Constitutional Law Commons^™

Article 9 Of The Constitution Of Japan And Procedural And Substantive Heuristics For Consensus, Mark A. Chinen

Faculty Articles

Japan is considering changes to its constitution, including Article 9, which prohibits it from maintaining a military force. If amendments are made, it would mark the first time the Japanese constitution has been amended since its establishment in 1947. Professor Chinen examines the debates on Article 9 using scholarship on constitutions as providing heuristics for decision-making. Constitutions help overcome the problems of emotion and time-inconsistency. They also enable societies of different deliberative groups to avoid the pitfalls of deliberation by requiring groups to interact with one another and by providing opportunities for compromise through what Cass Sunstein refers to as …

The Chimera Of The Real And Substantial Connection Test, Joost Blom, Elizabeth Edinger

All Faculty Publications

This paper was first presented at a symposium held at the University of British Columbia Faculty of Law on November 5 and 6, 2004 to honour the late Mr. Justice Kenneth Lysyk, a former faculty member and Dean of Law at U.B.C. For this paper we chose a topic that combines both of Ken Lysyk's favourite subjects. We set out to examine how the Supreme Court of Canada has used the "real and substantial connection" test in the conflict of laws and in related areas of constitutional law. This test has been adopted for a variety of purposes. We suggest …

Prisoner Voting Rights In Canada: Rejecting The Notion Of Temporary Outcasts, Debra Parkes

All Faculty Publications

This book chapter examines a successful prisoner voting rights case in Canada and suggests that the opposition in the U.S. to postincarceration legal, social, and economic consequences of criminal conviction would benefit from attention to the way the continued construction of prisoners as temporary outcasts resonates positively in society, assisting to legitimate the myriad penalties and consequences imposed on prisoners' release.

Section 7 And The Politics Of Social Justice, Margot Young

All Faculty Publications

This paper examines the transformative potential of section 7 of the Canadian Charter of Rights and Freedoms and its potential usefulness in the struggle against social and economic injustice central to Canadian society. Can section 7 of the Charter encompass the protection of social and economic rights? In other words, can section 7 be interpreted to capture the progressive goal of economic redistribution? Three separate issues are considered, each providing different perspectives on the issue. First jurisprudence (doctrine) is considered, i.e. how section 7 can encompass substantive claims to economic redistributive justice. Secondly, the institutional appropriateness and justiciability of socio-economic …

Is There A "Religious Question" Doctrine?: Judicial Authority To Examine Religious Practices And Beliefs, Jared Goldstein

Law Faculty Scholarship

No abstract provided.

Illusions Of Liberty And Equality: An "Alien's" View Of Tiered Scrutiny, Ad Hoc Balancing, Governmental Power, And Judicial Imperialism, Michael A. Scaperlanda

Faculty Articles

No abstract provided.

Constitutionally Excluded Confessions: Applying America's Lessons To A Democratic Iraq, Joseph Thai

Faculty Articles

Torture as a past and present tool of interrogation in Iraq threatens to undermine the country's struggle towards democracy. In confronting the substantial task of reforming interrogation practices and their public perception, Iraqis may draw valuable lessons from the United States' experience with the constitutional regulation of the admissibility of confessions in criminal cases. After reviewing the constitutional bases relied on by the U.S. Supreme Court to exclude confessions, this Article argues that writing Miranda-like rules into the Iraqi constitution would go far in alleviating the especially coercive environment of custodial interrogation in Iraq and restoring public confidence in the …

A Troubling Equation In Contracts For Government Funded Scientific Research: "Sensitive But Unclassified" = Secret But Unconstitutional, Leslie Gielow Jacobs

McGeorge School of Law Scholarly Articles

No abstract provided.

The Powers That Be: A Reexamination Of The Federal Courts' Rulemaking And Adjudicatory Powers In The Context Of A Clash Of A Congressional Statute And A Supreme Court Rule, Bernadette Bollas Genetin

Con Law Center Articles and Publications

No abstract provided.

Judicial Review And Nongeneralizable Cases, Neal Devins, Alan J. Meese

Faculty Publications

No abstract provided.

The First Amendment's Original Sin, Lee C. Bollinger

Faculty Scholarship

Times of war place considerable stress on civil liberties, especially ones protected by the First Amendment. When the nation must gather itself to fight an enemy who is intent on killing us, it is perhaps only natural that our tolerance for the usual disorder of dissent will decline. When everyone has to sacrifice for the common good, when fellow citizens are dying in that cause, the costs of speech are visible and serious. Dissent may dissuade or discourage soldiers from fighting; sowing doubt may weaken resolve just when it's needed most; falsehoods and misinformation may lead to catastrophic shifts of …

Should Ideology Matter In Selecting Federal Judges?: Ground Rules For The Debate, Dawn E. Johnsen

Cardozo Law Review

No abstract provided.

Supermajority Rules And The Judicial Confirmation Process, John O. Mcginnis, Michael B. Rappaport

Cardozo Law Review

No abstract provided.

Judicial Selection: Ideology Versus Character, Lawrence B. Solum

Cardozo Law Review

No abstract provided.

Untied States: American Expansion And Territorial Deannexation, Christina Duffy Ponsa-Kraus

Faculty Scholarship

At the beginning of the twentieth century the United States laid claim to an overseas empire, consolidating its victory in the Spanish-American War by adopting novel structures of colonial rule over a brace of newly acquired island territories. A set of Supreme Court decisions known collectively as the Insular Cases established the legal authorization for this undertaking. As the traditional story goes, they did so by holding that the U.S. Constitution did not "follow the flag" to the recently annexed possessions in the Pacific Ocean and the Caribbean Sea: thus unfettered, an ambitiously imperial nation could attend to the business …

Abandoning Recess Appointments?: A Comment On Hartnett (And Others), Michael Herz

Cardozo Law Review

No abstract provided.

