Constitutional Law Commons^™

Property-As-Society, Timothy M. Mulvaney

Faculty Scholarship

Modern regulatory takings disputes present a key battleground for competing conceptions of property. This Article offers the following account of the three leading theories: a libertarian view sees property as creating a sphere of individual freedom and control (property-as-liberty); a pecuniary view sees property as a tool of economic investment (property-as-investment); and a progressive view sees property as serving a wide range of evolving communal values that include, but are not limited to, those advanced under both the libertarian and pecuniary conceptions (property-as-society). Against this backdrop, the Article offers two contentions. First, on normative grounds, it asserts that the conception …

Reassessing The Constitutional Foundation Of Delegated Legislation In Canada, Lorne Neudorf

Dalhousie Law Journal

This article assesses the constitutionalfoundation by which Parliament lends its lawmaking powers to the executive, which rests upon a century-old precedent established by the Supreme Court of Canada in a constitutional challenge to wartime legislation. While the case law demonstrates that courts have continued to follow this earlyprecedent to allow theparliamentary delegation of sweeping lawmaking powers to the executive, it is time for courts to reassess the constitutionality ofdelegation in light ofCanada's status as a liberal democracy embedded within a system of constitutional supremacy. Under the Constitution of Canada, Parliament is placed firmly at the centre ofpublic policymaking by being …

Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

Much ink has already been spilled on the relationship of constitutional originalism to precedent (or, more specifically, the doctrine of stare decisis). The debate includes contributions from Randy Barnett, Steven Calabresi, Kurt Lash, Gary Lawson, John McGinnis with Michael Rappaport, Michael Paulsen, and Lee Strang, not to mention Justice Antonin Scalia—all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, Ronald Dworkin, Michael Gerhardt, Randy Kozel, and David Strauss. Some writers are more difficult to classify; Akhil Amar comes to mind. And there are many other contributions to …

Visibly (Un)Just: The Optics Of Grand Jury Secrecy And Police Violence, Nicole Smith Futrell

Dickinson Law Review (2017-Present)

Police violence has become more visible to the public through racial justice activism and social justice advocates’ use of technology. Yet, the heightened visibility of policing has had limited impact on transparency and accountability in the legal process, particularly when a grand jury is empaneled to determine whether to issue an indictment in a case of police violence. When a grand jury decides not to indict, the requirement of grand jury secrecy prevents public disclosure of the testimony, witnesses, and evidence presented to the grand jury. Grand jury secrecy leaves those who have seen and experienced the act of police …

Applying The Pennsylvania Environmental Rights Amendment Meaningfully To Climate Disruption, Robert B. Mckinstry Jr., John C. Dernbach

Michigan Journal of Environmental & Administrative Law

The Pennsylvania Constitution contains a unique Environmental Rights Amendment (ERA), which recognizes an individual right to “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” The ERA also includes a public trust element that makes “Pennsylvania’s public natural resources . . . the common property of all the people, including generations yet to come.” It makes the Commonwealth the “trustee of these resources,” requiring it to “conserve and maintain them for the benefit of all the people.” Recent decisions by the Pennsylvania Supreme Court (the Court) in Robinson Township v. …

State Action And The Constitution's Middle Band, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

On conventional accounts, the state action doctrine is dichotomous. When the government acts, constitutional limits take hold and the government action is invalid if those limits are exceeded. When the government fails to act, the state action doctrine leaves decisions to individuals, who are permitted to violate what would otherwise be constitutional constraints.

It turns out though that the modern state action doctrine creates three rather than two domains. There is indeed a private, inner band where there is thought to be insufficient government action to trigger constitutional constraints, but often there is also a public, outer band where there …

Who, What, And Where: A Case For A Multifactor Balancing Test As A Solution To Abuse Of Nationwide Injunctions, Matthew Erickson

Northwestern University Law Review

There has been a significant increase in the use of a controversial, dramatic remedy known as the nationwide injunction. This development is worrisome because it risks substantial harm to the judiciary by encouraging forum shopping, freezing the “percolation” of legal issues among the circuits, and undermining the comity between the federal courts. But a complete ban on nationwide injunctions is both impractical and undesirable. This Note proposes a solution to limit the abuse of nationwide injunctions without banning them outright. When fashioning remedies, courts should simplify the sheer number of relevant factors by focusing on three main meta-factors, or categories, …

Kennedy's Last Term: A Report On The 2017-2018 Supreme Court, Marc O. Degirolami, Kevin C. Walsh

Faculty Publications

(Excerpt)

Twenty-eighteen brought the end of Justice Anthony Kennedy’s tenure on the Supreme Court. We are now entering a period of uncertainty about American constitutional law. Will we remain on the trajectory of the last half-century? Or will the Court move in a different direction?

