Constitutional Law Commons^™

An Opinion For The Ages, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

December 25, 2013: The Future Of The Secular Outlook, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Future of the Secular Outlook“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Medtronic V. Boston Scientific: Allocating The Burden Of Proof In Declaratory Judgment Actions For Patent Non-Infringement, Brianna Strange

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Medtronic, Inc. v. Boston Scientific Corporation, in which the Court will decide which party bears the burden of proof in a declaratory judgment action for patent non-infringement.

December 21, 2013: Donald Rumsfeld And The Banality Of Evil, Bruce Ledewitz

Hallowed Secularism

Blog post, “Donald Rumsfeld and the Banality of Evil“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

December 15, 2013: Self Actualization Is Sin, Bruce Ledewitz

Hallowed Secularism

Blog post, “Self Actualization Is Sin“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Incompatible Treatment Of Majorities In Election Law And Deliberative Democracy, James A. Gardner

Journal Articles

Deliberative democracy offers a distinctive and appealing conception of political life, but is it one that might be called into service to guide actual reform of existing election law? This possibility seems remote because election law and deliberative democracy are built around different priorities and theoretical premises. A foundational area of disagreement lies in the treatment of majorities. Election law is structured, at both the legislative and constitutional levels, so as to privilege majorities and systematically to magnify their power, whereas deliberative democracy aims at privileging minorities (or at least de-privileging majorities). The main purpose of the election law now …

At Home In The Outer Limits: Daimlerchrysler V. Bauman And The Bounds Of General Personal Jurisdiction, Todd W. Noelle

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, DaimlerChrysler v. Bauman, in which the Court may decide whether maintaining a wholly-owned subsidiary in a forum state can render a foreign parent corporation "essentially at home" in that state, thereby permitting the forum state to exercise general personal jurisdiction over the parent corporation.

December 8, 2013: President Obama In The Sweet Spo, Bruce Ledewitz

Hallowed Secularism

Blog post, “President Obama in the Sweet Spo“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The Evolution Of Statesmanship In The United States: How The Democratization Of Civic Education And Presidential Selection Transformed The American Executive, Andrew Depasquale

Morehead State Theses and Dissertations

A thesis presented to the faculty of the College of Business and Public Affairs at Morehead State University in partial fulfillment of the requirements for the Degree of Master of Arts in Government by Andrew DePasquale on December 6, 2013.

Censorship 101, Sonja R. West

Popular Media

This article looks at censorship in the public school setting.

December 4, 2013: God Again, Or, Am I An Atheist?, Bruce Ledewitz

Hallowed Secularism

Blog post, “God Again, Or, Am I an Atheist?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Atlantic Marine V. J-Crew: The Future Of Forum-Selection Clauses In Federal Courts, Sarah Sheridan

Duke Journal of Constitutional Law & Public Policy Sidebar

This commentary previews an upcoming Supreme Court case, Atlantic Marine v. J-Crew, in which the Court may clarify a circuit split regarding the enforceability of forum-selection clauses by deciding which procedure should govern the enforcement of these clauses and which party carries the burden of proof in these disputes.

Aiding The Enemy Or Promoting Democracy? Defining The Rights Of Journalists And Whistleblowers To Disclose National Security Information, Candice M. Kines

West Virginia Law Review

No abstract provided.

Constitutionally Tailoring Punishment, Richard A. Bierschbach, Stephanos Bibas

Articles

Since the turn of the century, the Supreme Court has regulated noncapital sentencing under the Sixth Amendment in the Apprendi line of cases (requiring jury findings of fact to justify sentence enhancements) as well as under the Eighth Amendment in the Miller and Graham line of cases (forbidding mandatory life imprisonment for juvenile defendants). Although both lines of authority sound in individual rights, in fact they are fundamentally about the structures of criminal justice. These two seemingly disparate doctrines respond to structural imbalances in noncapital sentencing by promoting morally appropriate punishment judgments that are based on individualized input and that …

The Singapore Constitution: A Brief Introduction, Smu Apolitical

Student Publications

This primer seeks to provide an easy guide to those interested in finding out more about the Singapore Constitution. The Constitution provides for the structure of the government and the roles of the judiciary and the parliament. It also secures our fundamental liberties. Hence, some basic knowledge of the Constitution is useful for every citizen.

The primer starts by providing an introduction to the Singapore Constitution and explains the meaning of the concept of separation of powers among the executive, legislature and the judiciary. It also touches on the functions of the three entities, such as how laws are made …

The Illusory Eighth Amendment, John F. Stinneford

UF Law Faculty Publications

Although there is no obvious doctrinal connection between the Supreme Court’s Miranda jurisprudence and its Eighth Amendment excessive punishments jurisprudence, the two are deeply connected at the level of methodology. In both areas, the Supreme Court has been criticized for creating “prophylactic” rules that invalidate government actions because they create a mere risk of constitutional violation. In reality, however, both sets of rules deny constitutional protection to a far greater number of individuals with plausible claims of unconstitutional treatment than they protect.

This dysfunctional combination of over- and underprotection arises from the Supreme Court’s use of implementation rules as a …

On Candor, Free Enterprise Fund, And The Theory Of The Unitary Executive, Michael J. Gerhardt

William & Mary Bill of Rights Journal

No abstract provided.

Calming Unsettled Waters: A Proposal For Navigating The Tenuous Power Divide Between The Federal Courts And The Uspto Under The American Invents Act, William Rose

William & Mary Bill of Rights Journal

No abstract provided.

Reproductive Injustice In The New Millennium, Sybil Shainwald

William & Mary Journal of Race, Gender, and Social Justice

A reexamination of the history of abortion law in the United States is essential to an understanding of recent changes. Part I of this Article will provide a synopsis of the early Anglo-American view of abortion at common law, the early anti-abortion statutes, and the state of abortion during the early twentieth century. Part II will discuss the liberalization of abortion laws, as well as the ways in which the law pertaining to a woman’s right to choose has evolved since 1973. Finally, Part III will analyze the constitutionality of the current wave of restrictions.

High Federalism: Marijuana Legalization And The Limits Of Federal Power To Regulate States, David S. Schwartz

Cardozo Law Review

The conflict between state marijuana legalization and the blanket federal marijuana prohibition of the Controlled Substances Act (CSA) has created a federalism crisis in which the duties of state officials to adhere to state or federal law are unclear. Current federalism doctrine cannot even tell us whether or not a local police officer who encounters a person in state-authorized possession of marijuana must arrest the person and seize the marijuana. The two most clearly applicable federalism doctrines - the Tenth Amendment anti-commmandeering doctrine and federal preemption of state law under the Supremacy Clause - offer only unsatisfactory answers. Anti-commandeering doctrine …