Constitutional Law Commons^™

In Praise Of A Skeletal Apa: Judicial Discretion, Remedies For Agency Inaction And Apa Amendment, William D. Araiza

Faculty Scholarship

No abstract provided.

First Amendment Decisions - 2002 Term, Joel Gora

Faculty Scholarship

No abstract provided.

Assimilation, Toleration, And The State's Interest In The Development Of Religious Doctrine, Richard W. Garnett

Journal Articles

Thirty-five years ago, in the context of a church-property dispute, Justice William Brennan observed that government interpretation of religious doctrine and judicial intervention in religious disputes are undesirable, because when civil courts undertake to resolve [doctrinal] controversies..., the hazards are ever present of inhibiting the free development of religious doctrine and of implicating secular interests in matters of purely ecclesiastical concern. This statement, at first, seems wise and fittingly cautious, even unremarkable and obvious. On examination, though, it turns out to be intriguing, elusive, and misleading. Indeed, Justice Brennan's warning presents hazards of its own, and its premises - if …

Misusing International Sources To Interpret The Constituion, Roger P. Alford

Journal Articles

This article addresses the trend toward using international sources to interpret the Constitution. While recognizing that international sources may be appropriately used as persuasive authority in certain types of constitutional analysis, this article argues that such reliance is inappropriate if done improperly. There are four misuses of international sources that serve as the focus of the article.

The first misuse of international sources - particularly evident in death penalty litigation - occurs when the global opinions of humankind are ascribed constitutional value to thwart the domestic opinions of Americans. The article suggests that international norms cannot be internalized within our …

Fundamental Human Rights Compared In Two Progressive Constitutions: Japan And Montana, Fritz Snyder

Faculty Law Review Articles

This article focuses on certain of the fundamental or inalienable rights of the Japan Constitution and compares and contrasts them with their counterparts in the Montana Constitution.

The Supreme Court Encounters The New Deal, Barry Cushman

Journal Articles

The legislative triumphs of the New Deal did not occur without controversy or judicial review. In this article Barry Cushman explores how the Supreme Court responded to a variety of New Deal initiatives and assesses some of the resulting changes in constitutional doctrine. Adapted from Encyclopedia of the Great Depression, 1st. Edition, by Barry Cushman, ©2004, Macmillan Reference USA. Reprinted by permission of The Gale Group.

The Equal Access Act: Still Controversial After All These Years, Leora Harpaz

Faculty Scholarship

Over its twenty-year history, the Equal Access Act has continued to spark controversy. Despite a large number of court decisions that have interpreted the scope of the statute, those controversies have not yet subsided nor are they likely to for the foreseeable future. Interpretation of the Equal Access Act is complicated by ambiguities in the statute's language and the complex relationship that exists between the statute and the First Amendment's prohibition on religious establishments combined with its protection for freedom of expression. The delicate constitutional balancing act that the statute attempts to accomplish complicates the task of statutory interpretation in …

Maybe Not The Best Solution, But A Solution: The German Foundation Agreement, Jolie Bell

Cardozo Journal of Conflict Resolution

This note will question whether the processes devised by the Agreement really favor survivors, helping them to realize some form of compensation for their insurance polices. Despite the efforts of the Agreement to prevent litigation of such insurance claims, there are still cases being filed, and legislation being proposed, to try to facilitate compensatory actions at a faster pace. While the Agreement on its face seems to be a welcome solution to the vast amount of litigation, it may be that the Agreement was a convenient way for Germany to dispose of the hundreds of thousands of life insurance policy …

Federalism Re-Constructed: The Eleventh Amendment's Illogical Impact On Congress' Power, Marcia L. Mccormick

All Faculty Scholarship

The Constitution is designed to protect individual liberty and equality by diffusing power among the three branches of the federal government and between the federal and state governments, and by providing a minimum level of protection for individual rights. Yet, the Supreme Court seems to think that federalism is about protecting states as states rather than balancing governmental power to protect individuals. In the name of federalism, the Supreme Court has been paring away at Congress' power to enact civil rights legislation. In doing so, it has transformed the Fourteenth Amendment into a vehicle for protecting states rights rather than …

If The Shoe Fits: Kasky V. Nike And Whether Corporate Statements About Business Operations Should Be Deemed Commercial Speech, Jason A. Cade

Scholarly Works

This Note argues that the Kasky court was correct to recognize that today's commercial speech encompasses communications beyond traditional advertisements about products or services. Corporations are aware that a sizeable number of consumers rely on their statements about their business operations when making investment and purchasing decisions. In order to ensure the accuracy of these statements, and thereby protect the integrity of the market, this speech is properly considered commercial speech.

