Constitutional Law Commons^™

Regulating Lolicon: Toward Japanese Compliance With Its International Legal Obligations To Ban Virtual Child Pornography, Cory L. Takeuchi

Georgia Journal of International & Comparative Law

No abstract provided.

Human Rights Law And Racial Hate Speech Regulation In Australia: Reform And Replace?, Dr. Alan Berman

Georgia Journal of International & Comparative Law

No abstract provided.

New Judicial Review In Old Europe, Alyssa S. King

Georgia Journal of International & Comparative Law

No abstract provided.

New Approaches To Data-Driven Civilian Oversight Of Law Enforcement: An Introduction To The Second Nacole/Cjpr Special Issue, Daniel L. Stageman, Nicole M. Napolitano, Brian Buchner

Publications and Research

In April of 2016, National Association for Civilian Oversight of Law Enforcement (NACOLE) and John Jay College partnered to sponsor the Academic Symposium “Building Public Trust: Generating Evidence to Enhance Police Accountability and Legitimacy.” This essay introduces the Criminal Justice Policy Review Special Issue featuring peer-reviewed, empirical research papers first presented at the Symposium. We provide context for the Symposium in relation to contemporary national discourse on police accountability and legitimacy. In addition, we review each of the papers presented at the Symposium, and provide in-depth reviews of each of the manuscripts included in the Special Issue.

My Turn: 'We The People' And The Garland Nomination, John M. Greabe

Law Faculty Scholarship

[Excerpt] "Because I teach constitutional law, a friend recently asked me whether Judge Merrick Garland or President Obama might successfully sue to compel the Senate to take action on the nomination of Judge Garland to fill the vacancy on the United States Supreme Court.

Almost certainly not, I told him. Under settled precedent, a judge would dismiss such a case as raising a non-legal ''political" question. It would be very difficult to develop acceptable decisional standards for such a claim. Moreover, courts are reluctant to entertain lawsuits challenging mechanisms that the Senate uses to oversee the judiciary."

September 14, 2016: Moral Relativism In Its Most Base Form”, Bruce Ledewitz

Hallowed Secularism

Blog post, “Moral relativism in its most base form”“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Israel Medical Association V. Knesset, Elyakim Rubinstein, Meni Mazuz, Noam Sohlberg

Translated Opinions

Petitions to strike down the Prisons Ordinance (Amendment No. 48) Law, 5775-2015 (hereinafter: the Law), which addresses “preventing harm to the health of a prisoner on a hunger strike”, and permits, in some instances, coercive medical treatment of hunger striking prisoners despite their refusal. The Petitions addressed, inter alia, the constitutionality of section 19N(e) of the Law, which instructs that in addressing a request for authorizing medical treatment, the court shall take into account “considerations of risk to human life or a real risk of serious harm to national security, to the extent that evidence to this effect is …

The "Higher Law" Doctrine In Bracton And St. Thomas, Charles M. Whelan, S.J.

The Catholic Lawyer

No abstract provided.

September 6, 2016: Is Secularism Doomed To Superficiality And An Incapacity To Sustain The Human Spirit?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Is Secularism Doomed to Superficiality and an Incapacity to Sustain the Human Spirit?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Sai, Petitioner V.Transportation Security Administration, Respondent, Patricia E. Roberts, Tillman J. Breckenridge

Appellate and Supreme Court Clinic

No abstract provided.

Testing For Regulatory Penalties: Insuring The Health Of Fedrealism In The Age Of Obamacare, Steven Z. Hodaszy

West Virginia Law Review

No abstract provided.

Professional Speech And The First Amendment, Rodney A. Smolla

West Virginia Law Review

No abstract provided.

A Guide To The Singapore Constitution (2nd Ed.), Smu Apolitical

Student Publications

This primer is an introductory guide to the Constitution, its history, the legal concepts associated with it (such as the separation of powers and constitutional supremacy) and so much more. With illustrations and diagrams to aid in understanding, it is designed for readers of all ages and from all walks of life. The Constitution is the supreme law of the land. It provides for, among other things, the 3 branches of the Singapore government (namely, the executive, the legislature and the judiciary) and secures our fundamental liberties. The provisions in the Constitution are applied in our daily lives, both directly …

Shedding Light On The "Going Dark" Problem And The Encryption Debate, John Mylan Traylor

University of Michigan Journal of Law Reform

In an effort to protect the enormous volume of sensitive and valuable data that travels across the Internet and is stored on personal devices, private companies have created encryption software to secure data from criminals, hackers, and terrorists who wish to steal it. The greatest benefit of encryption also creates the biggest problem: Encryption software has become so secure that often not even the government can bypass it. The “Going Dark” problem—a scenario in which the government has obtained the legal authority to search a suspected criminal’s encrypted device but lacks the technical ability to do so—is becoming increasingly common. …

Section 4: Criminal, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Section 1: Moot Court: Pena-Rodriguez V. Colorado, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Rhetoric Of The Fourth Amendment: Toward A More Persuasive Fourth Amendment, Timothy C. Macdonnell

