Constitutional Law Commons^™

Finding The Proper Measure For Conditions Of Pretrial Confinement, Alexander A. Reinert

Articles

Comment in response to Catherine T. Struve, The Conditions of Pretrial Detention, 161 U. Pa. L. Rev. 1009 (2013).

Asking The First Question: Reframing Bivens After Minneci, Alexander A. Reinert, Lumen N. Mulligan

Articles

In Minneci v. Pollard, decided in January 2012, the Supreme Court refused to recognize a Bivens v. Six Unknown Federal Narcotics Agents suit against employees of a privately run federal prison because state tort law provided an alternative remedy, thereby adding a federalism twist to what had been strictly a separation-of-powers debate. In this Article, we show why this new state-law focus is misguided. We first trace the Court’s prior alternative-remedies-to-Bivens holdings, illustrating that this history is one narrowly focused on separation of powers at the federal level. Minneci’s break with this tradition raises several concerns. On a …

Due Process And The Post-Padilla Landscape: Balancing The Severity Of Deportation As A Collateral Consequence With A Court's Traditionally Narrow Obligation In Accepting A Plea, Orrie A. Levy

Cardozo Public Law, Policy & Ethics Journal

The article examines the implications of the Supreme Court's decision in Padilla v. Kentucky, which established that defense attorneys must inform defendants of the immigration consequences of a guilty plea under the Sixth Amendment. It explores the tension between the Sixth Amendment right to effective assistance of counsel and the Fifth Amendment due process obligations of trial courts, highlighting that while Padilla mandates attorney advice on immigration consequences, courts are not required to inform defendants of such consequences. The article argues against extending due process obligations to include severe collateral consequences, emphasizing the impracticality of requiring courts to foresee …

Comparativist-Structural Approaches To Interpretation Of The Post-Obamacare Spending Power, Michelle Biddulph, Dwight G. Newman

Cardozo Journal of International and Comparative Law

The U.S. Supreme Court's decision on the Affordable Care Act (ACA) has significant implications for the federal spending power, a topic that has received limited scholarly attention. The article argues that understanding this aspect of the ACA ruling is crucial for comprehending its impact on future federal programs and legislative approaches. By examining the spending power frameworks in Canada and Australia, the article highlights how different federal systems balance central authority with regional autonomy, offering valuable lessons for the U.S. legal framework.

Welfare Economics For Capitalists: The Economic Consequences Of Judge Posner, David Campbell

Cardozo Law Review

No abstract provided.

Revisiting "Special Needs" Theory Via Airport Searches, Alexander A. Reinert

Articles

Controversy has raged since the Transportation Security Administration (TSA) introduced Advanced Imaging Technology, capable of producing detailed images of travelers' bodies, and "enhanced" pat frisks as part of everyday airport travel. In the face of challenges in the courts and in public discourse, the TSA has justified the heightened security measures as a necessary means to prevent terrorist attacks. The purpose of this Essay is to situate the Fourth Amendment implications of the new regime within a broader historical context. Most germane, after the Federal Aviation Administration (FAA) introduced sweeping new screening of air travelers in the 1960s and 1970s …

The European Convention On Human Rights And National Constitutional Reordering, Alec Stone Sweet

Cardozo Law Review

No abstract provided.

Constitutionalism Beyond The State? The Administrative Character Of European Governance Revisited, Peter L. Lindseth

Cardozo Law Review

No abstract provided.

Constitutional Patriotism Beyond The Nation-State: Human Rights, Constitutional Necessity, And The Limits Of Pluralism, Jan-Werner Müller

Cardozo Law Review

No abstract provided.

Comments On Michel Rosenfeld's The Identity Of The Constitutional Subject: Selfhood, Citizenship, Culture, And Community, Deborah Hellman

Cardozo Law Review

No abstract provided.

The Constitutional Subject And Its Identity: My German Experience, Bernhard Schlink

Cardozo Law Review

No abstract provided.

Civil War, Ceasefire, Constitution: Some Preliminary Notes, Sujit Choudhry

Cardozo Law Review

No abstract provided.

The Constitutional Subject, Its Other, And The Perplexing Quest For An Identity Of Its Own: A Reply To My Critics, Michel Rosenfeld

Cardozo Law Review

No abstract provided.

