Constitutional Law Commons^™

Intrastate Interventions: The State Executive's Response To Local Nonenforcement, Rebecca D. Maller

Cardozo Law Review

No abstract provided.

Creating A Self-Stabilizing Constitution: The Role Of The Takings Clause, Tonja Jacobi, Sonia Mittal, Barry R. Weingast

Northwestern University Law Review

The U.S. Constitution has survived for over two centuries, despite the Civil War and numerous other crises. In contrast, most national constitutions last less than two decades. Why has the Constitution sustained a largely stable democratic system while so many others have failed? A self-stabilizing constitution creates incentives for all relevant actors to abide by the rules. Drawing on earlier work, we argue that, to be self- stabilizing, a constitution must (1) lower stakes in politics for both ordinary citizens and powerful elite groups; (2) create focal points that facilitate citizen coordination against transgressions by government officials; and (3) enable …

In Praise Of Faction: How Special Interests Benefit Constitutional Order, Jide Nzelibe

Northwestern University Law Review

Political factions are rarely treated as normatively desirable entities in constitutional or international law. On the contrary, they are either regarded as forces that thwart the general welfare or as sources of chronic political instability. Thus, the conventional wisdom often focuses on how to deploy institutional or legal structures that minimize the influence of faction. By contrast, this Essay argues that the institutions of constitutional and international law that are forged by self-interested factions can create significant side benefits for the rest of the society. At bottom, such institutions are likely to be more durable and energetic than those created …

Optimal Abuse Of Power, Adrian Vermeule

Northwestern University Law Review

I will argue that in the administrative state, in contrast to classical constitutional theory, the abuse of government power is not something to be strictly minimized, but rather optimized. An administrative regime will tolerate a predictable level of misrule, even abuse of power, as the inevitable byproduct of attaining other ends that are desirable overall.

There are three principal grounds for this claim. First, the architects of the modern administrative state were not only worried about misrule by governmental officials. They were equally worried about “private” misrule—misrule effected through the self-interested or self-serving behavior of economic actors wielding and abusing …

The Politics Of The Takings Clauses, Mila Versteeg

Northwestern University Law Review

A long-standing consensus exists that the arbitrary or excessive expropriation of private property by a country hurts its economic growth. Although constitutions can play an important role in protecting private property, remarkably little is known about how they actually restrict the power of eminent domain and whether such restrictions are associated with reduced de facto expropriation risks. This Essay fills that gap by presenting original data on the procedural and substantive protections in constitutional takings clauses from 1946 to 2013. Its main finding is that no observable relationship exists between de jure constitutional restrictions on the power of eminent domain …

The Intratextual Independent “Legislature” And The Elections Clause, Michael T. Morley

Northwestern University Law Review

Many states have delegated substantial authority to regulate federal elections to entities other than their institutional legislatures, such as independent redistricting commissions empowered to determine the boundaries of congressional districts. Article I’s Elections Clause and Article II’s Presidential Electors Clause, however, confer authority to regulate federal elections specifically upon State “legislatures,” rather than granting it to States as a whole. An intratextual analysis of the Constitution reveals that the term “legislature” is best understood as referring solely to the entity within each state comprised of representatives that has the general authority to pass laws. Thus, state constitutional provisions or laws …

Undocumented No More: The Power Of State Citizenship, Peter L. Markowitz

Articles

An estimated eleven million undocumented immigrants live in the United States. These individuals have become integral members of American families and vital components of the American economy. Yet repeated efforts to meaningfully reform the nation's immigration laws--to more fully integrate these individuals into American society-have failed to garner sufficient political support in Congress. The prospects for significant congressional action on immigration reform remain bleak into the foreseeable future as our nation's debate on immigration has been warped by powerful, but largely inaccurate, themes of criminality, lax border enforcement, and national security threats. These themes have been crafted and cemented in …

Protecting Sacred Ground: The San Manuel Ruling And Implications For Indian Cultural Resource Preservation, Gray O'Dwyer

University of the District of Columbia Law Review

Six hundred years ago, all land in America was Indian land.1 Then,"[Europe] conducted some of her adventurous sons into this western world.., and discovery gave title... [which] could be consummated by possession."2 This "doctrine of discovery," agreed upon between colonial powers, essentially granted title to anyone who could occupy American soil. Europeans quickly scrambled to negotiate peace treaties with native tribes so that they could install settlers and thereby claim territory. The inherent problems with these treaties were numerous; beyond conflicting interests,3 outright fraud,4 and language barriers, the terms of transfer were inherently invalid because the government that was taking …

A Half-Baked Law: How The Supreme Court's Decision In Koontz V. St. Johns River Water Management District Misses A Key Ingredient To Fifth Amendment Protection, Garrett W. Messerly

BYU Law Review

No abstract provided.

