Constitutional Law Commons^™

A Cognitive Theory Of The Third-Party Doctrine And Digital Papers, H. Brian Holland

Faculty Scholarship

For nearly 200 years, an individual’s personal papers enjoyed near-absolute protection from government search and seizure. That is no longer the case. With the widespread adoption of cloud-based information processing and storage services, the third-party doctrine operates to effectively strip our digital papers of meaningful Fourth Amendment protections.

This Article presents a new approach to reconciling current third-party doctrine with the technological realities of modern personal information processing. Our most sensitive data is now processed and stored on cloud computing systems owned and operated by third parties. Although we may consider these services to be private and generally secure, the …

Rekonseptualisasi Judicial Pardon Dalam Sistem Hukum Indonesia (Studi Perbandingan Sistem Hukum Indonesia Dengan Sisitem Hukum Barat), Mufatikhatul Farikhah

Jurnal Hukum & Pembangunan

Judicial Pardon in Indonesia is the result of comparative studies with several countries including the Netherlands, Greece, Portugal and Uzbekistan. The author tries to discover what legal system underlies the concept of Judicial Pardon applied in some countries and how the concept of judicial pardon is most compatible with the Indonesian Law System. This paper is based on normative legal research with a Historical Approach, Comparative Approach, and conceptual approach. Currently the criminal law is also influenced by the Anglo saxon legal system. Responding to the second issue is more appropriate when incorporating the conception of Islam as well as …

Constitutional And Legal Basis Of Relations Between The Parliament And The Government Of The Republic Of Uzbekistan, X. Turdiev

Review of law sciences

This article highlights and analyzes the main legislative acts which regulates the interaction of parliament and government in the Republic of Uzbekistan.

Theoretical-Legal Basis Of The Object Of The Constitutional Court, M. Abdullaeva

Review of law sciences

In this article, a scientific-theoretical analysis of the concept of object of constitutional justice is carried out. Moreover, in the research proposals and recommendations on improving this area are listed.

Issues On Enhancing The Mechanisms Of Providing The Execution Of Law Documents By State Bodies, Z. Turabaeva

Review of law sciences

The article analyzes issues of improvement of the implementation of legislative acts, including the issues of enforcement of adopted laws and their implementation, broad introduction of modern ICT into this process and the development of functions of the analysis, predictions, evaluation and increasing the quality of decision taking of management bodies.

Constitutional And Legal Basis Of Relations Between The Parliament And The Government Of The Republic Of Uzbekistan, X. Turdiev

Review of law sciences

This article highlights and analyzes the main legislative acts which regulates the interaction of parliament and government in the Republic of Uzbekistan.

Theoretical-Legal Basis Of The Object Of The Constitutional Court, M. Abdullaeva

Review of law sciences

In this article, a scientific-theoretical analysis of the concept of object of constitutional justice is carried out. Moreover, in the research proposals and recommendations on improving this area are listed.

Issues On Enhancing The Mechanisms Of Providing The Execution Of Law Documents By State Bodies, Z. Turabaeva

Review of law sciences

The article analyzes issues of improvement of the implementation of legislative acts, including the issues of enforcement of adopted laws and their implementation, broad introduction of modern ICT into this process and the development of functions of the analysis, predictions, evaluation and increasing the quality of decision taking of management bodies.

September 27, 2018: Abortion And Climate Change, Bruce Ledewitz

Hallowed Secularism

Blog post, “Abortion and Climate Change“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

They Try: How The Supreme Court Has Addressed Issues Of Racial And Gender Discrimination In The Jury Selection Process, Jana C. Kelnhofer

Scholarly Undergraduate Research Journal at Clark (SURJ)

The rise of publicized police brutality cases (but not the rise in number of cases themselves) has resulted in an increase of public scrutiny of the court process. More often than not, police officers are found not guilty by a jury of their peers, only for the public to later find out that the jury was composed almost entirely of whites. How did this process start? How does it persist? Has the legal system attempted to address this problem, and discrimination in the jury selection process in general? By examining past Supreme Court decisions, this review explores the ways that …

September 26, 2018: Constitution Day Talk At Robert Morris University, Bruce Ledewitz

