Constitutional Law Commons^™

Bond And The Vienna Rules, Roger P. Alford

Journal Articles

This Article briefly outlines the Court’s holding in Bond, and the general framework of interpretation set forth in the Vienna Rules. It then looks at Supreme Court jurisprudence that is consonant with the Vienna Rules. The Article then analyzes Bond’s interpretive approach using the Vienna Rules methodology. It concludes with reflections on the future of Supreme Court treaty interpretation and how that interpretation could avoid reaching the constitutional question of the scope of the treaty power.

Foreign Precedents In Constitutional Adjudication By The Supreme Court Of Singapore, 1963-2013, Jack Tsen-Ta Lee

Research Collection Yong Pung How School Of Law

This article surveys the use of foreign precedents in constitutional adjudication by the Supreme Court of Singapore for over a half century during the terms of the first three Chief Justices—Wee Chong Jin (1963–1990), Yong Pung How (1990–2006), and Chan Sek Keong (2006–2012)—and the first year in office of the fourth Chief Justice, Sundaresh Menon (2012–2013). It concludes that while judges have always cited foreign case law, they have only actually applied foreign cases where the wording of the Constitution and the constitutional arrangements in Singapore are fairly analogous to the constitutional texts and arrangements upon which the cases were …

Contraception As A Sex Equality Right, Neil S. Siegel, Reva B. Siegel

Faculty Scholarship

Challenges to federal law requiring insurance coverage of contraception are occurring on the eve of the 50th Anniversary of the U.S. Supreme Court’s decision in Griswold v. Connecticut. It is a good time to reflect on the values served by protecting women’s access to contraception.

In 1965, the Court ruled in Griswold that a law criminalizing the use of contraception violated the privacy of the marriage relationship. Griswoldoffered women the most significant constitutional protection since the Nineteenth Amendment gave women the right to vote, constitutional protection as important as the cases prohibiting sex discrimination that the Court would …

February 24, 2015: Transformed Without God, Bruce Ledewitz

Hallowed Secularism

Blog post, “Transformed Without God“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Trending@Rwu Law: Professor Emily Sack's Post: More Death Penalty Puzzles Highlighted By New Supreme Court Case, Emily Sack

Law School Blogs

No abstract provided.

Under The Prison Litigation Reform Act's So-Called Three Strikes Provision, When Does A Dismissal Count As A Strike: Coleman V. Tollefson (13-1333), Betsy Ginsberg

Articles

The Prison Litigation Reform Act of 1996 amended the federal in forma pauperis statute to include, among other provisions, what has become known as the “three strikes provision.” Under this provision, prisoners who have accumulated three strikes—three dismissals of cases that were frivolous, malicious, or failed to state a claim—are no longer permitted to proceed in forma pauperis unless they can show immediate danger of serious physical injury. This case asks the Court to determine whether a dismissal by the district court immediately counts as a strike or whether it does not count until any appeal of the dismissal has …

February 20, 2015: Bad News From Ukraine, Bruce Ledewitz

Hallowed Secularism

Blog post, “Bad News From Ukraine“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

“Islamic Law” In Us Courts: Judicial Jihad Or Constitutional Imperative?, Faisal Kutty

Pepperdine Law Review

At the beginning of 2014, about a dozen states introduced or re-introduced bills to ban the use of Sharī’ah law. They hope to join the seven states that have ostensibly banned it to date. Anti-Sharī’ah advocates have cited a number of cases to back their tenuous claim that Sharī’ah is stealthily sneaking in through the doctrine of comity, but a close examination of the cases they cite contradicts their claim. Comity, when one court defers to the jurisdiction of another, has been accepted and denied based on legal principles and public policy, on a case-by-case basis. There is no creeping …

Foreign And Religious Family Law: Comity, Contract, And The Constitution, Ann Laquer Estin

Pepperdine Law Review

The article focuses on role of the U.S. courts in confronting religious laws in dispute resolution of various cases of domestic relations, contracts, and torts. Topics discussed include role of secular courts in maintaining constitutional balance between the free exercise and establishment clauses, constitutional challenges faced by religious adherents, and importance of legal pluralism in the U.S.

