Constitutional Law Commons^™

The Arbitrary Path Of Due Process, Harry F. Tepker Jr.

Oklahoma Law Review

No abstract provided.

Oklahoma Constitutional Law: Highway Robbery: In Re Oklahoma Capitol Improvement Authority: The Eulogy For Oklahoma Constitutional Debt Limitations, Brian Edward Wheeler

Oklahoma Law Review

No abstract provided.

Census 2000: Why The Majority In Department Of Commerce V. United States House Of Representatives Was Correct In Rejecting Statistical Sampling, Angela D. Kelley

Oklahoma Law Review

No abstract provided.

Due Process And Fundamental Rights, Martin A. Schwartz

Scholarly Works

No abstract provided.

Decide The Law, Clearly - A Reply To Judge Bettman, Ben Glassman

Cleveland State Law Review

The Honorable Marianna Brown Bettman’s dilemma is roughly this: if a clause of a state constitution is worded similarly to a clause in the federal Constitution, how can a state court develop constitutional law? But in important respects, Judge Bettman's question reflects a misunderstanding of the law. This misunderstanding prevents her from identifying what is really at stake in cases like the one she describes. Judge Bettman seems to have misread Michigan v. Long. The Long Court laid out a clear test for determining the Supreme Court's appellate jurisdiction over state cases where the grounds-federal or state-of the state court's …

The Canon(S) Of Constitutional Law: An Introduction, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Any discipline has a canon, a set of themes that organize the way in which people think about the discipline. Or, perhaps, any discipline has a number of competing canons. Is there a canon of constitutional law? A group of casebook authors met in December 1999 to discuss the choices they had made - what they had decided to include, what to exclude, what they regretted excluding (or including), what principles they used in developing their casebooks. Most of the authors were affiliated with law schools, but some had developed coursebooks for use in undergraduate political science and constitutional history …

Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman

Journal Articles

This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly …

The Constitutional Legacy Of Chief Justice Brian Dickson, Robert J. Sharpe

Osgoode Hall Law Journal

Chief Justice Brian Dickson played a central role in the elaboration of the fundamental values of the Canadian Constitution. He took a balanced approach to federalism, favouring neither federal nor provincial claims and inviting cooperation through overlapping jurisdiction. Dickson transformed the rule of law from a background value to an operative constitutional principle. His judgments on the rights of minorities reflect a remarkable empathy for the plight of the disadvantaged. Democracy informed all aspects of his constitutional thinking. Dickson rejected the contention that judicial review is anti-democratic, and his constitutional legacy reflects a sustained effort to harmonize all four fundament …

The President And Choices Not To Enforce, Peter L. Strauss

Faculty Scholarship

The executive branch is often called upon to assess how a particular statute it is charged to administer fits within the larger framework of the law. Professor Dawn Johnsen's thoughtful analysis addresses an important subset of these challenges: situations in which the President believes a particular statute is inconsistent with one or another provision of the Constitution and, therefore, should not be enforced. My purpose here is to explore the context of executive non-enforcement more broadly, in a way that may help in understanding the particular problem she addresses.

Issues of constitutional structure and function are among the most daunting …

Law's Expression: The Promise And Perils Of Judicial Opinion Writing In Canadian Constitutional Law, Paul Horwitz

Osgoode Hall Law Journal

This article argues that there is a link between one's theory of constitutional law, and one's judgments about style in judicial opinion writing. It identifies several special functions of the constitutional opinion, including the democratic function of responding to the counter-majoritarian difficulty through an act of public justification, and the inter-generational function of provoking a temporally extended dialogue about constitutional values. Drawing on these functions, it argues for an opinion writing style dubbed "open-textured minimalism," that seeks to resolve cases narrowly, articulate fundamental values and principles, and spark long-term debates about the underlying constitutional values supporting each decision. The author …

Institutional Design And The Lingering Legacy Of Antifederalist Separation Of Powers Ideals In The States, Jim A. Rossi

Vanderbilt Law School Faculty Publications

This Article applies comparative institutional analysis to separation of powers under state constitutions, with a particular focus on the nondelegation doctrine and states' acceptance of Chadha-like restrictions on legislative oversight. The Article begins by contrasting state and federal doctrine and enforcement levels in each of these separation of powers contexts. Most state courts, unlike their federal counterparts, adhere to a strong nondelegation doctrine. In addition, many states accept (de facto if not de jure) even more explicit and sweeping legislative vetoes than the federal system. The Article highlights the contrast of federal and state approaches by identifying their similarity with …

More Sunshine In The Mountain State: The 1999 Amendments To The West Virginia Open Governmental Proceedings Act And Open Hospital Proceedings Act, Brian J. Caveney

West Virginia Law Review

No abstract provided.