Hallowed Secularism

Blog post, “Constitution Day Talk at Robert Morris University“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Problem Of Purely Procedural Preemption Presented By The Federal Hear Act, William L. Charron

Pepperdine Law Review

The underlying purpose of the Holocaust Expropriated Art Recovery Act of 2016 (the HEAR Act), which is to return Nazi-looted artwork to victims or their families, is undeniably laudable. Restituting Nazi-looted artwork is and has been a moral objective of this country since the conclusion of World War II. It is equally clear that victims and their families can often face obstacles to gathering evidence from the war that would demonstrate Nazi theft in court. The HEAR Act strives to address these concerns by imposing a federal statute of limitations over all state law causes of action that would enable …

Ericsson, Inc. V. Regents Of The University Of Minnesota And A New Frontier For The Waiver By Litigation Conduct Doctrine, Jason Kornmehl

Pepperdine Law Review

Eleventh Amendment sovereign immunity is one of the most confusing areas of constitutional law. The waiver by litigation conduct doctrine represents a particularly complex aspect of Eleventh Amendment immunity. Courts, for example, have not precisely defined the extent to which waiver in a prior proceeding might extend to a future one. The Patent Trial and Appeals Board recently considered this issue in a novel context. In Ericsson, Inc. v. Regents of the University of Minnesota, the Patent Trial and Appeals Board applied the waiver by litigation conduct doctrine in an inter partes review proceeding. Combining the Eleventh Amendment, non-Article III …

The Security Court, Matt Steilen

Maryland Law Review Online

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …

The Security Court, Matthew J. Steilen

Journal Articles

The Supreme Court is concerned not only with the limits of our government’s power to protect us, but also with how it protects us. Government can protect us by passing laws that grant powers to its agencies or by conferring discretion on the officers in those agencies. Security by law is preferable to the extent that it promotes rule of law values—certainty, predictability, uniformity, and so on—but, security by discretion is preferable to the extent that it gives government the room it needs to meet threats in whatever form they present themselves. Drawing a line between security by law and …

Reasonable Action: Reproductive Rights, The Free Exercise Clause, And Religious Freedom In The United States And The Republic Of Ireland, Liam Ray

St. John's Law Review

(Excerpt)

This Note will argue that by denying certiorari in Stormans v. Wiesman, the Supreme Court missed an important opportunity to provide guidance to the states as to how the Free Exercise Clause applies to the kind of stocking and dispensing regulations adopted by the State of Washington. This Note will further argue from a policy perspective that the approach to these kinds of regulations adopted by the Republic of Ireland (“ROI”) presents the best approach for states to adopt because it provides a balance in terms of respecting the free exercise rights of pharmacists and pharmacy owners with …

September 23, 2018: Politics After The Death Of God, Bruce Ledewitz

Hallowed Secularism

Blog post, “Politics After 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, 2018: The End Of Constitutional Government, Bruce Ledewitz

Hallowed Secularism

Blog post, “The End of Constitutional Government“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Section 1: Moot Court: Nieves, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

How Strong Does The Evidence Against Kavanaugh Need To Be?, Katherine A. Shaw

Online Publications

The allegation made by Christine Blasey Ford — that at age 15 she was the victim of a sexual assault by a 17-year-old Brett Kavanaugh — has not only upended Judge Kavanaugh’s Supreme Court confirmation hearings, but has also left Americans wondering what standards should apply to an accusation like this.

The Meaning Of Wrongdoing - A Crime Of Disrespecting The Flag: Grounds For Preserving National Unity, Mohammed Saif-Alden Wattad

San Diego International Law Journal

To conclude on this issue, the rights of others, as individuals and as a whole, are formulated as the social protected interest that criminal law seeks to protect through criminal means, and it is with these rights that criminal law theory should be concerned in the first level of scrutiny. However, in the second level of scrutiny, an additional set of rights are brought into play; these are the rights of the individual, namely the actor, to exercise their constitutional rights e.g., free speech, liberty, free exercise of religion. The second level of scrutiny requires balancing those rights with the …