Rethinking The “Religious-Question” Doctrine, Christopher C. Lund

Pepperdine Law Review

The “religious question” doctrine is a well-known and commonly accepted notion about the First Amendment’s Religion Clauses. The general idea is that, in our system of separated church and state, courts do not decide religious questions. And from this premise, many things flow — including the idea that courts must dismiss otherwise justiciable controversies when they would require courts to resolve religious questions. Yet a vexing thought arises. The religious-question doctrine traditionally comes out of a notion that secular courts cannot resolve metaphysical or theological issues. But when one looks at the cases that courts have been dismissing pursuant to …

Response: Situating Ourselves In History, Steven D. Smith

Pepperdine Law Review

The author presents his views on history of religious freedom incorporated in his Brandeis lecture and in the book "The Rise and Decline of American Religious Freedom." Topics discussed include hegemonic status of special protection to religious freedom for legal academics, role of ending religious freedom in providing protection to religious actors under other constitutional provisions like free speech, and impact of ending religious freedom on other freedom like freedom of association.

The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe

Pepperdine Law Review

In recent work, Steven Smith argues that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. This Review puts to one side the substance of that argument and focuses instead on what the stakes might be, should it turn out to be correct. It concludes that the consequences would not be as severe as many people fear.

More “Vitiating Paradoxes”: A Response To Steven D. Smith, Paul Horwitz

Pepperdine Law Review

In this article, the author presents his views in response to the article The Last Chapter? by critic Steven D. Smith. Topics discussed include importance of critical legal studies (CLS) theory in reflecting political aspects of religious freedom, views of Smith in his book "The Rise and Decline of American Religious Freedom," and the relationship of egalitarianism with religious freedom.

Theorists, Get Over Yourselves: A Response To Steven D. Smith, Andrew Koppelman

Pepperdine Law Review

In this article, the author presents his views in response to the article The Last Chapter? by critic of contemporary liberal theory Steven D. Smith in reference to his book "Defending American Religious Neutrality." Topics discussed include the political aspects associated with religious freedom, role of secularism in eroding religious freedom, and conflicts between religion and modern secular egalitarianism.

The Last Chapter?, Steven D. Smith

Pepperdine Law Review

An essay is presented in which the author presents contrasting views of law professors at Stanford and Harvard University, Michael McConnell and Noah Feldman respectively on religious freedom. Topics discussed include requirement of special protection to religious freedom, protection of religious belief and expression under other constitutional provisions such as freedom of speech, and the failure of Obama Administration in providing special freedom of association to religious associations.

Criminal Innovation And The Warrant Requirement: Reconsidering The Rights-Police Efficiency Trade-Off, Tonja Jacobi, Jonah Kind

William & Mary Law Review

It is routinely assumed that there is a trade-off between police efficiency and the warrant requirement. But existing analysis ignores the interaction between law-enforcement investigative practices and criminal innovation. Narrowing the definition of a search or otherwise limiting the requirement for a warrant gives criminals greater incentive to innovate to avoid detection. With limited resources to develop countermeasures, law enforcement officers will often be just as effective at capturing criminals when facing higher Fourth Amendment hurdles. We provide a game-theoretic model that shows that when law-enforcement investigation and criminal innovation are considered in a dynamic context, the police efficiency rationale …

The Rhetoric Of Constitutional Absolutism, Eric Berger

William & Mary Law Review

Though constitutional doctrine is famously unpredictable, Supreme Court Justices often imbue their constitutional opinions with a sense of inevitability. Rather than concede that evidence is sometimes equivocal, Justices insist with great certainty that they have divined the correct answer. This Article examines this rhetoric of constitutional absolutism and its place in our broader popular constitutional discourse. After considering examples of the Justices’ rhetorical performances, this Article explores strategic, institutional, and psychological explanations for the phenomenon. It then turns to the rhetoric’s implications, weighing its costs and benefits. This Article ultimately argues that the costs outweigh the benefits and proposes a …

February 13, 2015: Why Does Isis Have Any Support?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why Does ISIS Have Any Support?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Book Review: Nuclear Weapons And Law. Ed. Arthur Selwyn Miller And Martin Feinrider. Westport, Connecticut: Greenwood Press, 1984., Dorinda G. Dallmeyer

Georgia Journal of International & Comparative Law

No abstract provided.

Regan V. Wald, The Supreme Court Defers To Presidential Authority In Matters Of Foreign Policy By Upholding Travel Restrictions To Cuba, Thomas M. Mashburn

Georgia Journal of International & Comparative Law

No abstract provided.

Abolish Anonymous Reporting To Child Abuse Hotlines, Dale Margolin Cecka

Catholic University Law Review

All states allow the public to anonymously report suspicions of child abuse or neglect to a toll free central phone number. An extensive examination of the policy and practices behind anonymous reporting hotlines indicates that they are widely unregulated and susceptible to abuse. The possible repercussions of an anonymous phone call create costs to the family and society which do not outweigh the potential benefit of allowing anonymous public reports. Under the guise of protecting children, the law has developed in such a way that it infringes on the fundamental rights of parents and children. At the same time, anonymous …

Free Speech And Speaker's Intent: A Reply To Kendrick., Larry Alexander

Faculty Scholarship

No abstract provided.

