Constitutional Law Commons^™

Urgensi Memahami Arbitrase Bagi Pemangku Kepentingan Dunia Bisnis Di Indonesia, Bambang Hariyanto, Saptarini Saptarini

Jurnal Hukum & Pembangunan

Abstract The resolution of business disputes through arbitration forums is increasingly favored by the majority of business actors in Indonesia. One indication of this is the growing number of business actors, both from the private sector and state-owned enterprises, who include arbitration agreements as dispute clauses in their contracts. Arbitration has even attracted the interest of MSMEs (Micro, Small, and Medium Enterprises) as a forum to resolve their business disputes. This phenomenon ultimately highlighted the urgency for stakeholders in the business world to understand arbitration. Using normative juridical methods, this article contained a series of analyses of primary materials, including …

Judicial Preview Oleh Mahkamah Konstitusi Sebagai Upaya Preventif Perlindungan Hak Konstitusional (Studi Komperasi Dengan Mahkamah Konstitusi Chili), Elisabeth Sihaloho, Fifiana Wisnaeni

Jurnal Hukum & Pembangunan

The existence of the Constitutional Court as stated in the provisions of Article 24C of the 1945 Constitution has established the dignity of the Constitutional Court's position as a Guardian of the Constitution which is understood as a judicial institution that protects the constitutional rights of Indonesia citizens. This research is aimed at solving the problem of the constitutional rights of Indonesia citizens who are often injured through legal products in the form of laws. Therefore, this study focuses on studying, analyzing and comparing how the context of judicial preview or can be understood as a test of a draft …

From Publius To Santos: Congressional Expulsion And The Enforcement Of Legislative Virtue, Matthew A. Edwards

Emory Law Journal Online

On December 1, 2023, in a historic decision, the U.S. House of Representatives voted to expel Congressperson George Santos. Prior to Santos’s expulsion, only two members of the House had been expelled since the Civil War. In fact, although he was under indictment, Santos was the first member to be expelled from the House without first being convicted of a federal crime or supporting the Confederacy. Santos presented an unusual case, however. By the time that he was expelled, Santos was nationally reviled for fabricating nearly every aspect of his personal biography. Although it is difficult to know what the …

Law School News: Transforming Adversity Into Advocacy 9-4-2024, Andrew Clark, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

The Addiction Restriction: Addiction And The Right To Bear Arms, F. Lee Francis

West Virginia Law Review

This Article is the culmination of a yearlong research project, and it is the first to address addiction and drug use in the area of Second Amendment law. I argue that addicts may be disarmed, if they are dangerous. My dangerousness test centers on illicit use and imminent danger. That is, do the facts and circumstances prove that an individual is in fact a danger? To put it another way, disarmament is appropriate when there exists demonstrable evidence that a person poses a significant and imminent risk of causing public injury. This Article develops and expands upon some themes and …

The Takings Blunderbuss: From Pennsylvania Coal To Dobbs, Michael Allan Wolf

UF Law Faculty Publications

This Article explores three problems with the excess use of the Takings Clause (the "takings blunderbuss") that should cause concern not to left-wing judges and scholars who endorse seemingly unfettered activism from the bench and champion an organic view of the Constitution, but instead, and somewhat surprisingly, to conservatives who claim to eschew those practices. The first problem is that the text and original understanding, as far as we can discern, indicate that the Takings Clause was designed to ensure that owners receive payment when they are forced to sacrifice ownership of their tangible property for public use, most commonly …

Constitutional Law—Librarians Are Not Babysitters: Enacting Legislation To Curtail Unconstitutional Book Bans, Gracie Roper

University of Arkansas at Little Rock Law Review

No abstract provided.

George Washington’S Teeth, Wittgenstein, And Two Gruesome Problems For Originalism, Scott Devito

University of Arkansas at Little Rock Law Review

With the conservative turn of the U.S. Supreme Court, originalism has become ascendant. This rise to preeminence should trouble the legal community because originalism is grounded on a naive understanding of the interpretative process. Once we wash away this naivety and delve more deeply into legislative interpretation, we see that originalism fails in three ways. First, here is recent empirical evidence that general meaning is rare and, as such, the original meaning required by the theory is unlikely to have existed. Second, originalism fails to take into account the Problem of Induction—that making generalized inferences from a limited dataset is …

Celebrate Constitution And Citizenship Day Every Day, Not Just Sept. 17th, Maryam Ahranjani

Faculty Scholarship

Learning - and teaching - about the Constitution is not easy, but it is important. It was written so long ago by some powerful men that many of us cannot easily relate to. But they conceived of a living, breathing document whose intentions would guide future generations. Today we will begin to explore why it is important to strive to make the Constitution seem real and applicable to our lives. The Constitution provides guidelines for how government should work. And it provides for the basic individual rights and freedoms we enjoy in the United States.

Section 9 Of The Canadian Charter & Arbitrary Laws: A Taxonomy, An Organizational Ideal, And A Path Forward, François Tanguay-Renaud

Articles & Book Chapters

One of the conditions for a detention not to be arbitrary under s. 9 of the Canadian Charter of Rights and Freedom is that it must be authorized by a law that is itself not arbitrary. The Supreme Court’s pronouncements about what makes a law arbitrary have been brief, question begging and, at times, conflicting. This article takes stock and proposes a path forward.