The character of the Supreme Court in closely divided cases is often a function of the median justice. The new median justice will be Chief Justice John Roberts if Kennedy’s replacement is a conservative likely to vote most often with Justices Clarence Thomas, Neil Gorsuch, and Samuel Alito. This will mark a new phase of …

Emoji: The Other Tech Monopoly, Edward T. Brawley

Cardozo International & Comparative Law Review

No abstract provided.

Unlocking The Fifth Amendment: Passwords And Encrypted Devices, Laurent Sacharoff

Fordham Law Review

Each year, law enforcement seizes thousands of electronic devices—smartphones, laptops, and notebooks—that it cannot open without the suspect’s password. Without this password, the information on the device sits completely scrambled behind a wall of encryption. Sometimes agents will be able to obtain the information by hacking, discovering copies of data on the cloud, or obtaining the password voluntarily from the suspects themselves. But when they cannot, may the government compel suspects to disclose or enter their password? This Article considers the Fifth Amendment protection against compelled disclosures of passwords—a question that has split and confused courts. It measures this right …

Special Justifications, Randy J. Kozel

Journal Articles

The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices …

All The President's Privileges, Ann M. Murphy

Journal of Law and Policy

This article provides a historical perspective of the evidentiary privilege doctrines that are in play in the current Special Counsel investigation. New issues of waiver by tweet are addressed. It is well established that a sitting president is subject to judicial process in certain circumstances, and that President Trump and his close advisors have and will continue to claim one or both of these privileges. I predict that these privileges will be inapplicable, applicable but waived, or applicable but fall within the crimefraud exception to the privileges. The crime-fraud exception has never been raised in a Special Counsel investigation of …

Single Subject Rules And Civil Rights: Using Legislative-Process Restrictions To Facially Challenge Constitutionally Suspect Laws, Annie Melton

Journal of Law and Policy

This Note argues that the single subject rule, a procedural restriction, can be used to facially challenge certain insidious laws. By giving courts an opening to review a law in its most elemental form—a deliberated-over means of adequately implementing a new, or remedying an existing, policy—the single subject rule tests it for characteristics like clarity, practicality, and predictability. The rule is rarely litigated in many states, but doing so draws attention to a fundamental philosophy of the legislative process, which is especially compelling in light of the ideological battles that are dominating statehouses across the country and giving rise to …

Speech-And-Display Laws: Balancing Physicians' Free Speech Rights And States' Interests In The Context Of Abortion, Emily Ruppert

Journal of Law and Policy

“The question is not pro-abortion or anti-abortion, the question is who makes the decision: a woman and her physician, or the government.” – Gloria Steinem

Supreme Court Norms Of Impersonality, Allison Orr Larsen

Faculty Publications

No abstract provided.

Statutory Interpretation And The Rest Of The Iceberg: Divergences Between The Lower Federal Courts And The Supreme Court, Aaron-Andrew P. Bruhl

Faculty Publications

This Article examines the methods of statutory interpretation used by the lower federal courts, especially the federal district courts, and compares those methods to the practices of the U.S. Supreme Court. This novel research reveals both similarities across courts and some striking differences. The research shows that some interpretive tools are highly overrepresented in the Supreme Court’s decisions, while other tools are much more prevalent in the lower courts. Differences in prevalence persist even after accounting for the selection effect that stems from the Supreme Court’s discretionary docket. Another finding—based on a study of 40 years of cases from all …

Is Natural Law A Public Good?, Eliot T. Tracz

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

A Clear And Present Danger: The Need For Regulated Accountability For Online Service Providers To Preserve And Promote Free Speech, Notice, And Due Process, Benjamin H. Winters

Cardozo Journal of Equal Rights & Social Justice

No abstract provided.

Laying Siege To The Ivory Tower: Resource Allocation In Response To The Heckler's Veto On University Campuses, Macklin W. Thornton

San Diego Law Review

High in the towers of academia, the lofty ideals of free speech are tossed around with a deceptive ease. However, as legal minds grapple with heady legal doctrines, free speech has concrete consequences down at the foot of those towers. At this ivory base, the property line between the university and the community blur. Students and nonstudents assemble and deliver conflicting speech that, at times, foments violence. Molotov cocktails, gun shots, broken windows, disgruntled students. All attempts to trigger the dreaded heckler’s veto—an attempt the government has an obligation to prevent. In addition to the public relations disasters grown from …

Towards More Intra-Asia Judicial Cooperation In The Constitutional Sphere, Maartje De Visser

Research Collection Yong Pung How School Of Law

On 14 August 2015, the Association of Asian Constitutional Courts and Equivalent Institutions unanimously agreed to welcome Myanmar’s Constitutional Tribunal and the constitutional chamber of the Supreme Court of Kyrgyzstan as new members.