Carrying The Second Amendment Outside Of The Home: A Critique Of The Third Circuit's Decision In Drake V. Filko, Ryan Notarangelo

Catholic University Law Review

In D.C. v. Heller, the Supreme Court of the United States held that the Second Amendment protects an individual’s inherent right to keep and bear arms for self-defense-most notably, inside the home. Post-Heller, the lower courts are split on the Second Amendment’s protections outside of the home. This Note addresses the Third Circuit’s opinion on that split. In Drake v. Filko, the Third Circuit addressed whether New Jersey’s concealed carry permit law, which requires an individual to demonstrate a “justifiable need” to carry a handgun outside of the home, violated the Second Amendment. The plaintiffs were …

The Catholic Law School & Constitutional Self-Government, The Honorable Diarmuid F. O'Scannlain

Catholic University Law Review

Diarmuid F. O’Scannlain serves as a Circuit Judge of the United States Court of Appeals for the Ninth Circuit. This talk was delivered at the Columbus School of Law, The Catholic University of America on September 15, 2014 for the 2014 Brendan F. Brown Lecture and has been adapted and updated for this article format.

Chevron'S Legacy, Justice Scalia's Two Enigmatic Dissents, And His Return To The Fold In City Of Arlington, Tex. V. Fcc, Stephen J. Leacock

Catholic University Law Review

The creation by the judiciary of the doctrine of Chevron deference to administrative agencies’ determinations, followed by the judiciary’s application and supervision of the Chevron deference doctrine in Administrative Law continue. Protection by the judiciary of the evolution of the doctrine also continues as an integral component of the judiciary’s contribution to the central objective of the three coequal branches of government to achieve for the United States a more perfect union. However, synergistic cooperation between the three branches in order to achieve that central objective requires that each branch honor its own constitutional obligation under the United States Constitution …

Following Fisher: Narrowly Tailoring Affirmative Action, Eang L. Ngov

Catholic University Law Review

Affirmative action has been at the forefront of educational policies and to this day continues to enliven debates. For decades, schools have litigated over whether affirmative action can be used to create a diverse student body. Now, the litigation has shifted to whether affirmative action policies are narrowly tailored. The Supreme Court’s most recent affirmative action case, Fisher v. University of Texas at Austin, requires that schools prove that there are no workable race neutral alternatives in order to demonstrate that their affirmative action programs are narrowly tailored. This article examines the available race neutral alternatives: percentage plans; socioeconomic …

Section 702 And The Collection Of International Telephone And Internet Content, Laura K. Donohue

Georgetown Law Faculty Publications and Other Works

Section 702 of the Foreign Intelligence Surveillance Act (FISA) authorizes the NSA to collect the electronic communications of non-U.S. targets located overseas. Recent media reports and declassified documents reveal a more extensive program than publicly understood. The article begins by considering the origins of the current programs and the relevant authorities, particularly the transfer of part of the post-9/11 President’s Surveillance Program to FISA. It outlines the contours of the 2007 Protect America Act, before its replacement in 2008 by the FISA Amendments Act (FAA). The section ends with a brief discussion of the current state of foreign intelligence collection …

February 10, 2015: The Deep Cynicism Of The Political Parties On The Electoral College, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Deep Cynicism of the Political Parties on the Electoral College“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Zoabi V. Knesset's Ethics Committee, Miriam Naor, Esther Hayut, Elyakim Rubinstein, Hanan Melcer, Salim Joubran

Translated Opinions

This is a statement of reasons for the judgment handed down on Dec. 10, 2014, denying the petition of Petitioner 1, Member of Knesset Hannen Zoabi, in regard to the decision of the Knesset Ethics Committee that found that Petitioner 1 had violated Rule 1A of the Knesset Ethics Rules, and ordered her suspension from participation in meetings of the Knesset plenum and committees, other than for voting, for a period of six months. This decision was made following two statements to the media made by the Petitioner. One was a statement made in a radio interview several days after …

The Unwritten Administrative Constitution, Emily S. Bremer

Florida Law Review

It is widely accepted that the powers of the federal government flow from the U.S. Constitution. Yet in practice, most federal power is exercised through administrative agencies, institutions not mentioned in the Constitution. Since the New Deal Era, administrative law—the seemingly disparate set of rules governing agency action that are found in statutes, judicial decisions, and executive directives—has accommodated the emergence of this fourth branch of government not contemplated by the Framers. Familiar principles, including the separation of powers, the rule of law, and individual liberties, permeate administrative law. But these principles cannot be expressly located in the U.S. Constitution. …