Constitutional Law Commons^™

Child Witness Policy: Law Interfacing With Social Science, Louise E. Graham, Dorothy F. Marsil, Jean Montoya, David Ross

Law Faculty Scholarly Articles

The number of children testifying in court has posed serious practical and legal problems for the judicial system. One problem confronting the courts is how to protect children from experiencing the psychological trauma resulting from a face-to-face confrontation with a defendant who may have physically harmed the child or threatened future harm to the child. Another concern is that this trauma may impair children's memory performance and their willingness to disclose the truth. In response to these concerns, child witness innovations proliferated throughout the United States in the 1980s and 1990s. Among the innovations were: placing a screen between child …

Conservatives And The Seven Sins Of Judicial Activism, William P. Marshall

University of Colorado Law Review

No abstract provided.

Unratified Treaties And Other Unperfected Acts In International Law: Constitutional Functions, W. Michael Reisman

Vanderbilt Journal of Transnational Law

In international law's sociology of knowledge, unperfected legal acts are routinely examined and assigned some legal valence. Scholars quite properly use such material to assess incipient changes, and treatise and monograph writers are expected to determine whether some unperfected legal material is, or is in the process of becoming, customary international law. This is a perfectly proper use of unperfected legal material, because one of the functions of the scholar is to anticipate trends and to appraise incipient developments in terms of the impacts they may have on the most important goals of the international system. The most acute problem …

Foreign Relations And Federal Questions: Resolving The Judicial Split On Federal Court Jurisdiction, Erin E. Terrell

Vanderbilt Journal of Transnational Law

The federal circuit courts have disagreed concerning a fundamental issue of federal court jurisdiction: whether cases that may implicate or involve the "foreign relations" of the United States, but do not otherwise raise a more traditional "federal question" under federal law, may be removed from state courts to federal courts. This Note examines the cases that have created the split, and proposes two potential resolutions to it, one judicial and the other legislative.

A Qualified Defense Of Military Commissions And United States Policy On Detainees At Guantanamo Bay Naval Base, Kenneth Anderson

Scholarly Articles in Law Reviews & Journals

This article, published in a special post 9-11 issue of the Harvard Journal of Law & Public Policy, offers a defense of the view that terrorists such as Osama Bin Laden should be tried, if captured, outside of regular US civilian courts and in some form of military commission. The article argues that terrorists should be seen as criminals as well as enemies of the United States. Criminals who are simply deviants from the domestic social order are properly dealt with within the constitutionally constituted civilian court structure. Enemies who are not also criminals - legal combatants - are properly …

What Bush V. Gore Means For Elections In The 21st Century, Helen Norton

Publications

No abstract provided.

A Goldilocks Account Of Judicial Review?, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

According to Professor Christopher Eisgruber, judicial review of the sort embedded in United States constitutional practice is a practical mechanism for implementing the Constitution's commitment to self-government. "The justices ... make a distinctive contribution to representative democracy" because they are "better positioned [than elected officials] to represent the people's convictions about what is right." Judges can articulate "a conception of justice with which Americans in general [can] plausibly identify themselves. "

I will focus here on two themes in Professor Eisgruber's argument. The first theme can be found in many works of constitutional theory - the construction of a strong …

Comment On Professor Carrington's Article "The Independence And Democratic Accountability Of The Supreme Court Of Ohio", Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

In my view, whether or not Article III is written as members of a new constitutional convention might write it, there is nothing more fundamental to the way our entire judicial system operates (including in many ways, although indirectly, our state courts) than federal judges being as independent as law can make them. Perhaps I suffer from Burkean skepticism about reform of long-standing institutions, or perhaps I am merely a supporter of the status quo. But I believe that, despite obvious drawbacks in giving anyone life tenure in any job, we gain far more than we lose by making federal …

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part Ii, H. Patrick Furman

Publications

This two-part article reviews the constitutional and statutory right to a speedy trial and discusses the case law interpreting that right. The first part was printed in July 2002.

See Part I at http://scholar.law.colorado.edu/articles/550/.

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part I, H. Patrick Furman

Publications

This two-part article discusses the constitutional right to a speedy trial and the basics of the speedy trial statute.

See Part II at http://scholar.law.colorado.edu/articles/551/.

Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar

Journal Articles

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their sub-additive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased …

The Distinctive Place Of Religious Entities In Our Constitutional Order, Ira C. Lupu, Robert Tuttle

Villanova Law Review (1956 - )

No abstract provided.

Constitutional Design: Proposals Versus Processes, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Incomplete Compensation For Takings, Thomas W. Merrill

Faculty Scholarship

If a tribunal determines that a state actor has expropriated foreign investment property, or, under Chapter 11 of the North American Free Trade Agreement (NAFTA), that a state actor has adopted a regulation that is "tantamount to" an expropriation of foreign investment property, then that tribunal must determine the amount of compensation owed. International law has developed methods to determine the size of a compensation award when a state formally expropriates property. But the notion, reflected in Chapter 11 of NAFTA, that states may be required to pay compensation to foreign investors for what are, in effect, regulatory takings, is …

A Roundtable Discussion With Stephen L. Carter & Michael J. Gerhardt, Thomas E. Baker

Faculty Publications

Transcript of a discussion regarding the United States Supreme Court, the Supreme Court justices and justice nominees, the Senate process for confirming nominees and related issues such as fitness to serve on the court and judicial activism.