A Cognitive Theory Of The Third-Party Doctrine And Digital Papers, H. Brian Holland

Faculty Scholarship

For nearly 200 years, an individual’s personal papers enjoyed near-absolute protection from government search and seizure. That is no longer the case. With the widespread adoption of cloud-based information processing and storage services, the third-party doctrine operates to effectively strip our digital papers of meaningful Fourth Amendment protections.

This Article presents a new approach to reconciling current third-party doctrine with the technological realities of modern personal information processing. Our most sensitive data is now processed and stored on cloud computing systems owned and operated by third parties. Although we may consider these services to be private and generally secure, the …

Problem Kewenangan Mahkamah Konstitusi Memutus Perselisihan Hasil Pilkada, M. Abid Ulil Albab Af

Jurnal Hukum & Pembangunan

Initially the election was included in the regional autonomy government regime, so that the settlement of election disputes was under the authority of the Supreme Court. Then the legislators put the election into the electoral regime and formed Law No. 12 of 2008 concerning Regional Government which in Article 236C of the Law states that the settlement of election disputes was transferred and resolved in the Constitutional Court. On May 19, 2014 the Constitutional Court granted the examination of Article 236 C of Law No. 12 of 2008 related to the authority of the Constitutional Court to decide on disputes …

Rekonseptualisasi Judicial Pardon Dalam Sistem Hukum Indonesia (Studi Perbandingan Sistem Hukum Indonesia Dengan Sisitem Hukum Barat), Mufatikhatul Farikhah

Jurnal Hukum & Pembangunan

Judicial Pardon in Indonesia is the result of comparative studies with several countries including the Netherlands, Greece, Portugal and Uzbekistan. The author tries to discover what legal system underlies the concept of Judicial Pardon applied in some countries and how the concept of judicial pardon is most compatible with the Indonesian Law System. This paper is based on normative legal research with a Historical Approach, Comparative Approach, and conceptual approach. Currently the criminal law is also influenced by the Anglo saxon legal system. Responding to the second issue is more appropriate when incorporating the conception of Islam as well as …

Constitutional And Legal Basis Of Relations Between The Parliament And The Government Of The Republic Of Uzbekistan, X. Turdiev

Review of law sciences

This article highlights and analyzes the main legislative acts which regulates the interaction of parliament and government in the Republic of Uzbekistan.

Theoretical-Legal Basis Of The Object Of The Constitutional Court, M. Abdullaeva

Review of law sciences

In this article, a scientific-theoretical analysis of the concept of object of constitutional justice is carried out. Moreover, in the research proposals and recommendations on improving this area are listed.

Issues On Enhancing The Mechanisms Of Providing The Execution Of Law Documents By State Bodies, Z. Turabaeva

Review of law sciences

The article analyzes issues of improvement of the implementation of legislative acts, including the issues of enforcement of adopted laws and their implementation, broad introduction of modern ICT into this process and the development of functions of the analysis, predictions, evaluation and increasing the quality of decision taking of management bodies.

Constitutional And Legal Basis Of Relations Between The Parliament And The Government Of The Republic Of Uzbekistan, X. Turdiev

Review of law sciences

This article highlights and analyzes the main legislative acts which regulates the interaction of parliament and government in the Republic of Uzbekistan.

Theoretical-Legal Basis Of The Object Of The Constitutional Court, M. Abdullaeva

Review of law sciences

In this article, a scientific-theoretical analysis of the concept of object of constitutional justice is carried out. Moreover, in the research proposals and recommendations on improving this area are listed.

Issues On Enhancing The Mechanisms Of Providing The Execution Of Law Documents By State Bodies, Z. Turabaeva

Review of law sciences

The article analyzes issues of improvement of the implementation of legislative acts, including the issues of enforcement of adopted laws and their implementation, broad introduction of modern ICT into this process and the development of functions of the analysis, predictions, evaluation and increasing the quality of decision taking of management bodies.

September 27, 2018: Abortion And Climate Change, Bruce Ledewitz

Hallowed Secularism

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