Constitutional Law Commons^™

The Constitutionalisation Of Development, Maartje De Visser

Research Collection Yong Pung How School Of Law

There is a steadily growing interest among academics and policymakers alike in the role of constitutional law in fostering socio-economic development. This attention ties in, at a practical level, with the latest wave of law and development thinking, which conceives of rule-of-law institutions and democracy as existing in a symbiotic relationship with economic growth that together will propel countries to achieve higher levels of foreign investment and overall prosperity. The idea that public law, and the constitution more specifically, has potential in spurring development has for instance found expression across a range of the Sustainable Development Goals formulated under the …

Murr V. Wisconsin And The Inherent Limits Of Regulatory Takings, Lynda L. Butler

Faculty Publications

This article examines the confusion surrounding constitutional protection of property under the substantive due process and takings clauses, using Murr as a springboard for reconsidering the substantive due process/takings distinction and asking whether the regulatory takings doctrine should remain a viable constitutional concept despite its muddled principles. While powerful reasons support treating as compensable economic regulations that are functionally equivalent to physical takings, important differences between physical and regulatory takings need to be recognized as limits to the degree of equivalence possible and therefore to the regulatory takings doctrine. A look back at the evolutionary paths of substantive due process, …

Out Of The Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained, A. Benjamin Spencer

Faculty Publications

Since the Supreme Court's decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, litigants and lower courts have wrestled with the issue of whether a federal court must be able to exercise personal jurisdiction with respect to each of the claims asserted by absent class members in a class action and, if so, what standard governs that jurisdictional determination. This issue is rapidly coming to a head and is poised for inevitable resolution by the Supreme Court in the near future; multiple circuit courts have heard appeals from district courts that have reached varying conclusions on …

Constitutional Moral Hazard And Campus Speech, Jamal Greene

William & Mary Law Review

One underappreciated cost of constitutional rights enforcement is moral hazard. In economics, moral hazard refers to the increased propensity of insured individuals to engage in costly behavior. This Essay concerns what I call “constitutional moral hazard,” defined as the use of constitutional rights (or their conspicuous absence) to shield potentially destructive behavior from moral or pragmatic assessment. What I have in mind here is not simply the risk that people will make poor decisions when they have a right to do so, but that people may, at times, make poor decisions because they have a right. Moral hazard is not …

Power Matters: Power Configuration And The Death Of American Law, Otis Grant

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Constitutional Judges As Agents For Development, Maartje De Visser

Research Collection Yong Pung How School Of Law

This Article explores how constitutional judges can become agents for development and how they may wish to go about performing this role. Due to the high politico-economic stakes involved and the inevitability of trade-offs between competing interests, judicial review of developmental questions is liable to expose judges to negative fall-outs. At the same time, it is fairly common for Asian constitutions to expressly set out the parameters or objectives for economic development that the State is expected to realize, while simultaneously recognizing a suite of (socio-)economic rights, thereby providing textual ammunition to query the validity of a government’s chosen implementation …

The Right To Appointed Counsel: The Case For Unaccompanied Immigrant Children, Amanda Kavita Sewanan

Cardozo Law Review

No abstract provided.

The State Of Exactions, Timothy M. Mulvaney

Faculty Scholarship

In Koontz v. St. Johns River Water Management District, the Supreme Court slightly expanded the range of circumstances involving conditional land use permits in which heightened judicial scrutiny is appropriate in a constitutional “exaction” takings case. In crafting a vision of regulators as strategic extortionists of private property interests, though, Koontz prompted many takings observers to predict that the case would provide momentum for a more significant expansion of such scrutiny in takings cases involving land use permit conditions moving forward, and perhaps even an extension into other regulatory contexts, as well.

Five years on, this Article evaluates the extent …

Faktor Kesukarelaan Dalam Pengunduran Diri Pekerja/Buruh: Studi Putusan Pengadilan Hubungan Industrial Di Medan No. 262/Pdt.Sus-Phi/2017/Pn.Mdn, Di Banda Aceh No. 5/Pdt.Sus- Phi/2016/Pn.Bna, Dan Di Palu No. 18/Pdt.Sus-Phi/2015/Pn.Pal, Patricia Cindy Andriani, Melania Kiswandari