September 18, 2018: The Kavanaugh Story, Bruce Ledewitz

Hallowed Secularism

Blog post, “ The Kavanaugh Story“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Against Lgbt Exceptionalism In Religious Exemptions From Antidiscrimination Obligations, Carlos A. Ball

Journal of Civil Rights and Economic Development

(Excerpt)

In my estimation, Tebbe is correct that contested legal and policy questions arising from the intersection of religious freedom and equality principles demand difficult normative work. But, after reading the book, I am not sure he realizes the extent to which his social coherence approach is historically driven. Whether through analogies from concrete, past cases or by abstracting normative principles from past cases, Tebbe is essentially looking at how the country has, in the past, accommodated religious freedom in the pursuit of other objectives to guide us through current religious liberty controversies involving LGBT rights and reproductive freedom.

Religious Freedom In An Egalitarian Age: Rejecting Doctrinal Nihilism In The Adjudication Of Religious Claims, Laura S. Underkuffler

Journal of Civil Rights and Economic Development

(Excerpt)

Tebbe’s argument proceeds along two separate tracks. First, he rejects the arguments of academic skeptics and others that these conflicts are by nature something that is not amenable to the judicial task. Rather, he argues, conflicts between religious freedom and civil rights can be worked through by courts, using what he calls a “social coherence” approach. This does not, of itself, “pretend to determine unique answers to pressing substantive questions”; but it establishes a way to generate reasoned conclusions that are intrinsically superior to the ad hockery or nihilistic approach that skeptics assume.

Next, Tebbe combines this approach with …

In (Partial) Praise Of (Some) Compromise: Comments On Tebbe, Chad Flanders

Journal of Civil Rights and Economic Development

(Excerpt)

There are four very brief sections to my comment on Tebbe’s book. The first suggests some skepticism about social coherentism, and its hope to provide a neutral method for adjudicating disputes. I apply this skepticism in the second part to Tebbe’s discussion of what counts as “harm” and how to measure it. The third and fourth parts deal with my favored way of dealing with our deep disagreements and compromises when it comes to associations and employment. I should add here that nothing I say is meant to take away from Tebbe’s achievement in his book. The writing is …

Tebbe And Reflective Equilibrium, Andrew Koppelman

Journal of Civil Rights and Economic Development

(Excerpt)

The basic method of Nelson Tebbe’s fine book, “Religious Freedom in an Egalitarian Age,” is what John Rawls called “reflective equilibrium”. Rawls famously proposed a theory of justice that aimed to be “strictly deductive.” His deductions, however, take place within a larger account of justification that he calls “reflective equilibrium,” in which we try to bring our considered moral judgments into line with our more general principles. “A conception of justice cannot be deduced from selfevident premises or conditions on principles; instead, its justification is the matter of the mutual support of many considerations, of everything fitting together into …

Attempting To Engage In Socially Coherent Dialogue About Religious Liberty And Equality, Alan Brownstein

Journal of Civil Rights and Economic Development

(Excerpt)

Most book reviews reflect the reviewer’s final conclusions about the author’s finished work. This review is more of a snapshot of the lengthy dialogue I have been engaged in for several months with Nelson Tebbe, the author of the book being reviewed. The symposium conference organized by the St. John’s Journal of Civil Rights and Economic Development in September 2016, invited several church-state scholars to comment on a draft manuscript of Nelson Tebbe’s forthcoming book, Religious Freedom in an Egalitarian Age. However, the book was not fully completed when this multi-participant dialogue began.

Reply: Conscience And Equality, Nelson Tebbe

Journal of Civil Rights and Economic Development

(Excerpt)

In this Reply, I explore some larger questions that have been prompted by the book but that fell outside its focus on the interaction between religious freedom and civil rights law. Spurred by the responses, but also independent of them, I examine the implications of my arguments for an egalitarian theory of the First Amendment. Though it is of course impossible to fully develop such a vision in this Reply, there is room to begin that work. Along the way, I answer some of the more pointed questions posed in these six responses.

“Taking The Threat To American Democracy Seriously: The Truth/Justice/Democracy Initiative,”, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

September 15, 2018: Who’S Afraid Of The Russians?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Who’s Afraid of the Russians?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.