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Articles 751 - 780 of 888
Full-Text Articles in Constitutional Law
Failed Constitutional Metaphors: The Wall Of Separation And The Penumbra, Louis J. Sirico Jr.
Failed Constitutional Metaphors: The Wall Of Separation And The Penumbra, Louis J. Sirico Jr.
University of Richmond Law Review
No abstract provided.
On Equality: The Anti-Interference Principle, Donald J. Kochan
On Equality: The Anti-Interference Principle, Donald J. Kochan
University of Richmond Law Review
This essay seeks to summarize the general equality concept and proposes that equality requires that the government engage in anti-interference with individual choices and activities, so long as these things create no negative externalities for others. If we are serious about respecting equality, such interference actions should be avoided. Adopting an "anti-interference principle" is a necessary foundation for achieving the goal of true equality. The primary point is that equality matters. The purpose of this essay is not to survey the vast political, jurisprudential, and academic debate on equality, but instead, to take a broad look at the philosophical concept …
Putting Rationality Back Into The Rational Basis Test: Saving Substantive Due Process And Redeeming The Promise Of The Ninth Amendment, Jeffrey D. Jackson
Putting Rationality Back Into The Rational Basis Test: Saving Substantive Due Process And Redeeming The Promise Of The Ninth Amendment, Jeffrey D. Jackson
University of Richmond Law Review
This article argues for the adoption of a strengthened rational basis test that would allow courts to scrutinize the actual purpose behind legislation and demand that the legislation actually be reasonably related to its valid legislative purpose. Part II looks at the question of why it is desirable to save substantive due process rather than replace it with some other doctrine. Part III examines how substantive due process came to be the dominant form of protection for unenumerated rights, and how it has evolved from its antecedents in English law to the current test. It concludes that substantive due process …
Making Executive Privilege Work: A Multi-Factor Test In An Age Of Czars And Congressional Oversight , Kenneth A. Klukowski
Making Executive Privilege Work: A Multi-Factor Test In An Age Of Czars And Congressional Oversight , Kenneth A. Klukowski
Cleveland State Law Review
This Article begins in Part II by exploring a recent executive privilege case between the White House and Congress. Part III then explains the constitutional rationale for executive privilege by surveying the tension between Congress's Article I powers and the President's Article II powers. Part IV then explains modern executive privilege doctrine and the different forms of executive privilege, and also proposes a new multi-factor analysis to be incorporated into the current test. Part V moreover explains why the courts should reject both branches' arguments on these issues in favor of a third approach. Part VI then ends with the …
The Unconstitutionality Of Oklahoma's Sq 755 And Other Provisions Like It That Bar State Courts From Considering International Law, Penny M. Venetis
The Unconstitutionality Of Oklahoma's Sq 755 And Other Provisions Like It That Bar State Courts From Considering International Law, Penny M. Venetis
Cleveland State Law Review
This paper will discuss SQ 755's many legal deficiencies, focusing primarily on its constitutional infirmities. First, SQ 755 is a clear violation of the Supremacy Clause of Article VI of the U.S. Constitution. The prohibition on looking to international law requires that Oklahoma courts disregard U.S. treaty obligations, and the law of nations (also known as customary international law), which are all binding on American courts. Second, SQ 755 unconstitutionally limits a state's duty to give full faith and credit to the judicial decisions of other states. The law is clear that no state has the authority to condition its …
Why Reparations To African Descendants In The United States Are Essential To Democracy, Adjoa A. Aiyetoro
Why Reparations To African Descendants In The United States Are Essential To Democracy, Adjoa A. Aiyetoro
Law Faculty Scholarship
No abstract provided.
Brady-Based Prosecutorial Misconduct Claims, Buckley, And The Arkansas Coram Nobis Remedy, J. Thomas Sullivan
Brady-Based Prosecutorial Misconduct Claims, Buckley, And The Arkansas Coram Nobis Remedy, J. Thomas Sullivan
Law Faculty Scholarship
No abstract provided.
