Constitutional Law Commons^™

The Constitutional Ratchet Effect, Kevin M. Stack

Vanderbilt Law School Faculty Publications

Christopher Serkin and Nelson Tebbe take an inductive and empirical approach to constitutional interpretation and elaboration. They ask whether attributes of the Constitution justify interpretive exceptionalism-that is, interpreting and elaborating the Constitution differently than other forms of law. They conclude that the characteristics of the Constitution they consider do not justify interpretive exceptionalism- at most, the "Constitution's principal distinguishing feature may be the fact that people think the Constitution is special- that it has a kind of mythological status." As Serkin and Tebbe see it, the extent to which individuals view the Constitution or constitutional law as special is best …

The Abraham Lincoln Lecture On Constitutional Law, Steven G. Calabresi

Northwestern University Law Review

These introductory remarks to the Inaugural Abraham Lincoln Lecture on Constitutional Law were delivered at Northwestern Pritzker School of Law on April 6, 2017.

The Inaugural Abraham Lincoln Lecture On Constitutional Law: Electoral College Reform, Lincoln-Style, Akhil Reed Amar

Northwestern University Law Review

This Inaugural Abraham Lincoln Lecture was delivered at Northwestern Pritzker School of Law on April 6, 2017.

Section 1: Moot Court: Masterpiece Cakeshop, Ltd., Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Constitutional Right To Collateral Post-Conviction Review, Carlos Manuel Vázquez, Stephen I. Vladeck

Georgetown Law Faculty Publications and Other Works

For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post- conviction habeas review all but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding—for the first time—that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a prisoner seeks to enforce retroactively a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.

On the …

Interpreting The Indonesian Constitutional Court Approach In Conducting Judicial Review On Cases Related To Economic And Social Rights, Andy Omara

Indonesia Law Review

One of the duties of the Indonesian Constitutional Court (Mahkamah Konstitusi - MK) is to determine whether legislation is consistent with the Constitution. If the MK determines that a statute is inconsistent with the Constitution, it declares that such statute is invalid. In such instance, the MK has the final word to determine the validity of legislation. In the view of some scholars, this feature reflects that the MK adopts strong form of judicial review. While this assertion holds true in some cases, it does not necessarily reflect the complete feature of the MK’s approach in deciding cases. In some …

The Total People's Defense And Security System: Problems Of The State-Sponsored Militia In Indonesia, Bhatara Ibnu Reza

Indonesia Law Review

The establishment of state-sponsored militia has raised concerns of human rights violations in non-international armed conflict in Indonesia. Most of the state-sponsored militia have been formed and tacitly supported by the Indonesian National Defense Forces (Tentara Nasional Indonesia) mostly based on the implementation of a concept called the Total People’s Defense and Security System (sistem pertahanan rakyat semesta-sishankamrata). The Total People’s Defense and Security System is the grand strategy adopted based on Indonesia’s experience during Indonesia’s physical revolution or armed struggle for independence (1945-1949) and recognized under the Second Amendment to the 1945 Constitution. This article will elaborate on, first, …

Are Critical Area Buffers Unconstitutional? Demystifying The Doctrine Of Unconstitutional Conditions, Brian T. Hodges

Seattle Journal of Environmental Law

Washington’s cities and counties are increasingly demanding that owners of residential shoreline properties dedicate large, predetermined critical area buffers as a mandatory condition of any new development. Such demands, when imposed without regard to the specifics of the land use proposal, would appear to violate the essential nexus and rough proportionality tests established by the U.S. Supreme Court in Nollan v. California Coastal Commission, 483 U.S. 825 (1987), and Dolan v. City of Tigard, 512 U.S. 374 (1994). Early decisions from Washington courts faithfully applied these tests, invalidating open space and buffer dedications. But in a series of …

Problems Of Conducting Equal Education Rights For Non-Formal Education: Challenges For Batam Local Government, Win Sherly Tan

Indonesia Law Review

In order to fulfill the right to education as mandated by the 1945 Constitution, non-formal education has been introduced in Indonesian society. Non-formal education is provided for in Article 26 paragraphs 1-7 of Law No. 20 of 2003 on the National Education System. Since this provision has been mandated by the Law, the question arises as to whether the Government of Batam City has efficiently implemented the right to education for all. Another question is whether the system for implementing equal education through Community Learning Centers and Homeschooling in Batam City aimed at assisting the Batam City Government is the …

The Aftermath Of Care V. Cow Palace And The Future Of Rcra In Cafo Cases, Lauren Tavar

Sustainable Development Law & Policy

No abstract provided.

Water, Water, Nowhere: Adapting Water Rights For A Changing Climate, Caleb Hall

Sustainable Development Law & Policy

No abstract provided.

Ridding Pes Systems Of The “Pay To Pollute” Principle: Pes Optimization Strategies, Kelly Carlson

Sustainable Development Law & Policy

No abstract provided.

Indoor Aquaponics In Abandoned Buildings: A Potential Solution To Food Deserts, Lisa Tomlinson

Sustainable Development Law & Policy

No abstract provided.

Investing In Resiliency: Prioritizing Water Systems And Investing In Green Infrastructure, Caitlin Cutchin

Sustainable Development Law & Policy

No abstract provided.

You Probably Shouldn’T Build There: Watershed-Based Land Use Strategies For Mitigating Global Climate Change In New Jersey’S Freshwater Systems, Matthew Knoblauch

Sustainable Development Law & Policy

No abstract provided.

About Sdlp

Sustainable Development Law & Policy

No abstract provided.

National Origin Discrimination Against Americans Of Southern And Eastern European Ancestry: A Review Of The Legal History And Judicial Interpretations, Rachel Rossoni Munafo

The Catholic Lawyer

No abstract provided.