Constitutional Law As Political Spoils, William P. Marshall

Cardozo Law Review

No abstract provided.

Judicial Selection And Democratic Theory: Demand, Supply, And Life Tenure, Judith Resnik

Cardozo Law Review

How ought a democracy select its judges? Critics in Canada, England, and Wales invoke the democratic values of accountability and transparency to call for a diminution in prime ministerial control over judicial appointments. In the United States, Article III of the Constitution's text directs that the President nominate - with the advice and consent of the Senate - life-tenured federal judges. Bitter conflicts about particular nominees have produced many proposals for changes of that system. And in those states that rely on various forms of judicial election, concerns focus on funding and campaigning. In short, both globally and locally, democracies …

The Misplaced Flight To Substance, Thomas W. Merrill

Faculty Scholarship

Courts and commentators have struggled for years to come up with a substantive test for what kinds of condemnations are for a "public use." Does public use mean government ownership and control of property after it is taken? This would preclude delegation of eminent domain to common carriers and utilities. Does public use mean public access to the property after it is taken? This would preclude using eminent domain to acquire facilities off-limits to the public, like prisons.

Faced with these problems of under-inclusion, courts have gravitated to the idea that public use means public purpose. The U.S. Supreme Court …

Medellin V. Dretke: Federalism And International Law, Curtis A. Bradley, Lori Fisler Damrosch, Martin Flaherty

Faculty Scholarship

This is an edited version of a debate held at Columbia Law School on February 21, 2005.

War And Uncertainty, Lori Fisler Damrosch

Faculty Scholarship

When the current phase of our conflict with Iraq began in March 2003, much was unknown. Our political leaders based the case for war on the conviction that Iraq possessed weapons of mass destruction (WMD) that had not been eliminated despite twelve years of grinding sanctions. Congress voted in October 2002 to authorize renewed use of military force against Iraq, acting on the basis of representations by the Bush Administration that Iraq had been actively concealing WMD stockpiles and programs from the United Nations inspectors who had a mandate to verify the complete destruction of Iraq's WMD capability. Facts were …

Schiavo And Klein (Symposium), Evan H. Caminker

Articles

When teaching federal courts, I sometimes find that students are slow to care about legal issues that initially seem picayune, hyper-technical, and unrelated to real-world concerns. It takes hard work to engage students in discussion of United States v. Klein,1 notwithstanding its apparent articulation of a foundational separation of powers principle that Congress may not dictate a "rule of decision" governing a case in federal court. A Civil War-era decision about the distribution of war spoils, one the Supreme Court has hardly ever cited since and then only to distinguish it, in cases involving takings and spotted owls? Yawn.

Grappling With The Meaning Of 'Testimonial', Richard D. Friedman

Articles

Crawford v. Washington, has adopted a testimonial approach to the Confrontation Clause of the Sixth Amendment. Under this approach, a statement that is deemed to be testimonial in nature may not be introduced at trial against an accused unless he has had an opportunity to cross-examine the person who made the statement and that person is unavailable to testify at trial. If a statement is not deemed to be testimonial, then the Confrontation Clause poses little if any obstacle to its admission.2 A great deal therefore now rides on the meaning of the word "testimonial."

Holmes On The Lochner Court, Gerald F. Leonard

Faculty Scholarship

For this symposium on Lochner, I examined the jurisprudence of the man commonly thought to be the Lochner majority's fiercest foe, Justice Oliver Wendell Holmes, Jr. Holmes wrote the famous dissent in Lochner and other cases of the era. But as Barry Cushman notes in his contribution to this symposium, Holmes joined many a Lochner-era majority in striking down any number of economic regulations. Holmes's Fourteenth Amendment opinions suggest: 1) that, while Holmes advocated a somewhat more pointed rule of deference to legislatures than did most of his colleagues, his language in this respect was far less radical than is …

Discretion As Delegation: The "Proper" Understanding Of The Nondelegation Doctrine, Gary S. Lawson

Faculty Scholarship

Does the Constitution limit the extent to which Congress can grant discretion to other actors? The traditional nondelegation doctrine says yes, though advocates of the doctrine strongly disagree about the source of that principle and the location of the line between permissible and impermissible discretion. A number of modern scholars and judges, however, doubt whether the Constitution contains any such principle. This article demonstrates that the Constitution constrains Congress's ability to grant discretion to other actors through the requirement that laws for carrying federal power into execution must be "necessary and proper." The words "necessary" and "proper" have distinct constitutional …

Voice Over Internet Protocol And The Wiretap Act: Is Your Conversation Protected?, Daniel B. Garrie, Matthew J. Armstrong, Donald P. Harris

Seattle University Law Review

10101101: Is this sequence of digits voice or data? To a computer, voice is a sequence of digits and data is a sequence of digits. The law has defined 10101101 to be data, and 10101001 to be voice communications. Courts have constructed a distinction between data, 10101101, and voice, 10101001. However, that distinction is blurred when voice and data are simultaneously transmitted through the same medium. The courts forbid third parties to tap or monitor voice communications, yet permit data packets to be tracked, stored, and sold by third parties with the implied consent of either party engaged in the …

Symposium: Feminist Theory And The Erosion Of Women's Reproductive Rights: The Implications Of Fetal Personhood Laws And In Vitro Fertilization, Lisa Mclennan Brown

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Elk Grove Unified School District V. Newdow, Rachel Prouser

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Web Surfing In Chilly Waters: How The Patriot Act's Amendments To The Pen Register Statute Burden Freedom Of Inquiry, James Mcclintick

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Party Parity: A Defense Of The Democratic Party Equal Division Rule, Lisa Schnall

American University Journal of Gender, Social Policy & the Law

No abstract provided.