Apprendi And Federalism, Peter B. Rutledge

Scholarly Works

Since the emergence of the Apprendi majority and its newly minted (and evolving) constitutional limits on criminal punishment, many commentators have begun to address its implications for the horizontal relations between the branches of government — between legislators and courts, between judges and juries, and between judges and prosecutors. Less widely addressed, though equally (if not more) important, has been the Apprendi doctrine’s implications for vertical relations, particularly federalism.

This essay seeks to begin to fill that lacuna in the literature. Part I explains how Apprendi undermines principles of federalism, a curious tension because several of Apprendi’s strongest defenders, particularly …

Defining Democracy: The Supreme Court's Campaign Finance Dilemma, Lori A. Ringhand

Scholarly Works

On December 10, 2003 the United States Supreme Court issued its decision in McConnell v. FEC. In McConnell, the Court was asked to determine the constitutionality of the Bipartisan Campaign Reform Act ("BCRA"). A divided Court, in a deeply fractured decision in which six justices wrote individual opinions, upheld the major provisions of the legislation. Yet despite the almost 300 pages of reasoning provided by the Court, and a voluminous record developed by the district court, the Justices could not agree on what purportedly is the central issue in campaign finance law: whether the challenged regulations were necessary …

Guantánamo, Diane Marie Amann

Scholarly Works

This article addresses not only offshore detainees at Guantánamo and elsewhere, but also the two Americans and one Qatari held in the United States as enemy combatants. It focuses on the critical issues in U.S. litigation - extraterritoriality and deference - yet also examines the scope of detention and the propriety of proposed special tribunals. After demonstrating that in the wake of September 11, 2001, no U.S. constitutional precedent governed these issues, the article then looks to norms drawn from international humanitarian and human rights law to aid decision. The Supreme Court increasingly consults such external norms as persuasive authority; …

Overcoming Hiddenness: The Role Of Intentions In Fourth Amendment Analysis, Daniel B. Yeager

Faculty Scholarship

This Article rehearses a response to the problems posed to and by the Supreme Court's attempts to work out the meaning and operation of the word "search." After commencing Part II by meditating on the notion of privacy, I take up its relation to the antecedent suspicion or knowledge that Fourth-Amendment law requires as a justification for all privacy invasions. From there, I look specifically at that uneasy relation in Supreme Court jurisprudence, which has come to privilege privacy over property as a Fourth Amendment value. From there, Part III reviews the sources or bases that can tell us what …

Speech And Strife, Robert L. Tsai

Scholarly Articles in Law Reviews & Journals

The essay strives for a better understanding of the myths, symbols, categories of power, and images deployed by the Supreme Court to signal how we ought to think about its authority. Taking examples from free speech jurisprudence, the essay proceeds in three steps. First, Tsai argues that the First Amendment constitutes a deep source of cultural authority for the Court. As a result, linguistic and doctrinal innovation in the free speech area have been at least as bold and imaginative as that in areas like the Commerce Clause. Second, in turning to cognitive theory, he distinguishes between formal legal argumentation …

Turning The Endangered Species Act Inside Out, Jud Mathews

Faculty Scholarship

Within a week, both the Fifth and D.C. Circuits upheld the takings prohibitions of the Endangered Species Act (ESA) of 1973, as applied to species found only in single states, against Commerce Clause challenges. Both cases reach the same result, but the legal analysis used to get there could hardly be more different. In GDF Realty, the Fifth Circuit found the requisite "substantial impact" on commerce by treating the species themselves as commodities and aggregating the economic impact of all endangered species "takings". The D.C. Circuit, by contrast, held in Rancho Viejo that the true object of ESA regulation …

The Original Meaning Of The Judicial Power, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this paper, the author refutes any claim that judicial review was invented in Marbury v. Madison, or that, because it is contrary to the original meaning of the Constitution, it must be justified by some nonoriginalist interpretive methodology. He will do so, not by discerning the shadowy and often counterfactual "intentions" of the founding generation, but by presenting as comprehensively as he can what the founders actually said during the constitutional convention, in state ratification conventions, and immediately after ratification. These statements, taken cumulatively, leave no doubt that the founders contemplated judicial nullification of legislation enacted by the …

The Priority Of Morality: The Emergency Constitution's Blind Spot, David Cole

Georgetown Law Faculty Publications and Other Works

Three aspects of Bruce Ackerman’s thesis, which is a proposal to legitimate the practice of suspicionless preventive detention during emergencies, are discussed in this essay—its premises, its efficacy, and its morality. Part I critiques three of Ackerman’s premises—his underestimation of courts and overestimation of legislatures as guardians of liberty, his misguided belief that the supermajoritarian escalator provides a one-size-fits-all solution to the conundrum of emergency powers, and his contention that the short-lived character of emergencies makes it sensible to cede to a minority of our popular representatives control over critically important and largely unpredictable decisions concerning the appropriate duration of …

