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Articles 91 - 120 of 795
Full-Text Articles in Constitutional Law
De-Cloaking Torture: Boumediene And The Military Commissions Act, Alan W. Clarke
De-Cloaking Torture: Boumediene And The Military Commissions Act, Alan W. Clarke
San Diego International Law Journal
The Military Commissions Act of 2006 (MCA) marked the high tide and endgame for hiding torture. It's unraveling did more to uncover the Bush administration's secret interrogation practices than did the political change in Washington. International and domestic backlash against the government's embrace of harsh interrogation techniques, frequently rising to the level of torture, also played a role. However, the Supreme Court's decisions ending in Boumediene v. Bush played the decisive role. Boumediene, and the Supreme Court decisions that led up to it, made inevitable that which politics had left contingent and reversible. It also provided legal and political cover.
"Knock And Talk" And The Fourth Amendment, Craig M. Bradley
"Knock And Talk" And The Fourth Amendment, Craig M. Bradley
Indiana Law Journal
No abstract provided.
Must God Be Dead Or Irrelevant: Drawing A Circle That Lets Me In, Richard M. Esenberg
Must God Be Dead Or Irrelevant: Drawing A Circle That Lets Me In, Richard M. Esenberg
William & Mary Bill of Rights Journal
Some scholars claim that current Establishment Clause doctrine can increasingly be explained in terms of substantive neutrality-that is, the idea that government ought to treat religion and irreligion (or comparable secular activities) in the same way. Whether a product of the Court's commitment to the idea or an artifact of the positions of the "swing" Justices, this proposition has considerable explanatory power. The Supreme Court has, in recent years, permitted the government to make financial support equally available for religious uses, as long as it is done on a neutral basis and through the private choice of the recipients. It …
Prisoners For Sale: Making The Thirteenth Amendment Case Against State Private Prison Contracts, Ryan S. Marion
Prisoners For Sale: Making The Thirteenth Amendment Case Against State Private Prison Contracts, Ryan S. Marion
William & Mary Bill of Rights Journal
No abstract provided.
Rethinking Women And The Constitution: An Historical Argument For Recognizing Constitutional Flexibility With Regards To Women In The New Republic, Samantha Ricci
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
The National Class As Extraterritorial Legislation, Jeffrey Haylock
The National Class As Extraterritorial Legislation, Jeffrey Haylock
Dalhousie Law Journal
This article argues that provincially constituted multijurisdictional class actions violate the constitutional law of extraterritoriality. It begins with a brief overview of the lawof adjudicativejurisdiction, then provides a longer overviewof the separate body of law that imposes extraterritorial limits on substantive provincial legislation. The author then demonstrates the substantive characterof classaction legislation, which necessarily entails the applicability of the law ofextraterritoriality However, much of the relevant jurisprudence, as well as some of the relevant academic literature, has ignored this important issue.Application ofthe lawofextraterritoriality does, indeed, raise serious constitutional concerns, as the article's central section demonstrates. The desirable efficiencies of national …
Improper Joinder: Confronting Plaintiffs' Attempts To Destroy Federal Subject Matter Jurisdiction., Paul Rosenthal
Improper Joinder: Confronting Plaintiffs' Attempts To Destroy Federal Subject Matter Jurisdiction., Paul Rosenthal
American University Law Review
No abstract provided.
Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, And The Abolition Movement, John Bessler
Revisiting Beccaria's Vision: The Enlightenment, America's Death Penalty, And The Abolition Movement, John Bessler
All Faculty Scholarship
In 1764, Cesare Beccaria, a 26-year-old Italian criminologist, penned On Crimes and Punishments. That treatise spoke out against torture and made the first comprehensive argument against state-sanctioned executions. As we near the 250th anniversary of its publication, law professor John Bessler provides a comprehensive review of the abolition movement from before Beccaria's time to the present. Bessler reviews Beccaria's substantial influence on Enlightenment thinkers and on America's Founding Fathers in particular. The Article also provides an extensive review of Eighth Amendment jurisprudence and then contrasts it with the trend in international law towards the death penalty's abolition. It then discusses …
Strategery's Refuge, Christopher W. Seeds
Strategery's Refuge, Christopher W. Seeds
Cornell Law Faculty Publications
By popular account, the Supreme Court’s recent decisions on effective assistance of counsel in capital sentencing—aggressive critiques of counsel’s failure to investigate and present mitigating evidence—initiate an era of improved oversight of the quality of legal representation in death penalty cases. One would expect the new and improved jurisprudence to curb post hoc efforts by trial counsel to disguise incomplete trial preparation as a tactical decision, a practice that has long undercut the Strickland doctrine. But the shelters for post hoc rationalizations—the refuges for “strategery”—remain. Surveying decisions of the federal courts of appeals since the turn of the century, this …
Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan
Contingent Constitutionalism: State And Local Criminal Laws And The Applicability Of Federal Constitutional Rights, Wayne A. Logan
William & Mary Law Review
Americans have long been bound by a shared sense of constitutional commonality, and the Supreme Court has repeatedly condemned the notion that federal constitutional rights should be allowed to depend on distinct state and local legal norms. In reality, however, federal rights do indeed vary, and they do so as a result of their contingent relationship to the diversity of state and local laws on which they rely. Focusing on criminal procedure rights in particular, this Article examines the benefits and detriments of constitutional contingency, and casts in new light many enduring understandings of American constitutionalism, including the effects of …
Randomization And Adjudication, Adam M. Samaha
Randomization And Adjudication, Adam M. Samaha
William & Mary Law Review
Flipping a coin to decide a case is among the most serious forms of judicial misconduct. Yet judges react quite differently to other types of lotteries. Judges tend to tolerate or encourage deliberately random decisions in nonjudicial settings ranging from military drafts to experimental welfare requirements. Equally striking, most adjudicators now embrace randomization within their own institutions: they commonly use lotteries to assign incoming cases to each other. This practice creates a remarkable tension. Because adjudicators vary in competence and ideology, randomizing their case assignments will effectively randomize outcomes in a subset of merits decisions. We might then ask whether …
Suspicionless Border Seizures Of Electronic Files: The Overextension Of The Border Search Exception To The Fourth Amendment, Scott J. Upright
Suspicionless Border Seizures Of Electronic Files: The Overextension Of The Border Search Exception To The Fourth Amendment, Scott J. Upright
William & Mary Law Review
No abstract provided.
Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear
Federalism, Forum Shopping, And The Foreign Injury Paradox, Elizabeth T. Lear
William & Mary Law Review
This Article explores the contours of state regulatory power in the foreign injury context. The Supreme Court has long declined to question forum choice in domestic cases, apparently concluding that any other response would be inconsistent with our federalism. But move the injury offshore and the judicial deference to state regulatory supremacy evaporates. Federal judges subject forum choice in transnational tort actions to exacting scrutiny, routinely dismissing such claims on forum non conveniens grounds with no examination of the state interests at stake. This Article first considers whether the offshore nature of a foreign injury diminishes or even extinguishes traditional …
Should The Courts Save Taxpayer Standing? - Interpreting Hein V. Freedom From Religion Foundation Narrowly Through The Lens Of Judicial-Branch Spending, Akiva Shapiro
The Journal of Appellate Practice and Process
No abstract provided.
In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand
In Defense Of Ideology: A Principled Approach To The Supreme Court Confirmation Process, Lori A. Ringhand
Scholarly Works
In this paper, Professor Ringhand offers a principled defense of an ideological approach to the Supreme Court justice confirmation process. In constructing her argument, she does three things. First, she explores how the insights provided by recent empirical legal scholarship have created a need to re-think the role of the Supreme Court and, consequently, the process by which we select Supreme Court justices. In doing so, Professor Ringhand explains how these insights have called into question much of our conventional constitutional narrative, and how this failure of the conventional narrative has in turn undermined traditional objections to an ideologically-based confirmation …
State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael Wells, Alice Snedeker
State-Created Property And Due Process Of Law: Filling The Void Left By Engquist V. Oregon Department Of Agriculture, Michael Wells, Alice Snedeker
Scholarly Works
