Constitutional Law Commons^™

American Indians, Crime, And The Law, Kevin K. Washburn

Michigan Law Review

This Article evaluates the federal Indian country criminal justice regime, not against norms of Indian law and policy, but against those of criminal law and policy. Specifically, this Article evaluates the federal constitutional norms that lie at the heart of American criminal justice and that are designed to ensure the legitimacy of federal criminal trials. Toward that end, Part I presents a critical description of key facets of the federal Indian country criminal justice system. Part II begins the critical evaluation by evaluating a key institutional player in the federal system, the federal prosecutor. It highlights the handicaps faced by …

Taxation And The Constitution: How To Read The Direct-Tax Clauses, Erik M. Jensen

Faculty Publications

This essay responds to Professor Bruce Ackerman, who had challenged the author's understanding of the Direct-Tax Clauses of the Constitution and the Sixteenth Amendment to that Constitution.

Imrei Chayim V. Wisel, Yigal Mersel (Registrar)

Translated Opinions

The District Court annulled an arbitration award.  A party wishes to appeal that decision in this Court.  Section 38 of the Arbitration Law, 5728-1968 (hereinafter: the arbitration law) determines that a decision made pursuant to that law can be appealed by permission.  The party argues before the Registrar of the Court that the appeal should be heard, despite that, as an appeal as of right, since section 17 of Basic Law: Judicature (hereinafter: the basic law) determines that "a judgment of a court of the first instance can be appealed as of right, excepting a judgment of the Supreme Court", …

Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer

ExpressO

The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three “guideposts” set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant's conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any “civil or criminal penalties that could be imposed for comparable misconduct.” Following up on this pronouncement …

Critical Theory And The Loneliness Of The Tax Prof, Erik M. Jensen

Faculty Publications

This essay, prepared for a symposium on critical theory and tax law, has two goals: to suggest why feminist theory and critical race theory are spreading in taxation and to discuss some dangers of that criticism. The author evaluates three examples of the new criticism: an article on critical race theory by Professors Moran and Whitford; an article on feminist statutory interpretation by Professor Handelman; and a book, Taxing Women, by Professor McCaffery.

The Apportionment Of ‘Direct Taxes’: Are Consumption Taxes Constitutional?, Erik M. Jensen

Faculty Publications

In debates about reorienting the American revenue system, nearly everyone assumes the Constitution is irrelevant. With few exceptions, the tax provisions in the original Constitution - particularly the direct-tax apportionment rule and the uniformity rule - have been interpreted to be paper tigers. And in only one major case has the Sixteenth Amendment, which excepts "taxes on incomes" from apportionment, been held to limit congressional power.

S Rejecting conventional wisdom, this Article argues that some consumption taxes would violate constitutional norms. The Article focuses on the requirement that “direct taxes” be apportioned among the states on the basis of population. …

Popular Sovereignty, Judicial Supremacy, And The American Revolution: Why The Judiciary Cannot Be The Final Arbiter Of Constitutions, William J. Watkins

ExpressO

Key to understanding the connection between popular sovereignty and judicial review is the historical development of the theory of sovereignty in England and America. Section One of this article traces the defeat of divine right theory in England and the emergence of parliamentary sovereignty. Section Two considers the American colonists’ rejection of parliamentary sovereignty during the Revolution and their establishment of popular sovereignty as the cardinal principle of American constitutionalism. Section Three studies English precedent often cited as providing the basis for the American doctrine of judicial review and shows that these English cases were simply exercises in statutory construction …

The Imaginary Connection Between The Great Law Of Peace And The United States Constitution: A Reply To Professor Schaaf, Erik M. Jensen

Faculty Publications

This article challenges the politically correct theory advanced in a 1989 article by Gregory Schaaf, “From the Great Law of Peace to the Constitution of the United States: A Revision of America’s Democratic Roots.” Professor Schaaf argued that large parts of the U.S. Constitution were based on the Great Law of Peace, the founding document of the Iroquois Confederacy. This article points to the lack of primary authority supporting such a counterintuitive proposition and questions the likelihood that Iroquois principles could have silently influenced American founders. Finally, the article questions whether it is desirable to try to further the status …