The Divergence Of Constitutional And Statutory Interpretation, Kevin M. Stack

Vanderbilt Law School Faculty Publications

There is a peculiar point of agreement between prominent defenders of originalist and dynamic interpretive methods, that their preferred interpretive approach applies not just to statutes or to the Constitution, but to both. In this Article, I challenge this shared position - as represented by Justice Antonin Scalia's originalist textualism and Professor William Eskridge's dynamic interpretive theory. I argue that the democratic and rule-of-law values that these theories invoke in fact suggest that different interpretive approaches govern constitutional and statutory interpretation. I contend, first, that disjunctures between the democratic justification for originalism in constitutional and statutory interpretation reveal the distinct …

Strikes Through The Prism Of Duties: Is There A Fundamental Duty To Strike Under The Indian Constitution?, Shubhankar Dam

Research Collection Yong Pung How School Of Law

Much of the debates on the legality of strikes under the Indian Constitution has been on the issue of a right to strike. This paper argues that the constitutionality of strikes may be analysed through the prism of duties, i.e. fundamental duties under Part IVA of the Constitution. Strikes were an integral part of the ideals that inspired India's national struggle against imperialism. And, in this sense, when article 51A exhorts Indians to cherish and follow the noble ideals that inspired our freedom struggle, it includes a fundamental duty to strike. Invoking the philosophy of Mahatma Gandhi, the paper argues …

Peoples Union For Civil Liberties V Union Of India: Is Indian Democracy Dependent On A Statute?, Shubhankar Dam

Research Collection Yong Pung How School Of Law

What is the status of a right to vote in the Indian legal system? Is the right a constitutional/fundamental right? Or is it simply a statutory right? Contrary to the decisions of the Supreme Court in the last five decades, this paper argues that the right to vote is a constitutional right: its textual foundation may be located in Article 326. And, in this sense, the Supreme Court has erred in construing the right to vote as a statutory right under the Representation of Peoples Act, 1951. Interpreting the right to vote as a statutory right has larger implications for …

The Aretaic Turn In Constitutional Theory, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

The author argues that the aretaic turn in constitutional theory is an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators. Part I, The Most Dysfunctional Branch, advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions.

Part II, Institutionalism and Constitutional …

What Brown Teaches Us About The Rehnquist Court's Federalism Revival, Neal Devins

Faculty Publications

No abstract provided.

Aliens, The Internet, And "Purposeful Availment": A Reassessment Of Fifth Amendment Limits On Personal Jurisdiction, Wendy Collins Perdue

Georgetown Law Faculty Publications and Other Works

This Article first considers the Fourteenth Amendment cases and argues that the constitutional limits on the jurisdictional authority of state courts reflect a view about the limits of state authority. It then turns to the Fifth Amendment and, after considering the practices of other nations and lessons from prescriptive jurisdiction, argues that the United States's sovereign authority should allow it to assert personal jurisdiction solely on the basis of effects in the United States, without a requirement of "purposeful availment." It further argues that concerns about reasonableness should be addressed at the subconstitutional level. This Article is built on two …

Lawrence And Garner: The Love (Or At Least Sexual Attraction) That Finally Dared Speak Its Name, Paris R. Baldacci

Cardozo Journal of Equal Rights & Social Justice

The article examines the legal evolution from *Bowers v. Hardwick* to Lawrence v. Texas, highlighting how the latter marked a pivotal shift in recognizing LGBTQ+ rights by emphasizing personal autonomy and dignity. It underscores the significance of narrative strategies in shaping judicial decisions, particularly in *Lawrence*, where the plaintiffs' personal stories influenced the Court's ruling.

Diversity And The Practice Of Interest Assessment, Robert F. Nagel

Publications

No abstract provided.

Not For Attribution: Government's Interest In Protecting The Integrity Of Its Own Expression, Helen Norton

Publications

Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers' views are not mistakenly attributed to the government. Consider, for example, Virginia's efforts to ban the Sons of Confederate Veterans' display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of "hate" or "heritage," Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier "VIRGINIA." The Fourth Circuit was unpersuaded, holding that the …

Tacking Left: A Radical Critique Of Grutter, Daria Roithmayr

Publications

No abstract provided.

Regulating Genetically Modified Foods: Is Mandatory Labeling The Right Answer?, Jonathan H. Adler

Faculty Publications

What I want to talk about are some legal issues relating to labeling and, in particular, constitutional issues relating to mandatory labeling for genetically modified foods or food products that may contain genetically modified components. This is a separate issue from whether or not the FDA, or some other agency, has sufficient statutory authority at present to mandate labeling, and that is something worth discussing. Even if they do have such authority, or even if Congress tomorrow were to give the FDA such authority or were to require the FDA to impose labels on genetically modified foods, or if a …

Better Lucky Than Good, Neal Devins

Faculty Publications

No abstract provided.