The Political Animal And The Ethics Of Constitutional Commitment, Josh Chafetz
The Political Animal And The Ethics Of Constitutional Commitment, Josh Chafetz
Cornell Law Faculty Publications
In his article Parchment and Politics: The Positive Puzzle of Constitutional Commitment, Professor Daryl J. Levinson identifies a variety of public choice mechanisms that lead politically empowered groups to accept constitutional limitations on their political power. In this response, Professor Josh Chafetz argues that Levinson overlooks another set of mechanisms, ones which work not at the level of material interests but rather at the level of political morality. Focusing on an Aristotelian account of political morality—an account that was influential among the Framers of the U.S. Constitution and that remains influential today — Chafetz suggests that at least some …
Due Process Rights And The Targeted Killing Of Suspected Terrorists, Benjamin Mckelvey
Due Process Rights And The Targeted Killing Of Suspected Terrorists, Benjamin Mckelvey
Vanderbilt Journal of Transnational Law
The Central Intelligence Agency (CIA), with the approval of the Obama Administration, conducts targeted killings of individual suspected terrorists. These killings have significantly increased since the Iraq war and are now a central component of U.S. counterterrorism strategy. The targeted killing program consists mainly of missile strikes from Predator drones, which are unmanned aerial vehicles operated by the CIA. In May 2010, President Obama's National Security Council approved the targeted killing of Anwar al-Aulaqi, a U.S. citizen and suspected al-Qaeda senior leader believed to be hiding in Yemen. As the first American targeted for extrajudicial lethal force, Aulaqi's situation quickly …
The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett
The Political (And Other) Safeguards Of Religious Freedom, Richard W. Garnett
Journal Articles
This essay is a contribution to a symposium marking the 20th anniversary of the Supreme Court’s still-controversial decision in Employment Division v. Smith. That decision, it is suggested, should not be read as reflecting or requiring hostility or indifference towards claims for legislatively enacted accommodations of religion. Smith is not an endorsement of religion-blind neutrality in constitutional law; instead, it assigns to politically accountable actors the difficult, but crucially important, task of accommodating those whose religious exercise would otherwise be burdened by generally applicable laws. The essay goes on to suggest several things that must be true of our law …
All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet
All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet
Faculty Scholarship
This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of how …
Nonbelievers, Nelson Tebbe
Citizens United, Stevens And Humanitarian Law Project: First Amendment Rules And Standards In Three Acts, William D. Araiza
Citizens United, Stevens And Humanitarian Law Project: First Amendment Rules And Standards In Three Acts, William D. Araiza
Faculty Scholarship
No abstract provided.
Epilog: Foreign Sovereign Immunity At Home And Abroad, Ingrid Wuerth
Epilog: Foreign Sovereign Immunity At Home And Abroad, Ingrid Wuerth
Vanderbilt Journal of Transnational Law
Every author writing on U.S. law for this symposium notes that the extent to which the Executive Branch can make binding immunity determinations is an important issue going forward. In addition to Legal Adviser Koh, two other authors address this issue directly. Professor Peter Rutledge provides a typology of the various roles that the Executive Branch might play in immunity (and other) cases, distinguishing in particular between views articulated by the Executive Branch independently of ongoing litigation, and those expressed with respect to particular pending cases. And Lewis Yelin of the Department of Justice has contributed a major, comprehensive article …
The Origins And Limits Of Originalism: A Comparative Study, Ozan O. Varol
The Origins And Limits Of Originalism: A Comparative Study, Ozan O. Varol
Vanderbilt Journal of Transnational Law
In the debate about originalism in the United States, scholars have devoted scant attention to the question whether the United States stands alone in its fascination with originalism. According to the prevailing view, originalism is distinctively American and the study of comparative originalism is an oxymoron. This Article challenges that conventional view. Drawing on neglected Turkish-language sources, the Article analyzes, as a comparative case study, the use of originalism by the Turkish Constitutional Court (Anayasa Mahkemesi) to interpret the secularism provisions in the Turkish Constitution. Comparing the Turkish version of originalism to American originalism, the Article sheds light on broader …
