Constitutional Law Commons^™

Violating Due Process: The Case For Changing Texas State Trafficking Laws For Minors, Cristina M. Becker

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

A Justified Obligation: Counsel’S Duty To File A Requested Appeal In A Post-Waiver Situation, Lauren Gregorcyk

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Why Turner V. Rogers Was And Wasn’T Correctly Decided: How The Fourteenth Amendment Should Be Read For Child Support Contemnors, Gina Rose Lauterio

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

The Future Of Societal Constitutionalism In The Age Of Acceleration, Riccardo Prandini

Indiana Journal of Global Legal Studies

The aim of this article is to reframe the debate on societal constitutionalism and constitutionalization from a spatial to a temporal framework. This analytical shift is due to the dramatic acceleration of societal processes, which are increasingly crossing the spatial boundaries of nation-states and of all the other social structures embedded in peculiar places. This high-speed society is characterized by the so-called temporalization of complexity, which influences every aspect of social life and, in particular, the "validity" of law. On the basis of this theoretical background, I would like to show that changing the form of observation from a spatial …

Jurisgenerative Constitutionalism: Procedural Principles For Managing Global Legal Pluralism, Paul Schiff Berman

Indiana Journal of Global Legal Studies

Global Legal Pluralism recognizes the inevitability (and sometimes even the desirability) of multiple legal and quasi-legal systems purporting to regulate the same act or actor. However, the resulting pluralism-just as inevitably-creates conflicts among norms that are potentially intractable. Thus, legal systems must address how best to respond to the realities of pluralism. This inquiry has constitutional dimensions because it goes to the constitutive character of communities and their relationships with other communities, be they international, transnational, national, subnational, or epistemic.

One response to pluralism is jurispathic: "kill off" all competing laws by declaring that one set of norms-and only one-shall …

Societal Constitutionalism, Social Movements, And Constitutionalism From Below, Gavin W. Anderson

Indiana Journal of Global Legal Studies

Within constitutional theory, in comparison to other fields of scholarship, the significance of transnational social movements has been relatively unexamined in the literature. Societal constitutionalism, grounded in the sociological method and open to reexamining received understandings of constitutionalism, would appear conducive to undertaking this enterprise. However, the general absence of social movements from the societal constitutionalism literature is not coincidental, and reflects a shared commitment with more conventional approaches to an institutional conception of constitutionalism, and a belief in the latter's necessary benevolence and Western origin. These assumptions reflect the limited focus of contemporary analyses of globalization and constitutionalism upon …

Expanding Constitutionalism, Gunther Teubner, Anna Beckers

Indiana Journal of Global Legal Studies

Transnational Societal Constitutionalism Symposium, Collegio Carlo Alberto, Turin Italy, May 17-19, 2012

On The Politics Of Societal Constitutionalism, Emilios Christodoulidis

Indiana Journal of Global Legal Studies

This paper is an internal critique of the theory of societal constitutionalism as developed by Gunther Teubner, with a specific emphasis on the constitutional and the political dimensions of the theory. As critique it focuses on the arguably unacknowledged dangers of co-option: the danger that constitutionalization, as an ongoing process, undercuts what we typically associate with the constitutional, which is its framing function; that this problem is accentuated when it comes to the transnational; and that its reflexivity runs the danger of market capture, in which case it remains only nominally political. The danger of market capture for societal constitutionalism …

Transnational Corporations' Outward Expression Of Inward Self-Constitution: The Enforcement Of Human Rights By Apple, Inc., Larry Cata Backer

Indiana Journal of Global Legal Studies

Societal constitutionalism presents us with alternatives to state-centered constitutional theory. But this alternative does not so much displace as extend conventional constitutional theory as a set of static premises that structure the organization of legitimate governance units. Constitutional theory, in either its conventional or societal forms, engages in both a descriptive and a normative project-the former looking to the incarnation of an abstraction and the later to the development of a set of presumptions and principles through which this incarnation can be judged. Constitutional theory is conventionally applied to states-that is, to those manifestations of organized power constituted by a …

