Constitutional Law Commons^™

Doma's Ghost And Copyright Reversionary Interests, Brad A. Greenberg

NULR Online

No abstract provided.

Ornan V. Ministry Of The Interior, Uzi Vogelman, Hanan Melcer, Asher Grunis

Translated Opinions

[This abstract is not part of the Court's opinion and is provided for the reader's convenience. It has been translated from a Hebrew version prepared by Nevo Press Ltd. and is used with its kind permission.]

The Appellants – Israeli citizens registered in the Population Registry as members of different nationalities (some registered as Jewish, and some as members of other nationalities: Arab, Druze, Buddhist, Burmese, etc.) – petitioned the Jerusalem District Court for a declaratory order stating that they are members of an Israeli nationality, in hopes that such a decision would serve as official document for modifying the …

Secondary Speech And The Protective Approach To Interpretive Dualities In The Roberts Court, Nat Stern

Scholarly Publications

No abstract provided.

The Liberty Of The Church: Source, Scope And Scandal, Patrick Mckinley Brennan

Working Paper Series

This article was presented at a conference, and is part of a symposium, on "The Freedom of the Church in the Modern Era." The article argues that the liberty of the Church, libertas Ecclesiae, is not a mere metaphor, pace the views of some other contributions to the conference and symposium and of the mentality mostly prevailing over the last five hundred years. The argument is that the Church and her directly God-given rights are ontologically irreducible in a way that the rights of, say, the state of California or even of the United States are not. Based on a …

Constitutional Conundrums In Arbitration: Book Review Of Arbitration And The Constitution, S. I. Strong

Faculty Publications

The combination of arbitration and constitutional law is the topic of Professor Peter Rutledge's new book, and the focus of this review essay, which will consider, among other things, whether these two subjects are compatible.

A New American Dilemma?: U.S. Constitutionalism Vs. International Human Rights, Stanley N. Katz

University of Miami Law Review

No abstract provided.

"We The People," Constitutional Accountability, And Outsourcing Government, Kimberly L. Wehle

All Faculty Scholarship

The ubiquitous outsourcing of federal functions to private contractors, although benign in the main, raises the most fundamental of constitutional questions: What institutions and actors comprise the "federal government" itself? From Abu Ghraib to Blackwater, a string of scandals has heightened public awareness that highly sensitive federal powers and responsibilities are routinely entrusted to government contractors. At the same time, the American populace seems vaguely aware that, when it comes to ensuring accountability for errors and abuses of power, contractors occupy a special space. The fact is that myriad structural and procedural means for holding traditionally government actors accountable do …

Constitutional Rights And Political Power Of Corporations After Citizens United: The Decline Of Citizens And The Rise Of Foreign Corporations And Super Pacs, Tim Bakken

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

Let Ivf Take Its Course: Reconceiving Procreative Liberty For The Twenty-First Century, Christine E. White

Student Articles and Papers

No abstract provided.

Public Debt In The United States And Germany: A Constitutional Perspective, Stephen Utz

Faculty Articles and Papers

No abstract provided.

Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Andrea B. Carroll

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

Hierarchies Of Discrimination In Baby Making: A Response To Professor Carroll, Radhika Rao

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

"We The People," Constitutional Accountability, And Outsourcing Government, Kimberly N. Brown

Indiana Law Journal

The ubiquitous outsourcing of federal functions to private contractors, although benign in the main, raises the most fundamental of constitutional questions: What institutions and actors comprise the “federal government” itself? From Abu Ghraib to Blackwater, a string of scandals has heightened public awareness that highly sensitive federal powers and responsibilities are routinely entrusted to government contractors. At the same time, the American populace seems vaguely aware that, when it comes to ensuring accountability for errors and abuses of power, contractors occupy a special space. The fact is that myriad structural and procedural means for holding traditionally government actors accountable do …

Pretrial Restraint Of Assets: Lawful Governmental Interference With The Right To Counsel Of Choice?, Donna L. Eng

UF Law Faculty Publications

In this, the year of the 50th anniversary of Gideon v. Wainwright, we're read a lot of articles discussing the right to counsel, but none, as far as I recall, discussing the right to counsel of choice. While it may be true that there is no right to counsel of choice for those who are appointed counsel, what about those who are fortunate enough to be able to retain counsel? Isn't being entitled to counsel of your choice a logical extension of Gideon?

Youth Matters: Miller V. Alabama And The Future Of Juvenile Sentencing, John F. Stinneford

UF Law Faculty Publications

In the Supreme Court's latest Eighth Amendment decision, Miller v. Alabama, the Court held that statutes authorizing mandatory sentences of life in prison with no possibility of parole are unconstitutional as applied to offenders who were under eighteen when they committed their crimes. This short essay examines several themes presented in Miller, including the constitutional significance of youth and science, the legitimacy of mandatory life sentences and juvenile transfer statutes, and the conflict between “evolving standards of decency” and the Supreme Court’s “independent judgment.”

This essay also introduces important articles by Richard Frase, Carol Steiker and Jordan Steiker, …

Review Of Prigg V. Pennsylvania: Slavery, The Supreme Court, And The Ambivalent Constitution, Susan David Demaine

Articles by Maurer Faculty

In 1842, the Supreme Court issued a landmark decision in Prigg v. Pennsylvania, resolving a dispute about fugitive slave rendition that had raged between the states for decades. H. Robert Baker’s analysis of the decision and the events that led up to it is the first book-length work to investigate Prigg and its place in American history. Baker traces the development of fugitive slave laws and recounts the heart-wrenching story that lies behind Prigg to shed light on the Supreme Court’s decision and the gradual clarification of American federalism.

