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Constitutional Law Commons™

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2008

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Articles 31 - 60 of 749

Full-Text Articles in Constitutional Law

The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum Dec 2008

The Myth And The Reality Of American Constitutional Exceptionalism, Stephen Gardbaum

Michigan Law Review

This Article critically evaluates the widely held view inside and outside the United States that American constitutional rights jurisprudence is exceptional. There are two dimensions to this perceived American exceptionalism: the content and the structure of constitutional rights. On content, the claim focuses mainly on the age, brevity, and terseness of the text and on the unusually high value attributed to free speech. On structure, the claim is primarily threefold. First, the United States has a more categorical conception of constitutional rights than other countries. Second, the United States has an exceptionally sharp public/private division in the scope of constitutional …

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A Narrow Path To Diversity: The Constitutionality Of Rezoning Plans And Strategic Site Selection Of Schools After Parents Involved, Steven T. Collis Dec 2008

A Narrow Path To Diversity: The Constitutionality Of Rezoning Plans And Strategic Site Selection Of Schools After Parents Involved, Steven T. Collis

Michigan Law Review

Justice Kennedy's concurrence in Parents Involved in Community Schools v. Seattle School District Number 1 raised an important and timely constitutional issue: whether the Constitution permits K-12 public school districts not under existing desegregation orders to use site selection of new schools or rezoning plans to achieve racial diversity. Numerous scholars and journalists have interpreted Justice Kennedy's concurrence as explicitly answering the question in the affirmative. This Note argues that the opposite is true. Justice Kennedy's past jurisprudence, as well as his language in Parents Involved, favors the use of strict scrutiny. Indeed, in Parents Involved, Justice Kennedy …

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German Equal Protection: Substantive Review Of Economic Measures, Edward J. Eberle Dec 2008

German Equal Protection: Substantive Review Of Economic Measures, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

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How The United States Government Sacrifices Athletes' Constitutional Rights In The Pursuit Of National Prestige, Dionne L. Koller Dec 2008

How The United States Government Sacrifices Athletes' Constitutional Rights In The Pursuit Of National Prestige, Dionne L. Koller

BYU Law Review

No abstract provided.

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The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein Dec 2008

The Right To Silence Helps The Innocent: A Response To Critics, Alex Stein

Cardozo Law Review

This Article responds to the numerous critics of Daniel J Seidmann & Alex Stein, The Right to Silence Helps the Innocent: A Game-Theoretic Analysis of the Fifth Amendment Privilege, 114 HARV. L. REV. 430 (2000). Under Seidmann and Stein's theory, the right to silence protects innocents who find themselves unable to corroborate their self-exonerating accounts by verifiable evidence. Absent the right, guilty criminals would pool with innocents by making false self-exonerating statements. Factfinders would consequently discount the probative value of all uncorroborated exculpatory statements, at the expense of those innocents who cannot corroborate their true accounts. The right to …

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Self-Incrimination And The Epistemology Of Testimony, Michael S. Pardo Dec 2008

Self-Incrimination And The Epistemology Of Testimony, Michael S. Pardo

Cardozo Law Review

The Supreme Court's limitation of the privilege against self-incrimination to evidence of a testimonial nature has been controversial. The doctrinal reliance on a distinction between physical and testimonial evidence has proven difficult to apply in practice, and it has been criticized as being descriptively inaccurate, analytically incoherent, and normatively indefensible. This article offers a defense of the distinction on epistemological grounds. The philosophical focus on testimony as a source of knowledge provides some insight into what makes testimony distinct as an epistemic source. These considerations are used to provide a coherent and principled way to distinguish what evidence to treat …

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The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan Klein Dec 2008

The Sixth Amendment And Criminal Sentencing, Stephanos Bibas, Susan Klein

Cardozo Law Review

This symposium essay explores the impact of Rita, Gall, and Kimbrough on state and federal sentencing and plea bargaining systems. The Court continues to try to explain how the Sixth Amendment jury trial right limits legislative and judicial control of criminal sentencing. Equally important, the opposing sides in this debate have begun to form a stable consensus. These decisions inject more uncertainty in the process and free trial judges to counterbalance prosecutors. Thus, we predict, these decisions will move the balance of plea bargaining power back toward criminal defendants.

