Constitutional Law Commons^™

The Theory And Practice Of Contestatory Federalism, James A. Gardner

Journal Articles

Madisonian theory holds that a federal division of power is necessary to the protection of liberty, but that federalism is a naturally unstable form of government organization that is in constant danger of collapsing into either unitarism or fragmentation. Despite its inherent instability, this condition may be permanently maintained, according to Madison, through a constitutional design that keeps the system in equipoise by institutionalizing a form of perpetual contestation between national and subnational governments. The theory, however, does not specify how that contestation actually occurs, and by what means.

This paper investigates Madison’s hypothesis by documenting the methods actually deployed …

The Security Court, Matthew J. Steilen

Journal Articles

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …

Active Judicial Governance, James A. Gardner

Journal Articles

Evidence marshaled in a new article by Jonathan Marshfield suggests strongly that unlike judges of U.S. federal courts, judges of American state supreme courts both recognize and embrace their role as active participants in the process of indirect popular self-rule. Consequently, they much more willingly serve as active and self-conscious vectors of governance. This is not to say that state judges lack appropriate judicial humility; it is to say merely that they possess a different and more nuanced understanding of the role of courts in American government than some of their federal counterparts.

Forum Selection Clauses And Consumer Contracts In Canada, Tanya J. Monestier

Journal Articles

Every day, billions of people use the online social media platform, Facebook. Facebook requires, as a condition of use, that users “accept” its terms and conditions—which include a forum selection clause nominating California as the exclusive forum for dispute resolution. In Douez v. Facebook, the Supreme Court of Canada considered whether this forum selection clause was enforceable, or whether the plaintiff could proceed with her suit in British Columbia.

The Supreme Court of Canada ultimately decided that the forum selection clause was not enforceable. It held that the plaintiff had established “strong cause” for departing from the forum selection clause. …

Unusual: The Death Penalty For Inadvertent Killing, Guyora Binder, Brenner Fissell, Robert Weisberg

Journal Articles

Can a burglar who frightens the occupant of a house, causing a fatal heart attack, be executed? More generally, does the Eighth Amendment permit capital punishment of one who causes death inadvertently? This scenario is possible in the significant minority of American jurisdictions that permit capital punishment for felony murder without requiring a mental state of intent to kill or reckless indifference to human life. Thus far, Eighth Amendment death penalty jurisprudence has required a culpable mental state of recklessness for execution of accomplices in a fatal felony, but has not yet addressed the culpability required for execution of the …

Francesco Palermo & Karl Kössler's Comparative Federalism: Constitutional Arrangements And Case Law (Book Review), James A. Gardner

Book Reviews

No abstract provided.

How To Think Constitutionally About Prerogative: A Study Of Early American Usage, Matthew J. Steilen

Journal Articles

This Article challenges the view of “prerogative” as a discretionary authority to act outside the law. For seventy years, political scientists, lawyers and judges have drawn on John Locke’s account of prerogative in the Second Treatise, using it to read foundational texts in American constitutional law. American writings on prerogative produced between 1760 and 1788 are rarely discussed (excepting The Federalist), though these materials exist in abundance. Based on a study of over 700 of these texts, including pamphlets, broadsides, letters, essays, newspaper items, state papers, and legislative debates, this Article argues that early Americans almost never used “prerogative” as …

Secret Law, Jonathan Manes

Journal Articles

The law cannot be a secret hidden from the public. This proposition strikes most of us as uncontroversial—a basic premise of any legal order committed to democratic accountability and the rule of law. Yet in this country secret law not only exists, but has become an entrenched feature of contemporary national security governance. From NSA surveillance to terrorist watch lists to targeted killings, the most controversial national security programs of our time have all been governed by secret rules, secret directives, and secret legal interpretations.

This Article sheds new light on this deeply unsettling state of affairs. It pushes beyond …

Canadian Federalism In Design And Practice: The Mechanics Of A Permanently Provisional Constitution, James A. Gardner

Journal Articles

This paper examines the interaction between constitutional design and practice through a case study of Canadian federalism. Focusing on the federal architecture of the Canadian Constitution, the paper examines how subnational units in Canada actually compete with the central government, emphasizing the concrete strategies and tactics they most commonly employ to get their way in confrontations with central authority. The evidence affirms that constitutional design and structure make an important difference in the tactics and tools available to subnational units in a federal system, but that design is not fully constraining: there is considerable evidence of extraconstitutional innovation and improvisation …

Informal Constitutional Change, Oran Doyle

Buffalo Law Review

In response to Richard Albert’s Quasi-Constitutional Amendments, 65 BUFF. L. REV. 739 (2017).

Two Examples Of “Quasi-Constitutional Amendments” From The Italian Constitutional Evolution—A Response To Richard Albert, Nicola Lupo

Buffalo Law Review

In response to Richard Albert’s Quasi-Constitutional Amendments, 65 BUFF. L. REV. 739 (2017).

Respecting The Mystery Of Constitutional Change, Jonathan L. Marshfield

Buffalo Law Review

In response to Richard Albert’s Quasi-Constitutional Amendments, 65 BUFF. L. REV. 739 (2017).

Quasi-Constitutional Change Without Intent—A Response To Richard Albert, Reijer Passchier

Buffalo Law Review

In response to Richard Albert’s Quasi-Constitutional Amendments, 65 BUFF. L. REV. 739 (2017).