An Examination Of The Gacaca Tribunals In Rwanda As A Practical Means Of Delivering Mass Justice, Myra Oscar Sabongi

Archived Theses and Dissertations

[abstract not provided]

Living By The Sword: The Free Exercise Of Religion And The Sikh Struggle For The Right To Carry A Kirpan, Rishi S. Bagga

ExpressO

Sikhism is a 500 year old religion with a growing presence in the United States. However, one of the articles of faith required for Sikhs, a kirpan (a ceremonial sword), conflicts with the norms of American life for these often misunderstood people. This paper gives a brief primer on Sikhism and discusses some of the day-to-day problems and recent issues facing kirpan-carrying Sikhs in North America. Upon reviewing the current state of free exercise jurisprudence as applied to the kirpan, I outline several suggestions for the acceptance and accommodation of kirpans.

Commentary: The Extraordinary Revival Of Dred Scott, Erik M. Jensen

Faculty Publications

In a widely reprinted 1987 speech, Justice Thurgood Marshall characterized the Supreme Court's decision in Dred Scott v. Sandford as accurately reflecting the Founders' views on many subjects, including race. The author argues that Dred Scott was dead wrong on almost all counts-as many contemporaneous commentators, including Abraham Lincoln, understood. It was not helpful to our understanding of history and constitutional law for Justice Marshall to have resuscitated this horribly misguided decision.

Brief Of Law Professors David D. Cole Et Al. As Amici Curiae Supporting Petitioner (Geneva-Enforceability), Hamdan V. Rumsfield, No. 05-184 (U.S. Jan. 6, 2006), David Cole, Julie R. O'Sullivan, Carlos Manuel Vázquez

U.S. Supreme Court Briefs

No abstract provided.

Dan The Xenophobe Rides The A-Train Or The Modern, "Secret" Racist: Unconscious Racism In `Enlightened America' And The Destructive Stereotypes That Fuel It, Richard D. Salgado

ExpressO

A short story style exploration of unconscious racism in modern "enlightened" America.

The Penumbral Public Domain: Constitutional Limits On Quasi-Copyright Legislation, Aaron K. Perzanowski

Faculty Publications

This Article attempts to reconcile the breadth of the modern Commerce Clause with the notion of meaningful and enforceable limits on Congress' copyright authority under Article I, Section 8, Clause 8.

The Article aims to achieve two objectives. First, it seeks to outline a general approach to identifying and resolving inter-clause conflicts, sketching a methodology that has been lacking in the courts' sparse treatment of such conflicts. Second, it applies that general framework to the copyright power in order to outline the scope of constitutional prohibitions against quasi-copyright protections. In particular, this application focuses on the federal anti-bootlegging statutes and …

Protecting Posterity: Economics, Abortion, Politics, And The Law, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

Empiricizing The Equal Protection Approach To Abortion, Calvin Terbeek

McGeorge Law Review

No abstract provided.

Lex-Praxis Of Education Informational Privacy For Public Schoolchildren, Susan P. Stuart

Law Faculty Publications

No abstract provided.

From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber

Faculty Scholarship

No abstract provided.

A Prayer For Constitutional Comparativism In Eighth Amendment Cases, David C. Gray

Faculty Scholarship

No abstract provided.

Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber

Faculty Scholarship

This paper interprets the constitution of 1791 in light of the constitution of 1787. The persons responsible for the original constitution thought they had secured fundamental rights by a combination of representation, the separation of powers, and the extended republic. The Bill of Rights, in their view, was a minor supplement to the strategies previously employed for preventing abusive government practices. Proposed amendments were less a list of fundamental freedoms than an enumeration of those rights likely to appease moderate anti-Federalists. That many vaguely phrased rights lacked clear legal meaning was of little concern to their Federalist sponsors, who trusted …

Leading A Constitutional Court: Perspectives From The Federal Republic Of Germany, Peter E. Quint

Faculty Scholarship

This article, which was a contribution to a Symposium on the office of the Chief Justice of the United States, compares that office with the office of President of the Federal Constitutional Court of Germany. The article concludes that, while the American Chief Justice possesses more authority in most formal respects, the President of the German Court has on occasion exercised an informal public or private influence that goes well beyond anything of the sort that has been attempted (recently at least) by the American Chief Justice.