Several years ago, in Village of Willowbrook v. Olech, the Supreme Court recognized a 'class-of-one' Equal Protection theory, under which individuals charging that they were singled out for arbitrary treatment by officials may sue for vindication. Last term, in Engquist v. Oregon Department of Agriculture, the Court barred recourse to this type of claim on the part of government employees. The reasoning of Engquist, which emphasizes the discretionary nature of employment decisions, threatens to eliminate a wide range of class-of-one claims outside the employment area as well. There is a pressing need for an alternative. This article proposes another basis …
Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge
Medellin, Delegation And Conflicts (Of Law), Peter B. Rutledge
Scholarly Works
The case of Medellin v. Texas presented the Supreme Court with a recurring question that has bedeviled judges, legal scholars, and political scientists-what effect, if any, must a United States court give to the decision of an international tribunal, particularly where, during the relevant time, the United States was party to a treaty protocol that bound it to that tribunal's judgments. While the Supreme Court held that the International Court of Justice's ("ICJ") decision was not enforceable federal law, its decision reflected an important recognition that the issues presented in that case were not limited to the specific area of …
The Captures Clause, Ingrid Wuerth
The Captures Clause, Ingrid Wuerth
Vanderbilt Law School Faculty Publications
The Captures Clause of the United States Constitution gives Congress the power to "make Rules concerning Captures on Land and Water." A variety of courts, scholars, politicians and others have recently cited the Clause to support conflicting arguments about the scope of Congress’s power to initiate and prosecute war. Some claim or assume that the Captures Clause gives Congress power over the taking and detention of people, while others conclude that the power is limited to property only. Similarly, those who view Congress’s power broadly understand the Captures Clause as giving Congress the power to determine what (or whom) may …
On The Limits Of Supremacy: Medical Marijuana And The States' Overlooked Power To Legalize Federal Crime, Robert A. Mikos
On The Limits Of Supremacy: Medical Marijuana And The States' Overlooked Power To Legalize Federal Crime, Robert A. Mikos
Vanderbilt Law School Faculty Publications
Using the conflict over medical marijuana as a timely case study, this Article explores the overlooked and underappreciated power of states to legalize conduct Congress bans. Though Congress has banned marijuana outright, and though that ban has survived constitutional scrutiny, state laws legalizing medical use of marijuana constitute the de facto governing law in thirteen states. This Article argues that these state laws and (most) related regulations have not been, and, more interestingly, cannot be preempted by Congress, given constraints imposed on Congress's preemption power by the anti-commandeering rule, properly understood. Just as importantly, these state laws matter, in a …
The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne
The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne
William & Mary Bill of Rights Journal
No abstract provided.
Examining Presidential Power Through The Rubric Of Equity, Eric A. White
Examining Presidential Power Through The Rubric Of Equity, Eric A. White
Michigan Law Review
In this Note I propose a method to examine presidents' actions taken outside the normal bounds of executive power by employing the general rubric of equity, in an attempt to find when the president acts with what I term "practical legitimacy." This would be a new category for executive actions that, while perhaps arguably illegal, are so valuable that we want to treat them as legitimate exercises of executive power. To do so, I first examine the history of equity, noting the many relevant parallels to our modern conception of executive power In light of these parallels, I argue that …
September 30, 2009: Final Reflection On A Secular Yom Kippur, Bruce Ledewitz
September 30, 2009: Final Reflection On A Secular Yom Kippur, Bruce Ledewitz
Hallowed Secularism
Blog post, “Final Reflection on a Secular Yom Kippur“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
September 27, 2009: A Secular Yom Kippur, Bruce Ledewitz
September 27, 2009: A Secular Yom Kippur, Bruce Ledewitz
Hallowed Secularism
Blog post, “A Secular Yom Kippur“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
September 24, 2009: The Death Of The Death Of God, Bruce Ledewitz
September 24, 2009: The Death Of The Death Of God, Bruce Ledewitz
Hallowed Secularism
Blog post, “The Death of the Death of God“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
September 21, 2009: Acorn’S Crime Is Organizing Poor People, Bruce Ledewitz
September 21, 2009: Acorn’S Crime Is Organizing Poor People, Bruce Ledewitz
Hallowed Secularism
Blog post, “ACORN’s Crime is Organizing Poor People“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
September 19, 2009: Why Secularism Needs The High Holy Days Or Something Like Them, Bruce Ledewitz
September 19, 2009: Why Secularism Needs The High Holy Days Or Something Like Them, Bruce Ledewitz
Hallowed Secularism
Blog post, “Why Secularism Needs the High Holy Days or Something Like Them“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
September 17, 2009: God Is Just Another Word, Bruce Ledewitz
September 17, 2009: God Is Just Another Word, Bruce Ledewitz
Hallowed Secularism
Blog post, “God is Just Another Word“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
September 17, 2009: None, Bruce Ledewitz
September 17, 2009: None, Bruce Ledewitz
Hallowed Secularism
Blog post, “None“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
“God” Is Just Another Word, Bruce Ledewitz
“God” Is Just Another Word, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
Rebuilding The Wall Of Separation: A Progressive Discussion On Church & State, Bruce Ledewitz
Rebuilding The Wall Of Separation: A Progressive Discussion On Church & State, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.