Constitutional Law Commons^™

When Lochner Met Dolan: The Attempted Transformation Of American Land Use Law By Constitutional Interpretation, Ronald H. Rosenberg, Nancy Stroud

Faculty Publications

No abstract provided.

Common Sense, Rationality, And The Legal Process, Ronald J. Allen

Cardozo Law Review

No abstract provided.

Theories Of Uncertainty: Explaining The Possible Sources Of Error In Inferences, Vern R. Walker

Cardozo Law Review

No abstract provided.

Serendipity And Abduction In Proofs, Presumptions, And Emerging Laws, Pek Van Andel, Danièle Bourcier

Cardozo Law Review

No abstract provided.

True Threats: Evolving Mens Rea Requirements For Violations Of 18 U.S.C. § 875(C), Justin Myer Lichterman

Cardozo Law Review

No abstract provided.

Are Tax "Benefits" For Religious Institutions Constitutionally Dependent On Benefits For Secular Entities?, Edward A. Zelinsky

Articles

The Supreme Court generally conditions tax exemptions, deductions, and exclusions for religious organizations and activities upon the simultaneous extension of such benefits to secular institutions and undertakings. The Court's position flows logically from its acceptance of the premise that tax exemptions, deductions, and exclusions constitute subsidies. However, the "subsidy" label is usually deployed in a conclusory and unconvincing fashion. The First Amendment is best understood as permitting governments to refrain from taxation to accommodate the autonomy of religious actors and activities; hence, tax benefits extended solely to religious institutions should pass constitutional muster as recognition of that autonomy.

Memorandum Of Argument For Leave To Appeal Of The Appellant James R. Demers, Court Of Appeal For Province Of British Columbia, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Gur Aryeh V. Second Television And Radio Authority, Aharon Barak, Shlomo Levin, Dalia Dorner

Translated Opinions

Facts: Petitioners are the subject of a film made by or for the respondents.  The film was designated for broadcast on television on Shabbat.  When the petitioners discovered the film was going to be broadcast on Shabbat they approached the Second Television and Radio Authority, and asked that the film not be broadcast on Shabbat stating that broadcast of the film on Shabbat would harm their religious feelings and violate their religious freedom.  The request was denied by the Second Television and Radio Authority, which was willing to add captions on the screen which would state that the film was …

Local Building V. Holzman, Dalia Dorner, Theodor Or, Eliahu Mazza, Itzchak Zamir, Aharon Barak, Shlomo Levin, Izhak Englard

Translated Opinions

Facts: Two appeals (CA 5546/97 and CA 6417/97) were joined in this case due to the similarity of the legal question they raised.   In both cases the question arose as to the authority to reduce compensation in the expropriation of land for public purposes and in particular the question arose whether a plot of land can be expropriated in its entirety with significant reduction in compensation.

Held: The appeal in CA 5546/97 was dismissed and the appeal in CA 6417/97 was partially affirmed.  In that case the Local Planning and Construction Committee in Haifa was ordered to pay the appellants …

Supreme Court Power Play: Assessing The Appropriate Role Of The Senate In The Confirmation Process, Jeff Yates, William Gillespie

Washington and Lee Law Review

The Bush Administration will likely have the opportunity to make a number of appointments to the Supreme Court; however, such nominations may lead to contentious confirmation hearings in the Senate. When such an appointment opportunity does present itself, questions are bound to arise concerning the appropriate role of the United States Senate in the confirmation of Supreme Court nominees under the "advice and consent" provisions of article H of the Unite States Constitution. Disputes over the Senate 's proper role and scope of inquiry seem to emerge whenever a nominee has faced the confirmation process and have been a timeworn …

When Money Talks: Reconciling Buckley, The First Amendment, And Campaign Finance Reform, Stephanie Pestorich Manson

Washington and Lee Law Review

No abstract provided.

Tiger's Paper Tiger: The Endangered Right Of Publicity, David J. Michnal

Washington and Lee Law Review

No abstract provided.

Just And Unjust Compensation: The Future Of The Navigational Servitude In Condemnation Cases, Alan T. Ackerman, Noah Eliezer Yanich

University of Michigan Journal of Law Reform

In 1967, the U.S. Supreme Court, in United States v. Rands, expanded the navigational servitude doctrine governing the federal government's power over land adjoining a navigable waterway by severely qualifying the government's Fifth Amendment obligation to compensate the landowner. This Article addresses the issue in the following ways: Part I surveys Congress' power to regulate navigable waters under the Commerce Clause. Part II summarizes the development of the navigational servitude doctrine and some of its inhibitory effects on waterfront development, especially under Rands. It explains the fundamental unfairness of the Rands principle and demonstrates why this constitutional rule …

Privatization And Political Accountability, Jack M. Beermann

Faculty Scholarship

This article is an attempt to draw some general connections between privatization and political accountability. Political accountability is to be understood as the amenability of a government policy or activity to monitoring through the political process. Although the main focus of the article is to examine different types of privatization, specifically exploring the ramifications for political accountability of each type, I also engage in some speculation as to whether there are there situations in which privatization might raise constitutional concerns related to the degree to which the particular privatization reduces political accountability for the actions or decisions of the newly …

The True Constitutionalist, Raoul Berger, 1901-2000: His Life And His Contribution To American Law And Politics, Gary L. Mcdowell

Jepson School of Leadership Studies articles, book chapters and other publications

When Raoul Berger turned ninety a little over a decade ago, he was presented with a book of letters from friends and admisrers. Those sending their good wishes were among America's most distinguished jurists, public officials and scholars, including Chief Justice William H. Rehnquist, former Attorney General Edwin Meese III and Professor Philip B. Kurland. The collection was introduced by a letter from former President Ronald Reagan.