Judicial Supremacy In Comparative Constitutional Law, Manoj Mate

Journal Articles

This Article challenges the prevailing conception of judicial supremacy in comparative constitutional law as informed by U.S. and Western models of constitutionalism and argues for re-conceptualizing judicial supremacy in a way that captures the broader range of institutional roles courts play globally. Drawing on insights from global constitutional systems, this is the first article to argue for and develop an institutional conception of judicial supremacy that focuses on three key institutional roles played by courts globally: constitutional guardianship, institutional guardianship, and governance optimization. It then provides a dynamic account of the emergence of “expansive” judicial supremacy in India through a …

Quasi-Constitutional Amendments, Richard Albert

Buffalo Law Review

No abstract provided.

Interpreting The Constitution’S Elegant Specificities, Steven Semeraro

Buffalo Law Review

No abstract provided.

Semantic Vagueness And Extrajudicial Constitutional Decisionmaking, Anthony O'Rourke

Journal Articles

No abstract provided.

Indian Country Complexities And The Ambiguous State Of Marijuana Policy In The United States, Lauren Adornetto

Buffalo Law Review

No abstract provided.

Capital Punishment Of Unintentional Felony Murder, Guyora Binder, Brenner Fissell, Robert Weisberg

Journal Articles

Under the prevailing interpretation of the Eighth Amendment in the lower courts, a defendant who causes a death inadvertently in the course of a felony is eligible for capital punishment. This unfortunate interpretation rests on an unduly mechanical reading of the Supreme Court’s decisions in Enmund v. Florida and Tison v. Arizona, which require culpability for capital punishment of co-felons who do not kill. The lower courts have drawn the unwarranted inference that these cases permit execution of those who cause death without any culpability towards death. This Article shows that this mechanical reading of precedent is mistaken, because the …

Constitutional Economic Justice: Structural Power For "We The People", Martha T. Mccluskey

Journal Articles

Toward that goal, this essay proposes a structural principle of collective economic power for “we the people.” This principle is both consistent with longstanding Constitutional ideals and tailored to the current challenges of neoliberal ideology and policy. It develops two premises: first, it rejects the neoliberal economic ideology that defines legitimate power and freedom as individualized “choice” constrained by an existing political economy. Instead, this proposed principle recognizes that meaningful political economic freedom and power fundamentally consist of access to collective organizations with potential to create a “more perfect union” with better and less constrained options. Second, the post-Lochner principle …

Due Process As Choice Of Law: A Study In The History Of A Judicial Doctrine, Matthew J. Steilen

Journal Articles

This Article argues that procedural due process can be understood as a choice-of-law doctrine. Many procedural due process cases require courts to choose between a procedural regime characteristic of the common law - personal notice, oral hearing, neutral judge, and jury trial - and summary procedures employed in administrative agencies.

This way of thinking about procedural due process is at odds with the current balancing test associated with the Supreme Court’s opinion in Mathews v. Eldridge. This Article aims to show, however, that it is consistent with case law over a much longer period, indeed, most of American history. It …

Distinctive Identity Claims In Federal Systems: Judicial Policing Of Subnational Variance, Antoni Abat I Ninet, James A. Gardner

Journal Articles

It is characteristic of federal states that the scope of subnational power and autonomy are subjects of frequent dispute, and that disagreements over the reach of national and subnational power may be contested in a wide and diverse array of settings. Subnational units determined to challenge nationally-imposed limits on their power typically have at their disposal many tools with which to press against formal boundaries. Federal systems, moreover, frequently display a surprising degree of tolerance for subnational obstruction, disobedience, and other behaviors intended to expand subnational authority and influence, even over national objection. This tolerance, however, has limits. In this …

James Wilson And The Moral Foundations Of Popular Sovereignty, Ian Bartrum

Buffalo Law Review

No abstract provided.

Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill

Buffalo Law Review

No abstract provided.

Appraising 9/11: 'Sacred' Value And Heritage In Neoliberal Times, Mateo Taussig-Rubbo

Journal Articles

On September 11, 2001, United Airlines Flight 93 — one of the four airplanes hijacked that day — crashed into a vacant parcel of land in rural Pennsylvania, killing all on board. For many, including family members of those killed in the attack and the Park Service that now manages the national memorial at the site, the former strip mine was transformed into ‘sacred’ ground. Unable to settle on a price with the landowner, in 2009 the government took the property through eminent domain. Focusing on the ongoing effort in United States of America v. 275.81 Acres of Land to …

Fixing Fuller: Securing Just Compensation For Private Beneficiaries Of Federal Grazing Lands, Matthew C. Piccolo

Buffalo Environmental Law Journal

No abstract provided.

Practice-Driven Changes To Constitutional Structures Of Governance, James A. Gardner

Journal Articles

Among the methods of informal constitutional change, perhaps the least studied or understood is change resulting from alterations in the way governance is practiced. Such changes, typically initiated by political actors in the executive and legislative branches, is probably the most common kind of constitutional change, and is almost certainly the most common source of informal change to structural provisions. In the United States, the best known instances of practice-driven changes to constitutional structure come from the federal level – the rise of a formal party system, for example, or the dramatic twentieth-century expansion of presidential power. Yet by far …

The Inversion Of Rights And Power, Philip Hamburger

Buffalo Law Review

No abstract provided.

Cosmopolitan Law And Time: Toward A Theory Of Constitutionalism And Solidarity In Transition, Paul Linden-Retek

Journal Articles

This article seeks to confront the contemporary condition in which cosmopolitan law – meant to resonate as something citizens across borders author and live together – instead is increasingly a source of detachment, confusion, and alienation. Taking the European Union’s twin crises of democratic legitimacy and social solidarity as its starting point, the article offers a critique of existing approaches to supranational constitutionalism that are insufficiently responsive to this disenchantment. The article’s purpose, in turn, is to present perspectives from philosophy and legal theory that might promisingly recast, in this new cosmopolitan frame, our thinking about law as a mode …

Complex Experimental Federalism, Doni Gewirtzman

Buffalo Law Review

No abstract provided.