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Originalism's Expiration Date, Adam M. Samaha Dec 2008

Originalism's Expiration Date, Adam M. Samaha

Cardozo Law Review

The Constitution of the United States declares itself supreme law, but even the amended document is ancient. By 2008, the predicted age of a randomly selected word in this text reached 178 years. The judiciary, for its part, might not interpret the text until decades after ratification. For Article V amendments, the average lag between ratification and Supreme Court interpretation has been about 40 years. The question is how these features of our supreme law might influence the choice of interpretive method and, ultimately, constitutional decision-making. In particular, some scholars indicate that originalism may be a strong force in adjudication …

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November 29, 2008: The Grace Of Religious Believers, Bruce Ledewitz Nov 2008

November 29, 2008: The Grace Of Religious Believers, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Grace of Religious Believers“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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Summary Of In The Matter Of William M. V. State Of Nevada, 124 Nev. Adv. Op. No. 95, Elham Roohani Nov 2008

Summary Of In The Matter Of William M. V. State Of Nevada, 124 Nev. Adv. Op. No. 95, Elham Roohani

Nevada Supreme Court Summaries

Requirement that a juvenile incriminate himself to rebut certification presumption violates the Fifth Amendment right against self-incrimination.

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November 25, 2008: The Habit Of Hope, Bruce Ledewitz Nov 2008

November 25, 2008: The Habit Of Hope, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Habit of Hope“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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November 25, 2008: Pleasant Grove City V. Summum, Bruce Ledewitz Nov 2008

November 25, 2008: Pleasant Grove City V. Summum, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Pleasant Grove City v. Summum“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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November 22, 2008: Mike Huckabee’S Christian Party, Bruce Ledewitz Nov 2008

November 22, 2008: Mike Huckabee’S Christian Party, Bruce Ledewitz

Hallowed Secularism

Blog post, “Mike Huckabee’s Christian Party“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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November 18, 2008: Ursula Leguin On Economics, Bruce Ledewitz Nov 2008

November 18, 2008: Ursula Leguin On Economics, Bruce Ledewitz

Hallowed Secularism

Blog post, “Ursula LeGuin on Economics“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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November 17, 2008: The Mormon Church And Proposition 8, Bruce Ledewitz Nov 2008

November 17, 2008: The Mormon Church And Proposition 8, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Mormon church and Proposition 8“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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November 15, 2008: Pope Benedict's Healthy Secularity, Bruce Ledewitz Nov 2008

November 15, 2008: Pope Benedict's Healthy Secularity, Bruce Ledewitz

Hallowed Secularism

Blog post, “Pope Benedict's Healthy Secularity“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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November 13, 2008: The Fight Over Christmas, Bruce Ledewitz Nov 2008

November 13, 2008: The Fight Over Christmas, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Fight Over Christmas“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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Pleasant Grove City V. Summum: Identifying Government Speech & Classifying Speech Forums, Aaron Harmon Nov 2008

Pleasant Grove City V. Summum: Identifying Government Speech & Classifying Speech Forums, Aaron Harmon

Duke Journal of Constitutional Law & Public Policy Sidebar

In Pleasant Grove City v. Summum, the Supreme Court must decide whether a privately-donated Ten Commandments monument currently on display in a city park is the private speech of the donor or the government speech of Pleasant Grove City. Summum, a religious organization, sued Pleasant Grove City in federal court claiming that because the city had displayed in a city park a donated Ten Commandments monument, the First Amendment compelled the city to also accept and display Summum's proposed "Seven Aphorisms of Summum" monument. If the Court decides it is the private speech of the donor, it will have to …

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November 11, 2008: From The Conclusion Of For The Establishment Of Religion, Bruce Ledewitz Nov 2008

November 11, 2008: From The Conclusion Of For The Establishment Of Religion, Bruce Ledewitz

Hallowed Secularism

Blog post, “From the Conclusion of For the Establishment of Religion“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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November 8, 2009: Who Lost California?, Bruce Ledewitz Nov 2008

November 8, 2009: Who Lost California?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Who Lost California?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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November 6, 2008: God And The Election Of Barack Obama, Bruce Ledewitz Nov 2008

November 6, 2008: God And The Election Of Barack Obama, Bruce Ledewitz

Hallowed Secularism

Blog post, “God and the Election of Barack Obama“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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November 4, 2008: President Barack Obama, Bruce Ledewitz Nov 2008

November 4, 2008: President Barack Obama, Bruce Ledewitz

Hallowed Secularism

Blog post, “President Barack Obama“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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November 4, 2008: Praying For Victory In This Election, Bruce Ledewitz Nov 2008

November 4, 2008: Praying For Victory In This Election, Bruce Ledewitz

Hallowed Secularism

Blog post, “Praying for Victory in this Election“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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Ksr V. Teleflex: How “Obviousness” Has Changed, Daniel Becker Nov 2008