A Club Of Incumbents? The African Union And Coups D'Etat, Eki Y. Omorogbe
A Club Of Incumbents? The African Union And Coups D'Etat, Eki Y. Omorogbe
Vanderbilt Journal of Transnational Law
This Article considers the response of the Organization for African Unity (the OAU, founded in 1963) and its successor, the African Union (the AU, which began operating in 2003) to coups d'etat, since 1997. The Article addresses these organizations' policies concerning unconstitutional changes of government, as well as the application of these policies. In considering these issues, the Article examines the response of the AU to the coups in Togo (2005), Mauritania (2005 and 2008), Guinea (2008), Madagascar (2009), and Niger (2010). In each case, the AU was unwilling to recognize the government that came to power through coup, even …
Redressing Deprivations Of Rights Secured By State Constitutions Outside The Shadow Of The Supreme Court's Constitutional Remedies Jurisprudence, Gary S. Gildin
Redressing Deprivations Of Rights Secured By State Constitutions Outside The Shadow Of The Supreme Court's Constitutional Remedies Jurisprudence, Gary S. Gildin
Faculty Scholarship
The second generation of state constitutionalism is now emerging. With the methodology of autonomous state constitutional protection more clearly defined, courts and legislatures are turning to the task of determining when, and from whom, they should award damages to citizens deprived of their state constitutional rights. State courts, as well as legislatures contemplating statutes authorizing damage actions, will be tempted to borrow United States Supreme Court interpretations of 42 U.S.C. §1983 in shaping civil relief for infringement of state constitutional rights. This article argues that the Supreme Court’s Section 1983 remedies doctrine is a product of statutory, structural and institutional …
Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward
Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward
Journal Articles
This essay explores the proper scope of Congress’s power to enforce the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. It reviews the historical context surrounding the drafting of the Thirteenth Amendment enforcement power, and it points to structural constitutional considerations relevant to the understanding of that power. It concludes by suggesting some related topics that deserve further exploration.
The State-Application-And-Convention Method Of Amending The Constitution: The Founding Era Vision, Robert G. Natelson
The State-Application-And-Convention Method Of Amending The Constitution: The Founding Era Vision, Robert G. Natelson
Faculty Law Review Articles
No abstract provided.
State Constitutionalism: State-Court Deference Or Dissonance?, Arthur Leavens
State Constitutionalism: State-Court Deference Or Dissonance?, Arthur Leavens
Faculty Scholarship
This Article focuses on the debate concerning state constitutional expansion of criminal-procedure protections. It examines two such rights: (1) the protection against unreasonable searches and seizures; and (2) the right to the assistance of counsel in defending a criminal case. Each of these rights is embodied in both the federal and most, if not all, state constitutions. Each right is thus doubly applicable to the states, first, through the federal version by virtue of its incorporation into the Fourteenth Amendment’s due process protection and, second, through the state constitution’s version of the cognate right. So focused, the question is, what …
No Virtue In Passivity: The Supreme Court And Ali Al-Marri, Bruce K. Miller
No Virtue In Passivity: The Supreme Court And Ali Al-Marri, Bruce K. Miller
Faculty Scholarship
This Article discusses the case of Al-Marri v. Spagone, which the U.S. Supreme Court unjustifiably dismissed as moot on March 6, 2009. By dismissing this appeal, the Court ignored its duty to determine whether the military detention of a non-citizen residing lawfully in the United States was authorized by law. And that failure has in turn contributed significantly, and unnecessarily, to the cloud of legal uncertainty which now hovers over the preventive detention measures adopted and proposed by the Obama Administration.
"Tour De Farce!" Misblurb Marketing In Film And Publishing, Matthew Tynan
"Tour De Farce!" Misblurb Marketing In Film And Publishing, Matthew Tynan
Cardozo Arts & Entertainment Law Journal
No abstract provided.