United States V. Emerson: The Second Amendment As An Individual Right--Time To Settle The Issue, Scott A. Henderson

West Virginia Law Review

No abstract provided.

Terms Of Endearment And Articles Of Impeachment, Christopher Slobogin, Charles W. Collier

Vanderbilt Law School Faculty Publications

It is a long-established principle that presidential impeachment is an appropriate remedy only for "high Crimes and Misdemeanors" of a public nature (with the possible exception of private crimes so heinous that the President "cannot be permitted to remain at large"). The crux of this Essay's argument is that the President's affair with Monica Lewinsky was a private matter that was not rendered "public" simply because Mr. Clinton lied about it. With its vote against removing the President, the Senate seemed to agree.

Globalization In Search Of Justification: Toward A Theory Of Comparative Constitutional Interpretation, Sujit Choudhry

Indiana Law Journal

No abstract provided.

The Charter Of Rights And Freedoms And The Rebalancing Of Liberal Constitutionalism In Canada, 1982-1997, James B. Kelly

Osgoode Hall Law Journal

This article presents a statistical analysis of the first 352 Charter of Rights and Freedoms decisions by the Supreme Court of Canada between 1982 and 1997. The author argues that the emerging approach to Charter review by the Supreme Court of Canada has led to a rebalancing of liberal constitutionalism and to a reconciliation between Charter rights and federalism. This stands in stark contrast to the highly activist approach to Charter review detected in studies by Morton, Russell, and Withey and, to a lesser extent, by Morton, Russell, and Riddell. Several factors illustrate the rebalancing of liberal constitutionalism in Canada. …

Islamic And American Constitutional Law: Borrowing Possibilities Or A History Of Borrowing?, Azizah Y. Al-Hibri

Law Faculty Publications

Islam is commonly viewed in the West as being incompatible with democracy. It is also viewed as an "Oriental" religion that has spawned violence and encouraged human rights violations. Because of the historical interaction between the West and Islam, the United States has recently been supporting efforts to export its democratic principles and human rights values to Muslim countries. In this context, the question of constitutional borrowing gains special significance. To assess the possibilities of constitutional borrowing between Islamic countries and the United States, it is important to first discuss the historical relation between the two, as well as between …

Mirabile Dictum! The Case For 'Unnecessary' Constitutional Rulings In Civil Rights Damages Actions, John M. Greabe

Law Faculty Scholarship

This article contends that, for purposes of settling the law, courts entertaining civil rights lawsuits doomed to fail on grounds of qualified immunity should presumably address the question whether the complaint pleads a viable claim that the defendant caused a violation of the plaintiff's federal rights. The article also contends that such "unnecessary" threshold rulings are not dicta.

Separate Claim Removal Vs. Article Iii: Is Section 1441(C) Unconstitutional, Daniel R. Vega

St. Thomas Law Review

It is an axiomatic principle of law that federal courts are courts of limited jurisdiction. Hence, a congressional enactment that purports to grant the federal district courts subject matter jurisdiction over state law claims absent diversity of citizenship or supplemental jurisdiction should not survive an Article III case or controversy analysis. Inexplicably, however, the application of the present separate and independent claim removal statute does just that. It allows a federal district court to exercise jurisdiction over state law claims absent any federal jurisdictional justification. In United Mine Workers of America v. Gibbs,3 the Supreme Court of the United States …

Juvenile Curfew Challenges In The Federal Courts: A Constitutional Conundrum Over The (Less Than) Fundamental Rights Of Minors', Charles W. Gerdes