First, it reviews the Supreme Court’s case law with the goal of developing a taxonomy of its various accounts of arbitrary laws. It identifies three: a formal account (with a procedural check), a purpose-sensitive account, and …

Administrative Arrest Warrants: Armed Encounters Outside The Judicial Process, Meg Penrose

Faculty Scholarship

This Article considers three related questions. First, is a person “seized” under the Fourth Amendment when law enforcement restricts a person’s movements in their home and limits their ability to leave or go about their business? Second, does the answer to this seizure inquiry turn on the person’s citizenship status? And third, how do lawyers ensure that courts discard bad law? This last question is not a qualitative assessment— with good and bad law being tied to one’s legal ideology. Rather, certain legal holdings, dating back over half a century, have been whittled away if not entirely eroded. When this …

Constitutional Law Through Co-Curricular Civic Engagement, Jason M. Leggett

Open Educational Resources

No abstract provided.

Major Questions, Common Sense?, Kevin Tobia, Daniel E. Walters, Brian Slocum

Faculty Scholarship

The Major Questions Doctrine (“MQD”) is the newest textualist interpretive canon, and it has driven consequential Supreme Court decisions concerning vaccine mandates, environmental regulation, and student loan relief. But the new MQD is a canon in search of legitimization. Critics allege that the MQD displaces the Court’s conventional textual analysis with judicial policymaking. Textualists have now responded that the MQD is a linguistic canon, consistent with textualism. Justice Barrett recently argued in Biden v. Nebraska that the MQD is grounded in ordinary people’s understanding of language and law, and scholarship contends that the MQD reflects ordinary people’s understanding of textual …

Constructing A Liberal/Progressive “Constitution In Exile”: An Appreciation Of Jack Balkin’S Memory And Authority, James E. Fleming

Faculty Scholarship

Balkin’s book makes clear why many liberal/progressive criticisms of conservative originalists—that they get the history wrong or cherry-pick it, that they only selectively insist upon originalism and otherwise ignore it, and the like—deliver at best glancing blows (as far as the conservative originalists are concerned). For one thing, he shows that the construction of memory entails the construction of forgetting (or erasure),7 which is essential to originalist projects that whitewash our historical injustices and repudiate the progressive aspirations embodied in our history. Hence, when conservative originalists erase unjust aspects of our history, and liberals and progressives criticize them for not …

Prudence, Role Morality, And Restraint: Judge Wilkinson On The Separation Of Powers, Katherine Mims Crocker, Jack Goldsmith

Faculty Scholarship

Caution in reviewing the actions of the legislative and executive branches has been a hallmark of the jurisprudence of Judge J. Harvie Wilkinson III. The Constitution “at most gives judges specific authority to redress violations of specific provisions,” Judge Wilkinson writes in his book Cosmic Constitutional Theory. But even when doing so, “courts must exercise great caution before injecting themselves into the vortex of varied political questions,” for “[i]t is often far preferable to allow the political institutions under our Constitution to struggle among themselves, with each bringing to bear the respective arsenal of powers the Framers accorded them.” …

First Amendment Imbalance: Kennedy V. Bremerton School District, Steven K. Green

Notre Dame Law Review Reflection

This Essay seeks to unpack the competing legal claims presented by a public-school employee engaging in religious expression in conjunction with their work duties and in the presence of students. The competing First Amendment issues are several: nonestablishment, free exercise, free speech (including the government-employee speech doctrine), and parental expressive rights. These various issues came to a head in 2022 in Kennedy v. Bremerton School District where a Court majority affirmed the right of a high school football coach to engage in demonstrative prayers on the football field at the conclusion of a game. In so holding, the majority prioritized …

Public Employees As A Reflection Of A Religiously Diverse Culture, Steven T. Collis

Notre Dame Law Review Reflection

For decades, scholars and jurists have debated over whether government violates the Establishment Clause when it endorses religion or if coercion is required. In Kennedy v. Bremerton School District, the Supreme Court put this argument to rest, at least as to public employees. It grounded its decision in some form of originalism. While that will be sufficient to satisfy some readers, others will want to be assured of the wisdom of the rule originalism demands. This Essay argues that a coercion test for the private religious exercise of public employees is appropriate for a pluralistic society.

It offers four …

Thoughts On The Architecture Of Freedom Of Religion And Freedom Of Speech, Perry Dane

Notre Dame Law Review Reflection

This symposium was convened to explore the rights of businesses and employees to invoke freedom of religion or freedom of expression to resist certain forms of state regulation. The most immediate occasions for that discussion, at least for my purposes, are cases such as 303 Creative LLC v. Elenis, in which the Supreme Court upheld the right of a website designer to refuse to design a wedding website for a same-sex couple. These sorts of cases, which pit the religious or expressive rights of conscientious believers against the equality rights of others, have proliferated in recent years.

I have …

Ordinary Conscience And Pretend Offenses: Protecting Those Left Out Of Title Vii After Groff, Robin Fretwell Wilson, Michael J. Petersen

Notre Dame Law Review Reflection

Part I reviews America’s foundational commitment to fairness and transparency by government, as well as the deep respect the Founders believed should be accorded to conscience specifically.

Part II applauds the unanimous decision in Groff to walk back the Supreme Court’s grievous error in Trans World Airlines, Inc. v. Hardison. We canvas illustrative cases pre-Groff in which employees, notwithstanding Hardison’s “de minimis” burden standard, proceeded to trial, and instances in which employees did not. We also illustrate how, post-Groff, employees are, rightfully, having an easier time getting to trial.

Even as Groff makes actual Title …

Cleaning The Mess Of 303 Creative V. Elenis, Netta Barak-Corren

Notre Dame Law Review Reflection

No piece of academic writing can clean, by itself, the mess left by 303 Creative v. Elenis. Only the Court can. This symposium piece can only offer analytical clarity on 303 Creative, which can help to understand and organize the mess. I will proceed to do so in three steps. First, I point out the glaring omissions of the Court’s opinion and criticize the dangerous consequences of the Court’s inexplicable approach. Second, I discuss the inconsistency of the dissent and the truth it reveals about the unviability of its sweeping position. Finally, I argue that the only way …