How Parents Are Made: A Response To Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Kimberly M. Mutcherson

Indiana Law Journal

Roundtable on Regulating Assisted Reproductive Technology 2012

What Matters More: A Day In Jail Or A Criminal Conviction?, John P. Gross

William & Mary Bill of Rights Journal

No abstract provided.

The Eighth Amendment As A Warrant Against Undeserved Punishment, Scott W. Howe

William & Mary Bill of Rights Journal

Should the Eighth Amendment prohibit all undeserved criminal convictions and punishments? There are grounds to argue that it must. Correlation between the level of deserts of the accused and the severity of the sanction imposed represents the very idea of justice to most of us. We want to believe that those branded as criminals deserve blame for their conduct and that they deserve all of the punishment they receive. A deserts limitation is also key to explaining the decisions in which the Supreme Court has rejected convictions or punishments as disproportional, including several major rulings in the new millennium. Yet, …

Power And Responsibility: Fourth Amendment Limits On The Use Of Molecular Scanners, Paul Wolfgramm Jr.

William & Mary Bill of Rights Journal

No abstract provided.

New York Times V. U.S.: Implications And Relevance In The 21st Century, Maria E. Lombardi

Student Publications

In 1971, the New York Times released the first installment in a series later referred to as the Pentagon Papers that would eventually have significant political, social, and historical impacts that are felt even in the 21st Century. Following the first release, President Nixon’s administration sought an injunction against the publication of the remaining contents of the classified study, ultimately becoming an extensive legal process that culminated in the Supreme Court. In a per curiam opinion, the Court ruled that in accordance with Organization for a Better Austin v. Keefe and Near v. Minnesota that the federal government did not …

Education—Student-Teacher Relationship—Should Teachers Be Held To A Higher Standard? Understanding The Laws Governing Sexual Relationships Between Students And Teachers In Primary And Secondary Schools Paschal V. State, 2012 Ark. 127, 388 S.W.3d 429., Katelyn Burch Busby

University of Arkansas at Little Rock Law Review

No abstract provided.

Nearing Thirty Years: The Burger Court, Strickland V. Washington, And The Parameters Of The Right To Counsel, Joshua Kastenberg

The Journal of Appellate Practice and Process

No abstract provided.

The Non-Redelegation Doctrine, F. Andrew Hesisck, Carissa Byrne Hessick

William & Mary Law Review

In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission. One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges. District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.

This Article argues that, when faced with a decision that implicates an unambiguous delegation, the courts should not redelegate unless authorized by Congress …

Statutory Interpretation As Constestatory Democracy, Glen Staszewski

William & Mary Law Review

This Article provides a novel solution to the countermajoritarian difficulty in statutory interpretation by applying recent insights from civic republican theory to the adjudication of statutory disputes in the modern regulatory state. From a republican perspective, freedom consists of the absence of the potential for arbitrary domination, and democracy should therefore include both electoral and contestatory dimensions. The Article argues that statutory interpretation in the modern regulatory state is best understood as a mechanism of contestatory democracy. It develops this conception of statutory interpretation by considering the distinct roles of legislatures, administrative agencies, and courts in making and implementing the …

The Federal Medical Loss Ratio: A Permissible Federal Regulation Or An Encroachment On State Power?, Meghan S. Stubblebine

William & Mary Law Review

No abstract provided.

Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Andrea B. Carroll

Journal Articles

The article focuses on limited use of reproductive technologies in defense of discriminating against unmarried intended parents. It emphasizes to eliminate unconstitutional treatment of prospective parents involved in the surrogacy process. It informs that State laws related to surrogacy create discrimination which is based on marital status. It suggests that surrogacy should be included as a permissible reproductive avenue for right to married and unmarried intended parents in the U.S.

Roe V. Wade At 40, Gerard V. Bradley

Journal Articles

Under the leadership of Chief Justice Warren Burger, who joined it in 1969, the Supreme Court departed from the course taken during the 16-year tenure of his predecessor, Earl Warren. The Burger Court rolled back precedents in criminal procedure and obscenity, while stopping the drive to universalize welfare rights and equalize public schooling expenditures. Roe v. Wade (1973), on the other hand, extended the Warren Court's deepest commitments: sexual liberation, obviously; equality, with respect to both race and class; and even church-state separation, insofar as the Roe Justices identified opposition to abortion with Catholic dogma. These more or less "progressive" …

Preemption And Textualism, Daniel J. Meltzer

Michigan Law Review

In the critically important area of preemption, the Supreme Court’s approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona’s immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court’s preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of “obstacle preemption” analysis. Recently, however, Justice Thomas has objected to the Court’s failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle …

The Constitutionality Of Using Eminent Domain To Condemn Underwater Mortgage Loans, Katharine Roller

Michigan Law Review

One of the most visible and devastating components of the financial crisis that began in 2007 and 2008 has been a nationwide foreclosure crisis. In the wake of ultimately ineffective attempts at federal policy intervention to address the foreclosure crisis, a private firm has proposed that counties and municipalities use their power of eminent domain to seize “underwater” mortgage loans—-mortgage loans in which the debt exceeds the value of the underlying property—-from the private securitization trusts that currently hold them. Having condemned the mortgage loans, the counties and municipalities would reduce the debt to a level below the value of …