Association For Civil Rights In Israel V. Israel Police, Dorit Beinisch, Asher Grunis, Miriam Naor, Esther Hayut, Hanan Melcer, Eliezer Rivlin, Edna Arbel

Translated Opinions

This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Petitions concerning the constitutionality of some of the arrangements prescribed in the scope of the Criminal Procedure Act (Powers of Enforcement – Communications Data), 5768-2007, which came into effect on June 27, 2008 (hereinafter referred to as “the Communications Data Act” or “the Act”) and enables the Israeli investigatory authorities to obtain communications data from all the communications companies – the various cellular or …

Hammer V. Amit, Eliezer Rivlin, Dorit Beinisch, Asher Grunis, Miriam Naor, Edna Arbel, Salim Joubran, Elyakim Rubinstein

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.] 

This opinion is a result of cases joined together in order for the Court to resolve the general questions regarding the cause of action known as “wrongful birth”. This issue arises when a person born with a congenital disability claims that careful conduct by petitions – usually medical professionals who treated the pregnant mother – would have entirely prevented that person’s birth. Two distinct …

Goren V. Home Center (Do It Yourself) Ltd., Dorit Beinisch, Neal Hendel, Isaac Amit

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

Can a showing of a wage gap between a female employee and a male employee for equal work or work of equal value at the same workplace can “automatically” substantiate a cause of action under the Equal Pay for Female and Male Employees Act 1996 (hereinafter: the Equal Pay Act) as well as under the Equal Opportunities in Employment Act 1988 (hereinafter: the Equal …

Yassin V. Minister Of Defense, Asher Grunis, Salim Joubran, Uzi Vogelman

Translated Opinions

In HCJ 9060/08 petitions were filed with the High Court against the illegal construction of structures on a site next to the Beit El settlement. Following a series of hearings the State notified the court of its adoption of a policy concerning the demolition of illegal building on private land and the arrangement of construction on State land. As a result of this policy, illegal construction located on private land would be removed. The Court gave a judgment giving effect to the State's undertaking to ensure the removal of the illegal structures within one year of the filing of said …

Association For Civil Rights In Israel V. Knesset, Elyakim Rubinstein, Edna Arbel, Dorit Beinisch

Translated Opinions

The petition, filed in 1999, concerned the repeated renewal of the declaration of a national state of emergency under sec. 38 of Basic Law: The Government. The petition asked that the Court revoke the declaration of a national state of emergency.

The High Court of Justice (per Justice Rubinstein, President (Emerita) Beinisch and Justice Arbel concurring) dismissed the petition, holding:

Although the work is not finished, the petition has exhausted its purpose. The state authorities should be allowed to work toward completing the legislative processes that the Petitioner helped advance by means of its petition. While this was, indeed, a …

Proportionality And Parole, Richard A. Bierschbach

Articles

Commentators analyzing the Supreme Court's watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping-off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of …

Proportionality And Parole, Richard A. Bierschbach

Articles

Commentators analyzing the Supreme Court's watershed decision in Graham v. Florida, which prohibited sentences of life without parole for juveniles convicted of nonhomicide crimes, have generally done so in substantive proportionality terms, ignoring or downplaying parole in the process. This Article challenges that approach, focusing on the intersection of proportionality and parole as a jumping-off point. Taking parole seriously makes clear that Graham is difficult to understand solely in terms of substantive proportionality concepts like individual culpability and punishment severity. Instead, the decision can be seen as establishing a rule of constitutional criminal procedure, one that links the validity of …

Childhood Obesity: Balancing The Nation's Interest With A Parent's Constitutional Right To Privacy, Denise Cohen

Cardozo Public Law, Policy & Ethics Journal

The note argues that governmental intervention into parental rights regarding childhood obesity is constitutionally justifiable under strict scrutiny, as it serves the compelling interests of both the child's well-being and societal welfare. While the constitutional right to privacy in parenting is fundamental, it is not absolute, and the growing public health crisis of childhood obesity necessitates narrowly tailored measures to hold parents accountable. The analysis proposes that existing legal frameworks, such as neglect statutes, can be effectively applied to address severe cases of childhood obesity, balancing individual rights with public health needs.

Can California Save Its Death Sentences? Will Californians Save The Expense?, Scott W. Howe

Cardozo Law Review

No abstract provided.

Release As Remedy For Excessive Punishment, Alexander A. Reinert

Articles

Although the Eighth Amendment’s prohibition on “cruel and unusual” punishment means different things in different contexts, it plainly forecloses state and federal actors from choosing ex ante to impose a punishment that is either disproportionate or inconsistent with minimum standards of decency. In other words, the Eighth Amendment mandates that no punishment be imposed if the only other choice on the table is an unconstitutional punishment. Although this principle can be gleaned from the disparate strands of Eighth Amendment jurisprudence, its remedial consequence has not been fully implemented. In this Article, I propose that providing a remedy of release from …

Hassan V. National Insurance Institute, Dorit Beinisch, Miriam Naor, Uzi Vogelman, Edna Arbel, Esther Hayut, Elyakim Rubinstein, Salim Joubran

Translated Opinions

This Petition challenges the constitutionality of section 9A(b) of the Income Guarantee Act. The main claim the Petitions raise is that section 9A(b) establishes an absolute presumption whereby those who own or have access to the use of a vehicle shall be seen as having an income at the amount of the benefit, and thus their right to the benefit of income guarantee is revoked. It was argued that this presumption unconstitutionally infringes the right to minimal dignified human existence.