Jurnal Hukum & Pembangunan

Resignation is one of the mechanisms for terminating employment relations that requires voluntary factor in the employee’s action. However, in a number of cases, the resignation was actually not based on the initiative of employee, but was motivated by the employer’s action who put employee into difficult situation so that he/she had no choice but to resign. Therefore, it is necessary to further examine the regulations regarding termination of employment and their implementation at the Industrial Relations Court level toward cases about the employee’s involuntary resignation in decision no. 262/Pdt.Sus- PHI/2017/PN.Mdn, no. 5/Pdt.Sus-PHI/2016/PN.Bna, and no. 18/Pdt.Sus- PHI/2015/PN.Pal. The research is …

Problematika Lembaga Mahkamah Agung Dalam Penegakan Hukum Di Indonesia, Muntaha -

Jurnal Hukum & Pembangunan

A process of law enforcement was considerably as part of system of judicature as well as a part of procedure of justice. The issue on this research is “What is the problematic in Supreme Court related to law enforcement in Indonesia”. This study principally aimed: a. Academically, as further base data. b. Practically, as evaluated material for Supreme Court in adjusting related to law enforcement in institutional jurisdiction. The used method in this research is by means of conceptual approach. Subsequently, the outcome is that problematic of law enforcement toward Supreme Court are: a. Integrity of law enforcer that has …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

When Protest Is The Disaster: Constitutional Implications Of State And Local Emergency Power, Karen J. Pita Loor

Seattle University Law Review

The President’s use of emergency authority has recently ignited concern among civil rights groups over national executive emergency power. However, state and local emergency authority can also be dangerous and deserves similar attention. This article demonstrates that, just as we watch over the national executive, we must be wary of and check on state and local executives—and their emergency management law enforcement actors—when they react in crisis mode. This paper exposes and critiques state executives’ use of emergency power and emergency management mechanisms to suppress grassroots political activity and suggests avenues to counter that abuse. I choose to focus on …

Review Of Ian Kerr And Jane Bailey, The Implications Of Digital Rights Management For Privacy And Freedom Of Expression, 2 Journal Of Information, Communication & Ethics In Society 87 (2004), Ann Bartow

Law Faculty Scholarship

Ian Kerr, who passed away far too young in 2019, was an incisive scholar and a much treasured colleague. The wit that sparkled in his papers was matched only by his warmth toward his friends, of whom there were many. He and his many co-authors wrote with deep insight and an equally deep humanity about copyright, artificial intelligence, privacy, torts, and much much more.

Ian was also a valued contributor to the Jotwell Technology Law section. His reviews here display the same playful generosity that characterized everything else he did. In tribute to his memory, we are publishing a memorial …

Establishing Climate Change Standing: A New Approach, Ian R. Curry

Pace Environmental Law Review

Climate change is one of the thorniest political, legal, and economic issues of our time. Therefore, a new legal approach to the issue is required. This Note proposes a streamlined approach for climate change standing, one that assumes injury in fact and causation for a class of discernible climate change harms. A streamlined approach will enable litigants harmed by climate change to seek redress in court, providing an outlet for redress where there has previously been none. Part II of this Note discusses the constitutional doctrine of standing. It begins with a summary of Article III and the logic behind …

Protecting Natural Resources - Forever: The Obligations Of State Officials To Uphold "Forever" Constitutional Provisions, Rachel E. Deming

Pace Environmental Law Review

This Article analyzes the attacks on a state constitutional conservation lands program since the election of a governor and state legislature opposed to environmental regulation in 2010 – a precursor to current happenings at the federal level under the Trump administration. Former Florida Governor Rick Scott and his administration have spent an average of over $40 million a year in taxpayer money to defend and, in most cases, pay judgments, in lawsuits challenging mandates of the Florida Constitution.

I examine this issue of ignoring or deliberately violating constitutional requirements through the lens of state constitutional provisions that protect natural resources, …

September 22, 2019: Bends Toward Justice Podcast--Where You Can Hear It Now, Bruce Ledewitz

Hallowed Secularism

Blog post, “Bends Toward Justice Podcast--Where You Can Hear It Now“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

September 22, 2019: Nihilism In The Heartland, Bruce Ledewitz

Hallowed Secularism

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

September 14, 2019: Constitution Day 2019, Bruce Ledewitz

Hallowed Secularism

Blog post, “Constitution Day 2019“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Section 7: Constitutional Law, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

Beyond Constitutional Frontiers: Tribal Rights, Resources, And Reform, Monte Mills

