canadian commonwealth by way of a privatization auction …

Collateral Damage: The Endangered Center In American Politics, Samuel Issacharoff

William & Mary Law Review

No abstract provided.

Statehood As The New Personhood: The Discovery Of Fundamental "States' Rights", Timothy Zick

William & Mary Law Review

No abstract provided.

Teaching Race Without A Critical Mass: Reflections On Affirmative Action And The Diversity Rationale, Kathryn R.L Rand, Steven Andrew Light

Journal of Legal Education

No abstract provided.

“Politics As Markets” Reconsidered: Economic Theory, Competitive Democracy And Primary Ballot Access , David N. Schleicher

ExpressO

No abstract provided.

Cross Burning, Cockfighting, And Symbolic Meaning: Toward A First Amendment Ethnography, Timothy Zick

William & Mary Law Review

No abstract provided.

Predatory Systems Rivalry And Predatory Aftermarket Conduct, Richard S. Markovits

ExpressO

No abstract provided.

Predatory Investments, Richard S. Markovits

ExpressO

No abstract provided.

The Evolution Of Sherman Act Jurisdiction: A Roadmap For Competitive Federalism, D. Bruce Johnsen

ExpressO

Recent Supreme Court decisions confirm for the first time in over six decades that federal regulatory authority under the Commerce Clause truly is limited. These decisions coincide with an increasing appreciation among scholars and jurists for the concept of competitive federalism. This paper derives the implications of competitive federalism for the evolution of federal jurisdiction over trade restraints under the Sherman Antitrust Act (1890). It provides a clear and substantively reasoned jurisdictional test based on the analysis of geographic market power familiar to antitrust scholars, practitioners, and regulators in evaluating horizontal mergers. To be subject to federal antitrust jurisdiction under …