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Faculty Scholarship

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the …

"The Most Extraordinarily Powerful Court Of Law The World Has Ever Known"? - Judicial Review In The United States And Germany, Peter E. Quint

Faculty Scholarship

No abstract provided.

Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber

Faculty Scholarship

No abstract provided.

Impeachment: Advice And Dissent, Susan Low Bloch

Georgetown Law Faculty Lectures and Appearances

In this lecture, the author describes how she first met Professor William Van Alstyne at a Federalist Society debate at Wayne State Law School in Detroit. Their colleague, the late Professor Joe Grano, had invited them to discuss whether one can sue a sitting president. Of course, this debate was not merely academic. Paula Jones had begun her sexual harassment suit against President Clinton and the suit was on its way to the Supreme Court. They got together before the debate and walked around the campus. The author thought that the president could not be sued while in office. Although …

The Selective Capacity Of The Likely To Become A Public Charge Clause In The Visa Issuance Process, Camila Morsch

Theses, Dissertations and Capstones

This paper provides an empirical examination of how the Likely to Become a Public Charge Clause (LPCC) is used in the American visa issuance process. This work covers literature on the logic and usage of the LPCC since the late 1800’s to present, suggesting administrative use of the LPCC expands according to different circumstances beyond its intended purposes. The quantitative portion of this work evaluates the use of the LPCC (for both immigrant applicant and nonimmigrant applicant populations) from 1966 to 2002 to ascertain the effect of economic and security conditions on the use of the LPCC. Applied Statistical Logistic …

The Price Of Pretrial Release: Can We Afford To Keep Our Fourth Amendment Rights?, Melanie D. Wilson

Scholarly Articles

The Fourth Amendment serves an important constitutional function. It protects the privacy of Americans from intrusions on their personal security. Few rights are held more sacred. When a person is arrested and faces the real likelihood of pretrial detention in jail, the person risks not only a reduction in his privacy rights, but also a loss of his liberty. In such circumstances, the arrested person should be able to bargain away some of his Fourth Amendment rights in exchange for the additional freedoms associated with release to home.

Undoubtedly, defendants forced to choose between incarceration and Fourth Amendment rights will …

The Political Economy Of Education Federalism, Michael Heise

Cornell Law Faculty Publications

The No Child Left Behind Act represents the federal government's most significant foray into the nation's elementary and secondary public school policymaking terrain. Although the Act undertakes unassailable policy goals, its critics argue that it represents an unwarranted federal intrusion into education policymaking, generates unintended policy consequences, and amounts to an unfunded federal mandate. Constitutionalists dwell on the Act's threat to structural federalism as it plausibly strains Congress's conditional spending authority. The coercive force that federal education funds exert on local school districts and states attracts particular attention. The No Child Left Behind Act, however, safely navigates through an even …

Failed Lessons Of History: The Predictable Shortcomings Of The Partial-Birth Abortion Ban Act, Nancy Kubasek, Daniel Tagliarina

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.

Mental Health Courts And Title Ii Of The Ada: Accessibility To State Court Systems For Individuals With Mental Disabilities And The Need For Diversion, S. Elizabeth Malloy

Faculty Articles and Other Publications

Access to the judicial system, a fundamental right that has paramount importance in our society, can often present obstacles to people with disabilities in a variety of significant ways. Yet Title II mandates that state and local judicial facilities be accessible to individuals with disabilities. Recent shifts in paradigmatic approaches to special populations such as drug offenders and offenders with mental disabilities have lead to the creation of mental health courts specifically designed to address the needs of the persons with mental disabilities in order to avoid incarceration. Early outcomes in states like Ohio suggest mental health courts may better …