Washington and Lee Law Review

In the last forty-five years, the United States Supreme Court’s jurisprudence through the lens of classical rhetoric. Opinions are assessed based on three areas of persuasion: appeals to logic (logos); appeals to emotion (pathos); and appeals to credibility (ethos). By examining the Justices’ opinions in this fashion, patterns of unpersuasive opinion writing emerge. While a common source for all unpersuasive opinions is not available, common patterns of weak persuasion in particular appeals do exist. Weak appeals to ethos commonly stem from Justices failing to fully confront the doctrine of stare decisis. Weak pathos-based appeals often involve Justices engaging in misplaced …

The “Ample Alternative Channels” Flaw In First Amendment Doctrine, Enrique Armijo

Washington and Lee Law Review

In reviewing a content-neutral regulation affecting speech, courts ask if the regulation leaves open “ample alternative channels of communication” for the restricted speaker’s expression. Substitutability is the underlying rationale. If the message could have been expressed in some other legal way, the ample alternative channels requirement is met. The court then deems the restriction’s harm to the speaker’s expressive right as de minimis and upholds the law. For decades, courts and free speech scholars have assumed the validity of this principle. It has set First Amendment jurisprudence on the wrong course. Permitting a speech restriction because the speaker could have …

Diversifying To Mitigate Risk: Can Dodd–Frank Section 342 Help Stabilize The Financial Sector?, Kristin Johnson, Steven A. Ramirez, Cary Martin Shelby

Washington and Lee Law Review

No abstract provided.

Guns And Alienage: Correcting A Dangerous Contradiction, D. Mcnair Nichols Jr.

Washington and Lee Law Review

No abstract provided.

A Legal Obituary For Ramiro, Sheri Lynn Johnson

University of Michigan Journal of Law Reform

Most death penalty lawyers who practice long enough will watch the execution of a client. It is always, always terrible, but not always terrible in the same way. With each client’s execution, a lawyer is confronted with the death of a human being—not an accidental death, not an inevitable death, but an avoidable one—and with his or her own failure to prevent that death. Some executions also involve a very personal loss for the lawyer because of their relationship with the client. Other executions are horrific because things go awry and impose extreme suffering on the executed individual. No matter …

The Puzzling Absence Of Economic Power In Constitutional Theory, Ganesh Sitaraman

Vanderbilt Law School Faculty Publications

Contemporary constitutional theory needs to be rooted in a more realistic description of the American political process. This Article frst argues that leading debates in constitutional theory have failed to engage with the reality of elite economic domination and that without taking into account the role economic elites play in American politics, these theories have serious limitations even on their own terms. Second, it shows that any attempt to design institutions to account for the influence of economic power will face persistent, pervasive, and perverse problems. A central task of constitutional theory going forward must be to overcome or at …

Between Judicial Oligarchy And Parliamentary Supremacy: Understanding The Court's Dilemma In Constitutional Judicial Review, Seow Hon Tan

Research Collection Yong Pung How School Of Law

This article considers the dilemma that constitutional judicial review presents to the most well-meaning of judges — that of navigating the narrow and difficult road between parliamentary supremacy and judicial oligarchy. It examines the Singapore Court of Appeal’s delineation of legal and extra-legal considerations in view of Ronald Dworkin’s theory of adjudication in determining the constitutionality of section 377A of the Penal Code in Lim Meng Suang v. Attorney General. It proposes an alternative natural law approach to constitutional judicial review based on Radbruch’s formula, which helps courts to avoid the pitfalls of judicial idiosyncrasies and usurpation of legislative mandate …

Pursuing A Reconciliatory Administrative Law: Aboriginal Consultation And The National Energy Board, Matthew J. Hodgson

Osgoode Hall Law Journal

Environmental assessment within the process of regulatory review is recognized as the preferred means for carrying out the duty to consult and accommodate Aboriginal rights in administrative decisions over proposed resource development. Recent evidence suggests that integrating the duty to consult into National Energy Board (NEB) proceedings and subsuming the law of Aboriginal consultation under principles of administrative justice have not advanced the goal of reconciliation. This article considers whether the statutory mandate of the National Energy Board requires it to have sufficient regard to Aboriginal rights in a manner consistent with the adjudication of constitutional issues in administrative law. …

The Protection Of Civil And Political Rights By The Constitutional Court Of Indonesia, Pan Mohamad Faiz

Indonesia Law Review

One of important mechanisms considered effective to protect civil and political rights of the citizens in Indonesia is constitutional review. This mechanism was created after the constitutional reform by establishing the new Constitutional Court in 2003 as an independent and separate court from the Supreme Court. This article examines the development of human rights guaranteed in the Indonesian Constitution. It also provides a critical analysis of the Constitutional Court’s role in protecting civil and political rights in Indonesia through its landmark decisions on five categories, namely: (1) freedom of assembly and association, (2) freedom of opinion, speech and expression, (3) …

August 30, 2016: Ben-Hur, Done That, Bruce Ledewitz

Hallowed Secularism

Blog post, “Ben-Hur, Done That“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

'Serial' Should Release Bergdahl Interviews, Jeffrey Bellin

Popular Media

No abstract provided.

The Fate Of Armed Resistance Groups After Peace, David C. Williams

Indiana Journal of Constitutional Design

No abstract provided.

August 26, 2016: The Murder Rate Is Down, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Murder Rate is Down“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 18, 2016: America Would Not Ban The Burkini, Bruce Ledewitz

Hallowed Secularism

Blog post, “America Would Not Ban the Burkini“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.