The Quality Of Life: From Roe To Quinlan And Beyond, Joseph Cincotta

The Catholic Lawyer

No abstract provided.

August 19, 2017: What A Weak President Actually Looks Like, Bruce Ledewitz

Hallowed Secularism

Blog post, “What a Weak President Actually Looks Like“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

August 16, 2017: Moral, Historical And Legal Confusions Over Charlottesville, Bruce Ledewitz

Hallowed Secularism

Blog post, “Moral, Historical and Legal Confusions over Charlottesville“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Test Case For Presidential War Power: North Korea And Trump, Deborah Pearlstein

Online Publications

My friend Marty Lederman has a characteristically useful post up about one of many important legal questions surrounding options in the current stand-off between the United States and North Korea. As he puts it: “Would it be lawful under the U.S. Constitution for Trump to use force, including nuclear weapons, as a ‘first strike’ against North Korea, in an effort to degrade that nation’s nuclear capabilities, absent evidence that Korea has already decided to strike the United States and is going to do so with no time for legislative deliberation?”

Evidence-Based Jurisprudence Meets Legal Linguistics—Unlikely Blends Made In Germany, Hanjo Hamann, Friedemann Vogel

BYU Law Review

German legal thinking is renowned for its hair-splittingly sophisticated dogmatism. Yet, some of its other contributions to research are frequently overlooked, both at home and abroad. Two such secondary streams recently coalesced into a new corpus-based research approach to legal practice: Empirical legal research (which had already developed in Germany by 1913) and research on language and law (following German pragmatist philosopher Ludwig Wittgenstein’s work of 1953). This Article introduces both research traditions in their current German incarnations (Evidence-Based Jurisprudence and Legal Linguistics) and shows how three common features—their pragmatist observation of social practices, their interest in dissecting legal authority, …

Comments On James C. Phillips & Jesse Egbert, Advancing Law And Corpus Linguistics: Importing Principles And Practices From Survey And Content-Analysis Methodologies To Improve Corpus Design And Analysis, Edward Finegan

BYU Law Review

No abstract provided.

Corpus Linguistics As A Tool In Legal Interpretation, Lawrence M. Solan, Tammy Gales

BYU Law Review

In this paper, we set out to explore conditions in which the use of large linguistic corpora can be optimally employed by judges and others tasked with construing authoritative legal documents. Linguistic corpora, sometimes containing billions of words, are a source of information about the distribution of language usage. Thus, corpora and the tools for using them are most likely to assist in addressing legal issues when the law considers the distribution of language usage to be legally relevant. As Thomas R. Lee and Stephen C. Mouritsen have so ably demonstrated in earlier work, corpus analysis is especially helpful when …

A Lawyer’S Introduction To Meaning In The Framework Of Corpus Linguistics, Neal Goldfarb

BYU Law Review

Corpus linguistics is more than just a new tool for legal interpretation. Work in corpus linguistics has generated new ways of thinking about word meaning and about the interpretation of words in context. These insights challenge the assumptions that lawyers and judges generally make about words and their meaning. Although the words that make up a sentence are generally regarded as the basic units of meaning, corpus analysis has shown that in many cases, the meaning of a word as it is used in a given context is a function, not of the word by itself, but of the word’s …

Ordinary Meaning And Corpus Linguistics, Stefan Th. Gries, Brian G. Slocum

BYU Law Review

This Article discusses how corpus analysis, and similar empirically based methods of language study, can help inform judicial assessments about language meaning. We first briefly outline our view of legal language and interpretation in order to underscore the importance of the ordinary meaning doctrine, and thus the relevance of tools such as corpus analysis, to legal interpretation. Despite the heterogeneity of the judicial interpretive process, and the importance of the specific context relevant to the statute at issue, conventions of meaning that cut across contexts are a necessary aspect of legal interpretation. Because ordinary meaning must in some sense be …

Datamining The Meaning(S) Of Progress, Jake Linford

BYU Law Review

No abstract provided.

The Dictionary As A Specialized Corpus, Jennifer L. Mascott

BYU Law Review

Scholars consider reliance on dictionary definitions to be the antithesis of objective, big-data analysis of ordinary meaning. This Article contests that notion, arguing that when dictionaries are treated as a specialized database, or corpus, they provide invaluable textured understanding of a term. Words appear in dictionaries both as terms being defined and as terms defining other words. Examination of every reference to a contested term throughout a dictionary’s definitional entries of other words may substantially benefit statutory and constitutional interpretation. Because dictionaries catalog language, their use as a specialized corpus provides invaluable insight into the ways a particular word is …

Advancing Law And Corpus Linguistics: Importing Principles And Practices From Survey And Content Analysis Methodologies To Improve Corpus Design And Analysis, James C. Phillips, Jesse Egbert

BYU Law Review

The nascent field of law and corpus linguistics has much to offer legal interpretation. But to do so, it must more fully incorporate principles from survey and content-analysis methodologies used in the social sciences. Importing such will provide greater rigor, transparency, reproducibility, and accuracy in the important quest to determine the meaning of the law. This Article highlights some of those principles to provide a best- practices guide to those seeking to perform law and corpus linguistic analysis.

Triangulating Public Meaning: Corpus Linguistics, Immersion, And The Constitutional Record, Lawrence B. Solum

BYU Law Review

This Article contributes to the development of an originalist methodology by making the case for an approach that employs three distinct methods, each of which serves as a basis for confirming or questioning the results reached by the other two. This approach will be called the Method of Triangulation. The three component techniques are as follows: 1. The Method of Corpus Linguistics: The method of corpus linguistics employs large-scale data sets (corpora) that provide evidence of linguistic practice. 2. The Originalist Method of Immersion: The method of immersion requires researchers to immerse themselves in the linguistic and conceptual world of …