We And Cyberlaw: The Spatial Unity Of Constitutional Orders, Hans Lindahl

Indiana Journal of Global Legal Studies

This paper scrutinizes the fundamental assumption governing Gunther Teubner's theory of societal constitutionalism, namely that societal constitutions are ultimately about the regulation of inclusion and exclusion in global function systems. While endorsing the central role of inclusion/exclusion in constitutions, societal or otherwise, I argue that inclusion and exclusion are primordial categories of collective action, rather than functional categories. As a result, the self-closure which gives rise to a legal collective is spatial as much as it is temporal, and subjective no less than material. Inasmuch as legal orders must establish who ought to do what, where, and when, this entails, …

Transnational Normative Orders: The Constitutionalism Of Intra- And Trans-Normative Law, Poul F. Kjaer

Indiana Journal of Global Legal Studies

No weakening, but rather an expansion, of statehood can be observed in the contemporary world. This does not, on the other hand, imply that extensive forms of constitutional ordering do not exist outside the realm of states. Instead, the evolution of world society has been characterized by a protracted dual movement where the expansion and densification of statehood and autonomous forms of transnational ordering gradually emerged in a mutually constitutive fashion. One implication of this is that neither the concept of the state nor the concept of nonstate transnational entities is adequately capable of delineating the object of constitutional analysis. …

Fundamental Rights, Private Law, And Societal Constitution: On The Logic Of The So-Called Horizontal Effect, Florian Roedl

Indiana Journal of Global Legal Studies

The paper raises the issue of a normative justification of the horizontal effect of fundamental rights in private law. Justification in this sense means that the reasons given are neither functional nor instrumental, but that the reasons are supposed to be subject to the intrinsic logic of private law. In traditional doctrine, the reason usually given to confer horizontal effect to fundamental rights is a deferral to the constitution: The constitutional text decides whether and how fundamental rights apply to private legal relationships. This answer implies that fundamental rights are either logically or normatively alien to private law, that they …

Occupy The System! Societal Constitutionalism And Transnational Corporate Accounting, Moritz Renner

Indiana Journal of Global Legal Studies

Today's most pressing constitutional question is posed by a global economic system whose expansive tendencies seem no longer controllable. In addressing this question, the theory of Societal Constitutionalism apparently shifts established ideological coordinates by developing a theory of the self-constitutionalization of social spheres. It seeks to combine the virtues of grassroots democracy with the sophistication of systemic social theory. Thus, its normative claim can be formulated as an oxymoron: "Occupy the System!" The claim is an oxymoron because it points to the apparent impossibility of critical social theory in a functionally differentiated society: How can a functional system such as …

Constitutionalization Of Nongovernmental Certification Programs, Jaye Ellis

Indiana Journal of Global Legal Studies

Certification programs created by nonstate actors such as the Forest Stewardship Council and Marine Stewardship Council are innovative and potentially highly effective governance initiatives. This article works from the premise that these Councils can be understood as political authorities promulgating law. These Councils, and other actors like them, are generally analyzed from the point of view of governance, which triggers questions about their effectiveness and legitimacy. The approach adopted here shifts the focus to questions of their authority and the validity of the rules, standards, and decision-making processes that they have put in place. The Councils have put in motion …

A Sociology Of Constituent Power: The Political Code Of Transnational Societal Constitutions, Christopher Thornhill

Indiana Journal of Global Legal Studies

This article proceeds from a critical sociological revision of classical constitutional theory. In particular, it argues for a sociological reconstruction of the central concepts of constitutional theory: constituent power and rights. These concepts, it is proposed, first evolved as an internal reflexive dimension of the modern political system, which acted originally to stabilize the political system as a relatively autonomous aggregate of actors, adapted to the differentiated interfaces of a modern society.

This revision of classical constitutional theory provides a basis for a distinctive account of transnational constitutional pluralism or societal constitutionalism. The article argues that the construction of transnational …

Functioning Just Fine: The Unappreciated Value Of The Supreme Court Confirmation Process, Lori A. Ringhand, Paul M. Collins Jr.