Ksr V. Teleflex: How “Obviousness” Has Changed, Daniel Becker

Duke Journal of Constitutional Law & Public Policy Sidebar

In KSR v. Teleflex, the Supreme Court examined the Federal Circuit's obviousness jurisprudence for patents. Both prior to and in this case, the Federal Circuit rigidly applied its judicially created "teaching, suggestion, or motivation" (TSM) test to determine whether the prior art would direct an inventor of ordinary skill in the art to combine references or elements in references in the same way as the patentee did. The Supreme Court, however, reversed the decision of the Federal Circuit, and held that by applying the TSM test in such a strict manner, the Federal Circuit had "analyzed the issue in a …

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Why The Incompatibility Clause Applies To The Office Of The President, Saikrishna Bangalore Prakash Nov 2008

Why The Incompatibility Clause Applies To The Office Of The President, Saikrishna Bangalore Prakash

Duke Journal of Constitutional Law & Public Policy Sidebar

Professor Saikrishna Bangalore Prakash responds to Mr. Seth Barret Tillman's Article and defends the traditional interpretation of the Incompatibility Clause, under which a President is prohibited from simultaneously serving as a congressional representative. The ramifications that would result if a President could also hold a position in the Senate or the House of Representatives, Professor Prakash argues, are too problematic for Mr. Tillman's reading to replace the traditional understanding of the Incompatibility Clause. Therefore, the next President, whether Senator McCain or Senator Obama, would need to resign from the Senate before assuming the Executive Office.

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Why Our Next President May Keep His Or Her Senate Seat: A Conjecture On The Constitution’S Incompatibility Clause, Seth Barrett Tillman Nov 2008

Why Our Next President May Keep His Or Her Senate Seat: A Conjecture On The Constitution’S Incompatibility Clause, Seth Barrett Tillman

Duke Journal of Constitutional Law & Public Policy Sidebar

In this Article, Mr. Seth Barrett Tillman challenges the traditional interpretation of the Incompatibility Clause and argues that the President may serve both as the Chief Executive and as a member of Congress. Mr. Tillman utilizes the text, history, and structure of the Constitution to support his position. He ultimately concludes that whoever serves as the next President -- Senator Obama or Senator McCain -- need not resign from the Senate before assuming the Executive Office.

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November 2, 2008: Religion And The 2008 Campaign, Bruce Ledewitz Nov 2008

November 2, 2008: Religion And The 2008 Campaign, Bruce Ledewitz

Hallowed Secularism

Blog post, “Religion and the 2008 Campaign“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

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Daniel Defoe And The Written Constitution, Bernadette Meyler Nov 2008

Daniel Defoe And The Written Constitution, Bernadette Meyler

Cornell Law Faculty Publications

Today, as constitutionalism spreads around the globe, it is embodied de rigueur in written documents. Even places that sustained polities for centuries without a written constitution have begun to succumb to the lure of writtenness. America, we think, spawned this worldwide force, inaugurating a radically new form of political organization when it adopted the U.S. Constitution as its foundational text. Yet the notion of the written constitution had, in fact, received an earlier imprimatur from the pen of Daniel Defoe, English novelist, political pamphleteer, and secret agent. Plying his trades in the early eighteenth century, Defoe, now known largely as …

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Leaving The House: The Constitutional Status Of Resignation From The House Of Representatives, Josh Chafetz Nov 2008

Leaving The House: The Constitutional Status Of Resignation From The House Of Representatives, Josh Chafetz

Cornell Law Faculty Publications

Do members of the House of Representatives have a constitutional right to resign their seats? This Article uses that question as a window onto broader issues about the relationship between legislators and citizens and the respective roles of liberalism and republicanism in the American constitutional order. The Constitution explicitly provides for the resignation of senators, presidents, and vice presidents, but, curiously, it does not say anything about resigning from the House of Representatives. Should we allow the expressio unius interpretive canon to govern and conclude that the inclusion of some resignation provisions implies the impermissibility of resignation when there is …

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Reconstructing The Dormant Commerce Clause Doctrine, Brannon P. Denning Nov 2008

Reconstructing The Dormant Commerce Clause Doctrine, Brannon P. Denning

William & Mary Law Review

In this Article, I argue that the alleged incoherence and unpredictability of the dormant Commerce Clause doctrine (DCCD) is rooted in the Supreme Court's search, through the years, for a stable set of rules enabling it to distinguish permissible from impermissible state regulations of interstate commerce and commercial actors. Its lack of success, the Article argues, is due in large part to the Court's inability to settle on the constitutional command the doctrine was to enforce. Historically, the Court would promulgate a set of rules, apply them for a time, then alter or modify them as the rules became unsatisfactory. …

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