A New Approach To Nineteenth-Century Religious Exemption Cases, Jud Campbell
A New Approach To Nineteenth-Century Religious Exemption Cases, Jud Campbell
Law Faculty Publications
Scholars frequently cite early nineteenth-century cases to ascertain the original meaning of the Free Exercise Clause. Previous studies, however, have ignored crucial trends in those decisions, thus leading to mistaken emphasis on the denial of religious accommodation claims. This Note argues that prevailing theological views, skepticism of courtroom declarations of religious belief, and contemporary notions of judicial deference better explain nineteenth-century cases than does a wholesale rejection of judicially enforceable religious exemptions. This novel approach clarifies previously unexplained tensions in early free exercise opinions. It also suggests that the Supreme Court’s holding in Employment Division v. Smith is inconsistent with …
A Lesson From The Holocaust Restitution Movement For Armenians: Generate Momentum To Secure Restitution, Vartges Saroyan
A Lesson From The Holocaust Restitution Movement For Armenians: Generate Momentum To Secure Restitution, Vartges Saroyan
Cardozo Journal of Conflict Resolution
This Note proceeds in five parts. Part I provides a historical background of the events prior to and during the Armenian Genocide, and the claims arising out of the Genocide. Part II discusses the status of Genocide restitution and the roadblocks that continue to prevent widespread recovery. Part III explains the timeline of the Holocaust restitution movement and how advocates for restitution were finally able to have some success. Part IV proposes that Genocide-era claims be sought not only by filing lawsuits, but also by creating momentum through negotiation and other principles of ADR. Part V concludes by reiterating the …
Brief Of Constitutional Law Professors As Amici Curiae In Support Of Petitioner, Ernest A. Young
Brief Of Constitutional Law Professors As Amici Curiae In Support Of Petitioner, Ernest A. Young
Faculty Scholarship
No abstract provided.
Transforming Property Into Speech, Joseph Blocher
Transforming Property Into Speech, Joseph Blocher
Faculty Scholarship
No abstract provided.
Retail Rebellion And The Second Amendment, Darrell A. H. Miller
Retail Rebellion And The Second Amendment, Darrell A. H. Miller
Faculty Scholarship
When, if ever, is there a Second Amendment right to kill a cop? This piece seeks to answer that question. In District of Columbia v. Heller, the Supreme Court held that the Second Amendment codifies a natural right to keep and bear arms for self-defense. That right to self-defense extends to both private and public threats, including self-defense against agents of a tyrannical government. Moreover, the right is individual. Individuals -- not just communities -- have the right to protect themselves from public violence. Individuals -- not just militias -- have the right to defend themselves against tyranny. In McDonald …
Fueling Controversy, Randy Beck
Fueling Controversy, Randy Beck
Scholarly Works
In a recent Yale Law Journal article, Linda Greenhouse and Reva Siegel question the received wisdom that the Supreme Court’s decision in Roe v. Wade generated a political backlash, inflaming conflict over abortion and damaging the political process. The evidence they highlight shows that political conflict over abortion predated the Roe opinion, spurred by the Catholic Church and by Republican Party strategists seeking to foster party realignment. This enriched picture of the political and social landscape at the time of the decision undermines any simplistic suggestion that Roe served as “the sole cause of backlash” or “single-handedly caused societal polarization …
Rational Coercion: Citizens United And A Modern Day Prisoner's Dilemma, Anne M. Tucker
Rational Coercion: Citizens United And A Modern Day Prisoner's Dilemma, Anne M. Tucker
Scholarly Works
No abstract provided.
Legal Interpretation: Taking Words Seriously, Allison W. Scott
Legal Interpretation: Taking Words Seriously, Allison W. Scott
CMC Senior Theses
This thesis examines the consequences of taking a conversational approach to legal interpretation. This is meant to contrast with and improve the argument given in Ronald Dworkin's Law's Empire.