Taking Aim At An American Myth, Paul Finkelman

Michigan Law Review

Every American had a musket hanging over his fireplace at night, and by his side during the day. Like Cincinnatus, time and again Americans dropped their plows to shoulder their arms, to fight the Indians, the French, the Indians, the British, the Indians, the Mexicans, the Indians yet again, and then, from 1861 to 1865, each other. American men were comfortable with guns; they needed them and wanted them. They felt at home in woods, in search of food, or in defense of their homesteads. It is a story as old as our first pulp novels and earliest movies. It …

The Public Interest Standard: Is It Too Indeterminate To Be Constitutional?, Randolph J. May

Federal Communications Law Journal

This Article argues that the congressional delegation of public interest authority to the FCC likely violates the nondelegation doctrine that inheres in the constitutional separation of powers scheme and that, even if the courts do not hold the public interest delegation unconstitutional, Congress should revise the Communications Act to set forth more specific guidance for the FCC. In today’s environment of “convergence,” in which competition is flourishing across communications sectors, Congress should not shirk its responsibility to establish fundamental policy for an industry that contributes so much to the overall health of our economy. This Article argues that Congress should …

Constitutional Risks To Equal Protection In The Criminal Justice System, Edward K. Cheng

Vanderbilt Law School Faculty Publications

This Note has examined the consequences of a shift in the equal protection context - a move from a traditional particularized harm perspective to a constitutional risk perspective focused on systemic harms. It has also acknowledged the significant remedial difficulties associated with constitutional risk, but by focusing on discretion as the source of most equal protection risks, this Note has proposed a moderate doctrinal change: discretionary safeguards. To be sure, this Note leaves the project substantially incomplete. Constitutional risk's focus on statistical evidence requires careful discussion of the pitfalls judges face in this area and of how they can develop …

Hate And The Bar: Is The Hale Case Mccarthyism Redux Or A Victory For Racial Equality?, W. Bradley Wendel

Cornell Law Faculty Publications

The application of the constitutional free expression guarantee to the activities of the organized bar is one of the most important unexplored areas of legal ethics. In this essay I will consider in particular the question of whether an applicant may be denied admission to the bar for involvement with hateful or discriminatory activities. This question reveals the tension between the first amendment principle, established after the agonizing struggles of the McCarthy era, that no one may be denied membership in the bar because of his or her beliefs alone, and the plenary authority of bar associations to make predictive …

The Religious Freedom And Legal Status Of Churches, Religious Organizations, And New Religious Movements In The Slovak Republic, Martin Dojcar

BYU Law Review

No abstract provided.

Perspectives On Freedom Of Conscience And Religion In The Jurisprudence Of Constitutional Courts, Leszek Lech Garlicki

BYU Law Review

No abstract provided.

Freedom Of Religion In The Case Law Of The Spanish Constitutional Court, Javier Martinez-Torron

BYU Law Review

No abstract provided.

The Icon And The Tracts: A Restrained Renaissance Of Religious Liberty In Ukraine, John Moroz Smith

BYU Law Review

No abstract provided.

Structural Review, Pseudo-Second-Look Decision Making, And The Risk Of Diluting Constitutional Liberty, Dan T. Coenen

William & Mary Law Review

No abstract provided.

Subconsitutional Constitutional Law: Supplement, Sham, Or Substitute?, Mark Tushnet

William & Mary Law Review

No abstract provided.

A Constitution Of Collaboration: Protecting Fundamental Values With Second-Look Rules Of Interbranch Dialogue, Dan T. Coenen

Scholarly Works

Often the Supreme Court directly engages nonjudicial officials in a shared elaboration of constitutional rights. It does so through the use of doctrines that focus on whether nonjudicial actors have taken an appropriately close and sensitive look at policy judgments that threaten important constitutional values. In many of these cases, the Court in effect "remands" constitutionally controversial programs to the political branches--inviting a more studied consideration of the program than attended its initial adoption, and leaving open the possibility that the readopted program will be upheld against constitutional attack.

The Court's structural doctrines range from the familiar vagueness rule to …

Structural Review, Pseudo-Second-Look Decision Making, And The Risk Of Diluting Constitutional Liberty, Dan T. Coenen

Scholarly Works

In this Essay, I will pause to note some reasons why the "sham decision" critique of structural review is, for me, unpersuasive. I also will offer a few comments on the proper relationship between structural and substantive review. I note, in particular, that an endorsement of "activist" structural review need not lead to a "nonactivist" approach to substantive review, far less to its total abandonment. I also suggest that a vigorous embrace of structural rules may well lead to more, rather than less, overall judicial protection of fundamental rights.

Constitution-Making In Africa: Assessing Both The Process And The Content, Muna Ndulo

Cornell Law Faculty Publications

No abstract provided.

The 2000 Presidential Election: Archetype Or Exception?, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Religious Liberty At Home And Abroad: Reflections On Protecting This Fundamental Freedom, Orrin G. Hatch

BYU Law Review

No abstract provided.