Pengaruh Konfigurasi Politik Terhadap Produk Hukum Pada Masa Pemerintahan Soeharto Di Indonesia, Ryan Muthiara Wasti

Jurnal Hukum & Pembangunan

Soeharto government becomes an interesting theme for nearly every research because of the uniqueness of the rule known as the authoritarian nature. However, the uniqueness is only studied until the result of the authoritarian who has raised the swelter of almost all the people and eventually led to the cessation of Soeharto as the head of the State Indonesia. Yet seen from the eyes of the law, the political transition in the future not only of political influence, but also legally so as to distinguish between authoritarian rule and democratic governance. This study will address these problems are divided into …

March 29, 2015: How To Think About Religious Exemptions, Bruce Ledewitz

Hallowed Secularism

Blog post, “How to Think about Religious Exemptions“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Summary Of Pitmon V. State, 131 Nev. Adv. Op. 16 (Mar. 26, 2015), Aleem Dhalla

Nevada Supreme Court Summaries

The Court determined that (1) NRS 176.035(1) was not unconstitutionally vague, (2) is its grant of discretion to district court judges was not unconstitutionally arbitrary, and (3) Nevada’s sentencing scheme does provide meaning appellate review of district court sentencing.

March 25, 2015: Holding Back The Chinese Tide, Bruce Ledewitz

Hallowed Secularism

Blog post, “Holding Back the Chinese Tide“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

March 21, 2015: The Problem For Post-Netanyahu American Judaism, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Problem for Post-Netanyahu American Judaism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

March 17, 2015: Sustainable Political Thinking, Bruce Ledewitz

Hallowed Secularism

Blog post, “ Sustainable Political Thinking“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Leak Prosecutions And The First Amendment: New Developments And A Closer Look At The Feasibility Of Protecting Leakers, Heidi Kitrosser

William & Mary Law Review

This Article revisits the free speech protections that leakers are due in light of recent commentaries and events. Among other things, the Article critiques arguments to the effect that the Obama Administration’s uptick in leak prosecutions does not threaten the system of free speech because plenty of classified information still makes its way into newspapers and the absolute number of leaker prosecutions remains very low. Such positions overlook the slanted impact that prosecutions and investigations are likely to have—and reportedly have had—on the speech marketplace. The Article also explains that even though the increase in prosecutions and other recent developments, …

The First Amendment’S Public Forum, John D. Inazu

William & Mary Law Review

The quintessential city park symbolizes a core feature of a democratic polity: the freedom of all citizens to express their views in public spaces free from the constraints of government imposed orthodoxy. The city park finds an unlikely cousin in the federal tax code’s recognition of deductions for contributions made to charitable, religious, and educational organizations. Together, these three categories of tax-exempt organizations encompass a vast array of groups in civil society.

The city park is a traditional public forum under First Amendment doctrine, and the charitable, educational, and religious deductions under the federal tax code function much like a …

National Security Information Disclosures And The Role Of Intent, Mary-Rose Papandrea

William & Mary Law Review

In the public discourse, the perceived intent of those who disclose national security information without authorization plays an important role in whether they are labeled as heroes or traitors. Should it matter whether Chelsea (formerly Bradley) Manning leaked government information to WikiLeaks knowing that our enemies might benefit from the information? Is it relevant that Edward Snowden believed—or that a reasonable person would believe—that the topsecret government surveillance programs he revealed were illegal, or that the public value in knowing about these programs outweighed any risk of harm to national security? This Article examines whether intent—and what kind of intent— …

Internet Exceptionalism: An Overview From General Constitutional Law, Mark Tushnet

William & Mary Law Review

This Article considers First Amendment Internet exceptionalism. I use that term in what I think is a reasonably standard way to refer to the question of whether the technological characteristics of the Internet (and, more generally, twenty-first-century information technologies) justify treating regulation of information dissemination through the Internet differently from regulation of such dissemination through nineteenth- and twentieth-century media, such as print, radio, and television. My aim here is not to provide an answer to that question, but to identify several subquestions whose answers must be part of the larger answer.

New Problems For Subsidized Speech, Joseph Blocher

William & Mary Law Review

The constitutionality of conditional offers from the government is a transsubstantive issue with broad and growing practical implications, but it has always been a particular problem for free speech. Recent developments suggest at least three new approaches to the problem, but no easy solutions to it. The first approach would permit conditions that define the limits of the government spending program, while forbidding conditions that leverage funding so as to regulate speech outside the contours of the program. This is an appealing distinction, but runs into some of the same challenges as public forum analysis. The second approach would treat …