Faculty Journal Articles & Other Writings

The current era arguably poses the most complex and challenging environmental dilemmas in human history. With climate change, increasingly scarce resources, and exponentially expanding demand, traditional legal notions of standing, harm, and liability are being stretched and reshaped to accommodate a shifting set of values regarding natural resources and potentially respond to the moment. While these novel and innovative approaches are modestly reshaping the fields of natural resources and environmental law, however, the historical and time-honored claims of Indian tribes are also presenting avenues for rethinking the foundations of those areas of law. Arising both within and outside of the …

September 12, 2019: Bends Toward Justice Podcast Debuts This Week, Bruce Ledewitz

Hallowed Secularism

Blog post, “Bends Toward Justice Podcast Debuts This Week“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Continuing Validity Of The Electoral College: A Quantitative Confirmation, Audrey J. Lynn

ConLawNOW

In recent years, efforts to undermine or discard the Electoral College have gained substantial momentum, leading to a need for objective answers about how the system affects presidential elections. Using accessible quantitative techniques, this article answers three essential questions about the purposes and effects of the Electoral College using a unique approach that measures the electoral system’s success and potential in terms that correspond to its raison d'être, parameterizing the problem in terms of satisfaction and population instead of voters. This article dispenses with arcane, voter-based statistical models. It recognizes the Electoral College as a discrete mathematical system and applies …

Rationing The Constitution: Beyond And Below, Aaron-Andrew P. Bruhl

Popular Media

No abstract provided.

(In Re Guardianship Of Carmen Wittler) Wittler V. Wittler, 135 Nev. Adv. Op. 31 (Aug. 01, 2019), Mckay Holley

Nevada Supreme Court Summaries

No abstract provided.

U.S. Bank Nat’L Ass’N Nd Vs. Resources Grp., Llc, 135 Nev. Adv. Op. 26 (July 3, 2019), Christopher Gonzalez

Nevada Supreme Court Summaries

The Court determined that (1) previous case law and the NRS require an HOA that is seeking to foreclose a superpriority lien to send the holder of a recorded first deed of trust a notice of default and notice of sale, even when they have not been formally requested. Additionally, they held that (2) the district court would have to decide questions of fact to determine whether Resources Group was a bona fide purchaser.

Cameron V. Eighth Judicial Dist. Court In & For Cty. Of Clark, 135 Nev. Adv. Op. 28, 445 P.3d 843, Manuel Gurule

Nevada Supreme Court Summaries

Timmie Cameron filed a writ of mandamus challenging the district court’s ruling to increase both his bail from $25,000 to $100,000 and his level of monitoring from mid-level electronic monitoring to house arrest.The Court ruled the district court did not establish a good cause to warrant the bail increase and writ relief was granted.

Presidential War Powers And Humanitarian Intervention, Michael J. Sherman

Pace Law Review

Does the fact that Article I, Section 8 of the United States Constitution reserves to Congress the authority to “declare war” mean that the president needs congressional approval before using military force? As this Article discusses, there are a range of answers to this question. The Article examines this debate in the context of humanitarian intervention, i.e. military actions taken, not for purposes of conquest, but instead to stop largescale, serious violations of human rights. If the president wishes to use the military for these purposes, should he have more authority under the Constitution to do so? Less? The same? …

The Venue Shuffle: Forum Selection Clauses & Erisa, Christine P. Bartholomew, James A. Wooten

Journal Articles

Forum selection clauses are ubiquitous. Historically, the judiciary was hostile to contracts limiting a plaintiff’s venue options. The tide has since turned. Today, lower courts routinely enforce such clauses. This Article challenges this reflexive response in the special context of ERISA cases. It mines ERISA’s statutory text, rich legislative history, and historical context to supply an in-depth exploration of ERISA’s unique policy goal of providing employees “ready access to the Federal courts.” The Article then explains how forum selection clauses undermine this goal and thus should be invalid under controlling Supreme Court jurisprudence.

Anderson (Arnold) V. State, 135 Nev. Adv. Op. 37 (Sept. 5, 2019), Alexandra Matloff

Nevada Supreme Court Summaries

The Court held that if a trial court determines by a preponderance of the evidence that a witness is unable to testify because the defendant wrongfully procured the witness’s unavailability and acted with intent to do so, the forfeiture-by-wrongdoing exception can be applied in order to deny a defendant’s rights under the Confrontation Clause of the Sixth Amendment. The Court also held that in determining whether the forfeiture-by-wrongdoing exception applies, the trial court must hear the opposing parties’ arguments in the absence of a jury.

"23 And Plea": Limiting Police Use Of Genealogy Sites After Carpenter V. United States, Antony Barone Kolenc

West Virginia Law Review

No abstract provided.