The Supreme Court sitting as a High Court of Justice granted the Petitions and declared the unconstitutionality of section 9A(b) …

Ressler V. Knesset, Dorit Beinisch, Miriam Naor, Edna Arbel, Elyakim Rubinstein, Hanan Melcer, Esther Hayut, Neal Hendel, Asher Grunis, Eliezer Rivlin

Translated Opinions

Facts: The subject of military service for hareidi (ultra-Orthodox), full-time yeshiva (rabbinical seminary) students has been at the center of public debate in Israel since the founding of the state, when the first Defense Minister, David Ben Gurion, decided to defer their conscription. The arrangement was significantly expanded over the years, and its underlying reasons also changed. Numerous attempts were made to challenge the legality and constitutionality of the deferment arrangement in the Supreme Court. The first petitions were denied for lack of standing and non-justiciability In the 1986 Ressler case [3], the Court held that the petitioner had standing, …

What Police Learn From Lawsuits, Joanna C. Schwartz

Cardozo Law Review

This Article asks what can be learned from the vast amount of information generated by modern civil litigation. One answer lies in the practices of a small but growing number of law enforcement agencies that pay careful attention to suits brought against them and their officers. These departments gather information from initial complaints, discovery, and case resolutions and use that information to identify personnel and policy weaknesses. Lawsuit data has proven valuable to these departments' performance-improvement efforts: suits have alerted departments to incidents of misconduct, and the information developed during the course of discovery and trial has been found to …

Alumni Association Of The Arab Orthodox School In Haifa V. Minister Of Finance, Miriam Naor, Dorit Beinisch, Eliezer Rivlin

Translated Opinions

Facts: The Budget Elements Law was amended in 2011 to include a new section 3b, which provided that if an entity that receives support or budgeting from the government incurs an expense that falls within any of several listed categories, the Minister of Finance can reduce the entity’s budget or support by an amount no greater than three times the size of the said expense. Of the categories listed, the petitioners focused their challenge on two of them: the first, sub-section 3b(b)(1), referring to an expense which was “in essence” a negation of the values of the State of Israel …

Gal-On V. Attorney General (Summary), Eliezer Rivlin, Asher Grunis, Miriam Naor, Elyakim Rubinstein, Hanan Melcer, Neal Hendel, Dorit Beinisch, Edmond E. Levy, Edna Arbel, Salim Joubran, Esther Hayut

Translated Opinions

By a majority of six justices out of a panel of eleven, the High Court of Justice rejected petitions challenging the constitutionality of the Citizenship and Entry to Israel Act. The majority justices acknowledged there was a constitutional right for family life, which derives from the right to human dignity, but held that the scope of the right does not extend to realizing the right specifically in Israel. It was also held that to the extent that constitutional rights have been violated, including the right to equality, it is a violation that passes muster under the test of the Limitations …

The Secular And Religious Legal Framework Of Afghanistan As Compared To Western Notions Of Equal Protection And Human Rights Treaties: Is Afghanistan's Legal Code Facially Consistent With Sex Equality?, Laura Belkner

Cardozo Journal of International and Comparative Law

The note examines Afghanistan's legal framework, arguing that while it is facially consistent with sex equality as per the Afghan Constitution and international treaties, the practical implementation is hindered by cultural and traditional practices. This discrepancy highlights the gap between legal provisions and real-world application.

Chinese Use Of Administrative Proceedings To Enforce Intellectual Property Rights: Evaluating And Improving Adr In China, Simeng Han

Cardozo Journal of Conflict Resolution

Since its entry into the World Trade Organization ("WTO") in 2001, China has significantly reformed its legal system in order to enforce its commitment to protecting Intellectual Property ("IP"). Yet, there remains a lingering suspicion of the actual level of Chinese commitment-as indicated by continuous infringement claims from nations such as the United States. With an increasing number of disputes loading the court dockets and putting pressure on judges, and given China's "deep-rooted historical preference for informal and non-adversarial means of dispute resolution," there is enormous potential for further development of ADR in this field. Indeed, the culturally preferable way …