St. Thomas Law Review

The purpose of this Comment is to examine the inconsistency of analytical methodology that has been employed in the federal courts to determine whether the fundamental rights of minors are coextensive with those of adults in a given regulatory scheme. Specifically, the Comment focuses on this analysis in the context of juvenile curfew ordinance challenges. Further, the Comment proposes a substantive analytical methodology that implements the instruction of Supreme Court precedent in the realm of minors' constitutional rights. To achieve this purpose, the Comment necessarily investigates Supreme Court decisions analyzing the coextensive nature of a minor's fundamental rights. In some …

Controversial Speakers On Campus: Liberties, Limitations, And Common-Sense Guidelines, Kenneth Lasson

St. Thomas Law Review

This article reviews the historical context of controversial speakers on campus, examines various liberties and limitations accorded them under the Constitution, and suggests clear and effective standards for dealing with contentious speech in an academic setting.

Marshall’S Questions, Walter E. Dellinger Iii, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Liberty Of Expression In Ireland And The Need For A Constitutional Law Of Defamation, Sarah Frazier

Vanderbilt Journal of Transnational Law

Judicial and constitutional conservatism have allowed Irish defamation law to remain remarkably close to its English common law origins. But the common law of defamation was not designed for a modem democracy with a free press, and Ireland's libel laws have a profound effect upon freedom of expression. If Ireland is to be a modern democracy, as its constitution asserts that it is, and the European Convention on Human Rights demands, it must protect a core area of free expression in order to allow the press (without the fear of repercussion) to keep the public informed about matters of concern. …

Beyond The Independent Counsel: Evaluating The Options, Thomas W. Merrill

Faculty Scholarship

The Independent Counsel Act expires on June 30, 1999. Should it be extended? Extended with modifications? Radically reformed? Or should it be allowed to sunset with nothing put in its place? To answer these questions, we need to address some more fundamental questions: (1) Do we truly need an independent office to investigate alleged wrongdoing by high-ranking officers of the executive branch? (2) If so, what are the options for the organizational structure of such an office? (3) By what criteria should the different institutional options be evaluated? (4) Under these criteria, which option represents the best, or perhaps more …

The Supreme Court As An Enforcement Agency, Harold J. Krent

Washington and Lee Law Review

No abstract provided.

Antidiscrimination And Affirmative Action Policies: Economic Efficiency And The Constitution, Edward M. Iacobucci

Osgoode Hall Law Journal

This article assesses the economic efficiency of race-based antidiscrimination and affirmative action policies with a view to assessing relevant Canadian and American constitutional law. The article reviews economic arguments about why antidiscrimination laws may be efficient in addressing externalities, in hastening the exit of bigoted employers from the market, and in preventing the potentially inefficient use of race as a proxy for information; affirmative action may be efficient in accounting for differential signaling costs across race. The article concludes that economic analysis supports the approach in section 15 of the Charter which generally bans discriminatory government action, but recognizes that …

Deference In The Judicial Resolution Of Intrachurch Disputes: The Lesser Of Two Constitutional Evils, Nathan C. Belzer

St. Thomas Law Review

In the course of its century long struggle to balance the ideals of the Free Exercise and Establishment clauses with the need for judicial intervention in the resolution of intrachurch disputes, the Supreme Court has fashioned two jurisprudential approaches. The deference approach, first enunciated by the court in Watson v. Jones and given modern approval in Serbian Eastern Orthodox Diocese v. Milivojevich, mandates that civil courts defer to the result reached by the highest authority within the church or religious association in which the dispute arose. 9 In contrast, the neutral principles approach, first suggested in Presbyterian Church v. Hull …

The Pedagogical Considerations Of Using A Constitutional Law Textbook In Political Science, Christopher P. Banks

Seattle University Law Review

This Review first describes the importance of each consideration by analyzing how a two-volume constitutional law casebook, written by Professor David M. O'Brien of the Woodrow Wilson Department of Government and Foreign Affairs at the University of Virginia, can be admirably employed to teach the principle that constitutional law is, in fact, politics. Overall, the volumes are excellent undergraduate political science constitutional law texts. However, the casebook volumes have two flaws. First, they do not address the vital question of "what is political science?," a query that ought to be routinely asked by anyone teaching public law courses. Second, they …

The Province And Duty Of The Political Departments, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Can Constitutional Borrowing Be Justified? A Comment On Tushnet, Matthew D. Adler

Faculty Scholarship

No abstract provided.