Scholarly Works

Scholars, politicians, and legal commentators from across the ideological spectrum seem to agree that the U.S. Supreme Court confirmation process is broken and needs to be fixed. Reform proposals vary, but share a common assumption that if we do not do something the legitimacy of the Court will be at risk.

This Article presents an alternative view, arguing that the confirmation process is in fact functioning just fine. The way we confirm Supreme Court nominees today is not perfect, but nor is it all that bad. If there is a crisis facing the high Court today, it lies not in …

Against Agnosticism: Why The Liberal State Isn't Just One (Authority) Among The Many, Linda C. Mcclain

Faculty Scholarship

This article takes up the gauntlet thrown down by Professor Abner Greene’s recent book, Against Obligation: The Multiple Sources of Authority in a Liberal Democracy, to those scholars, politicians, and activists who believe that realizing the ideal of e pluribus unum (out of many, one) as well as constitutional principles of liberty and equality require a robust role for government. Government, Greene argues, is just one source of authority among many others, and citizens – or even public officials – have no general moral duty to obey the law. The political and constitutional order of the United States, he contends, …

Natural Law And The Ninth Amendment, Thomas E. Towe

Pepperdine Law Review

No abstract provided.

The California Constitution And Counsel At Pretrial Lineups: Disneyland Claims Or Deadly Serious Business? , John Moravek

Pepperdine Law Review

No abstract provided.

Privacy, Jed Rubenfeld

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Sequestering Witnesses: Does The Practice Interfere With Defendants' Constitutional Rights?, Harold Baer Jr.

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Question Of Constitutionality: How Separate Are The Powers? The Administrative And Social Ramifications Of Lockyer V. City And County Of San Francisco, Kristin Ecklund

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Uncle Sam And The Partitioning Punitive Problem: A Federal Split-Recovery Statute Or A Federal Tax?, Skyler M. Sanders

Pepperdine Law Review

It is no secret that the doctrine of punitive damages has had a storied past in American jurisprudence, yet it has remained an integral part of both federal and state courts throughout the country. Most, if not all, attempts to restrict punitive damage awards have failed due to the over-inclusive or under-inclusive nature of the remedial measures; however, split-recovery statutes—another punitive damage regulatory tool—have been touted as striking a proper balance between limiting plaintiff windfalls while still punishing and deterring defendants. Even so, such statutes have been meet with vigorous constitutional criticism and fail to curtail punitive damage awards for …

Is "Different But Equal" The New "Separate But Equal"? Nclb's Single-Sex Schooling Option Signals New Horizons For Some While Challenging Equal Education Convictions For Others , Elaine Ekpo

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Is The Doctor In? The Contemptible Condition Of Immigrant Detainee Healthcare In The U.S. And The Need For A Constitutional Remedy, Kate Bowles

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Mexican-American Penal Sentences Treaty: A Run-On Sentence, Gary Gray

Pepperdine Law Review

No abstract provided.

Graham V. Florida: How The Supreme Court's Rationale Encourages Reform Of The Juvenile Justice System Through Alternative Dispute Resolution Strategies, Heather Hojnacki

Pepperdine Dispute Resolution Law Journal

The article presents information on the reforms in the juvenile justice system of the U.S. through alternative dispute resolution-based strategies which has been illustrated with the U.S. Supreme Court cases Roper v. Simmons, and Graham v. Florida. It discusses rationale of the U.S. Supreme Court in Graham case and analyzes Graham's current and future impact. A proportionality standard expressed in legislative enactments and state practice was applied by the U.S. Supreme Court in Graham case.

The Constitution Should Protect Everyone - Even Lawyers, Arthur Gilbert, William Gorenfeld

Pepperdine Law Review

No abstract provided.

A Comment On The Instruction Of Constitutional Law, William H. Rehnquist

Pepperdine Law Review

No abstract provided.

Intramilitary Tort Immunity: A Constitutional Justification , Kevin M. Fillo

Pepperdine Law Review

No abstract provided.