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai

Faculty Scholarship

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …

The Very Faithless Elector, Vasan Kesavan

West Virginia Law Review

No abstract provided.

Privatization And Political Accountability, Jack M. Beermann

Faculty Scholarship

This article is an attempt to draw some general connections between privatization and political accountability. Political accountability is to be understood as the amenability of a government policy or activity to monitoring through the political process. Although the main focus of the article is to examine different types of privatization, specifically exploring the ramifications for political accountability of each type, I also engage in some speculation as to whether there are there situations in which privatization might raise constitutional concerns related to the degree to which the particular privatization reduces political accountability for the actions or decisions of the newly …

Constitutional Revolutions: A New Look At Lower Appellate Review In American Constitutionalism, Robert Justin Lipkin

The Journal of Appellate Practice and Process

Judicial review allows the Supreme Court of the United States to perform revolutionary constitutional change. The United States Courts of Appeals could also be a vehicle for revolutionary constitutional adjudication.

A Funny Thing Happened On The Way To The Multiple-Choice Exam: Or, The Schoolroom Lessons From Bush V. Gore, Marcella David

Journal of Legal Education

No abstract provided.

Ten Lessons Our Constitutional Experience Can Teach Us About The Puzzle Of Animal Rights: The Work Of Steven M. Wise, Laurence H. Tribe

Animal Law Review

No abstract provided.

Institutionalizing Constitutional Interpretation, Jack Knight

Faculty Scholarship

When a constituent assembly or other constitution-making body convenes in order to draft a constitution, the members of that assembly face a complex task. Their main goal is to agree on a constitution that will serve as the basis for a government for the present and, presumably, future generations. The constitution must establish a framework for the administration of government as well as enumerate the principles that will govern the relationship between the government and the citizenry. This is essentially a process of creating political institutions that will structure the behavior of the members of that society, a set of …

Comparing Judicial Selection Systems, Lee Epstein, Jack Knight, Olga Shvetsova

Faculty Scholarship

No abstract provided.

Piercing The Veil: William J. Brennan's Account Of Regents Of The University Of California V. Bakke, Lee Epstein, Jack Knight

Faculty Scholarship

No abstract provided.

The Supreme Court As A Strategic National Policymaker, Lee Epstein, Jack Knight, Andrew D. Martin

Faculty Scholarship

No abstract provided.

A Tale Of Two Curfews (And One City): What Do Two Washington, D.C. Juvenile Curfews Say About The Constitutional Interpretations Of District Of Columbia Courts And The Confusion Over Juvenile Curfews Everywhere, Adam W. Poff

Villanova Law Review (1956 - )

No abstract provided.

Church-State Constitutional Issues: Making Sense Of The Establishment Clause And That Godless Court?: Supreme Court Decision On Church-State Relationships (Book Reviews), Michael Ariens

Faculty Articles

No abstract provided.

Too Young To Understand--Extending Equal Access To All Children In Public Schools Regardless Of Age, David Woodcock

St. Thomas Law Review

Finding the right mix of church and state is not an easy task for our society. This is especially true in our public schools. Everyday, millions of elementary school students meet after school in public school facilities to participate in Girl Scouts, Boy Scouts, Cub Scouts, Brownies, and 4-H Clubs. These organizations share the goals of preparing young boys and girls to grow into men and women of good morals and character. Religious organizations that share these goals, however, are denied access to school facilities simply because they have a religious point of view. School districts have told children that …

The Three Nixon Cases And Their Parallels In Malaysia, Myint Zan

St. Thomas Law Review

During the period from 1974 to 1982 the Supreme Court of the United States decided three cases in which the late Richard M. Nixon, the 37th President of the United States of America was involved as an appellant/ petitioner. All three cases decided by the United States Supreme Court bore the name of Richard Nixon in the title of the cases. This Article will attempt to discern some of the legal and constitutional issues which have arisen from these "Three Nixon" cases. Some of the issues in these cases would inevitably have arisen out of issues that are peculiar to …

Polling Establishment: Judicial Review, Democracy, And The Endorsement Theory Of The Establishment Clause - Commentary On 'Measured Endorsement', Jamin B. Raskin

Scholarly Articles in Law Reviews & Journals

[In Measured Endorsement] Shari Seidman Diamond and Andrew Koppelman argue that courts should rely on the techniques and methodologies of public opinion polling to survey the public and determine whether such displays endorse religion and therefore violate the Establishment Clause.' The authors support the point by developing an analogy to litigation under the Lanham Act, where courts regularly use evidence from public opinion poll results to determine whether there is legally salient 'consumer confusion' in a trademark dispute. The theoretical problem with this analogy is that the issue at stake under the Lanham Act is whether there is a likelihood …