Constitutional Law Commons^™

Criminal Forfeiture And The Sixth Amendment: The Role Of The Jury At Common Law, Richard E. Finneran, Steven K. Luther

Cardozo Law Review

Throughout its recent jurisprudence after Apprendi v. New Jersey, the Supreme Court has emphasized that its analysis of the Sixth Amendment jury trial right centers upon the historical role of the jury at common law. Just last year, in Southern Union Co. v. United States, the Court extended the Sixth Amendment jury trial right to criminal fines after concluding that the jury's verdict determined the maximum fine that could be imposed at common law. The Court remained silent, however, with regard to another financial penalty commonly applied in the federal system: criminal forfeitures. Given that the Supreme Court …

The Constitutionality Of Using Eminent Domain To Condemn Underwater Mortgage Loans, Katharine Roller

Michigan Law Review

One of the most visible and devastating components of the financial crisis that began in 2007 and 2008 has been a nationwide foreclosure crisis. In the wake of ultimately ineffective attempts at federal policy intervention to address the foreclosure crisis, a private firm has proposed that counties and municipalities use their power of eminent domain to seize “underwater” mortgage loans—-mortgage loans in which the debt exceeds the value of the underlying property—-from the private securitization trusts that currently hold them. Having condemned the mortgage loans, the counties and municipalities would reduce the debt to a level below the value of …

Constitutional Rights And Political Power Of Corporations After Citizens United: The Decline Of Citizens And The Rise Of Foreign Corporations And Super Pacs, Tim Bakken

Cardozo Public Law, Policy & Ethics Journal

No abstract provided.

The Non-Redelegation Doctrine, F. Andrew Hesisck, Carissa Byrne Hessick

William & Mary Law Review

In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission. One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges. District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.

This Article argues that, when faced with a decision that implicates an unambiguous delegation, the courts should not redelegate unless authorized by Congress …

Statutory Interpretation As Constestatory Democracy, Glen Staszewski

William & Mary Law Review

This Article provides a novel solution to the countermajoritarian difficulty in statutory interpretation by applying recent insights from civic republican theory to the adjudication of statutory disputes in the modern regulatory state. From a republican perspective, freedom consists of the absence of the potential for arbitrary domination, and democracy should therefore include both electoral and contestatory dimensions. The Article argues that statutory interpretation in the modern regulatory state is best understood as a mechanism of contestatory democracy. It develops this conception of statutory interpretation by considering the distinct roles of legislatures, administrative agencies, and courts in making and implementing the …

The Federal Medical Loss Ratio: A Permissible Federal Regulation Or An Encroachment On State Power?, Meghan S. Stubblebine

William & Mary Law Review

No abstract provided.

Discrimination In Baby Making: The Unconstitutional Treatment Of Prospective Parents Through Surrogacy, Andrea B. Carroll

Journal Articles

The article focuses on limited use of reproductive technologies in defense of discriminating against unmarried intended parents. It emphasizes to eliminate unconstitutional treatment of prospective parents involved in the surrogacy process. It informs that State laws related to surrogacy create discrimination which is based on marital status. It suggests that surrogacy should be included as a permissible reproductive avenue for right to married and unmarried intended parents in the U.S.

Democracy And The Right To Vote: Rethinking Democratic Rights Under The Charter, Yasmin Dawood

Osgoode Hall Law Journal

This article addresses the Supreme Court of Canada’s theory of democracy and the right to vote. After setting forth the Court’s general approach to democracy, I develop a new conceptual framework for the Court’s approach to democratic rights. First, I argue that the Court has adopted a “bundle of democratic rights” approach to the right to vote. By this I mean that the Court has interpreted the right to vote as consisting of multiple democratic rights, each of which is concerned with a particular facet of democratic governance. Second, I claim that the democratic rights recognized by the Court are …

Roe V. Wade At 40, Gerard V. Bradley

Journal Articles

Under the leadership of Chief Justice Warren Burger, who joined it in 1969, the Supreme Court departed from the course taken during the 16-year tenure of his predecessor, Earl Warren. The Burger Court rolled back precedents in criminal procedure and obscenity, while stopping the drive to universalize welfare rights and equalize public schooling expenditures. Roe v. Wade (1973), on the other hand, extended the Warren Court's deepest commitments: sexual liberation, obviously; equality, with respect to both race and class; and even church-state separation, insofar as the Roe Justices identified opposition to abortion with Catholic dogma. These more or less "progressive" …

New York Times V. U.S.: Implications And Relevance In The 21st Century, Maria E. Lombardi

Student Publications

In 1971, the New York Times released the first installment in a series later referred to as the Pentagon Papers that would eventually have significant political, social, and historical impacts that are felt even in the 21st Century. Following the first release, President Nixon’s administration sought an injunction against the publication of the remaining contents of the classified study, ultimately becoming an extensive legal process that culminated in the Supreme Court. In a per curiam opinion, the Court ruled that in accordance with Organization for a Better Austin v. Keefe and Near v. Minnesota that the federal government did not …

Do Bills Of Rights Matter?: An Examination Of Court Change, Judicial Ideology, And The Support Structure For Rights In Canada, Donald R. Songer, Susan W. Johnson, Jennifer Barnes Bowie

Osgoode Hall Law Journal

Competing theories regarding the development of a “rights revolution” in Canada have appeared in the judicial and constitutional literature in recent years. On the one hand, scholars argue that the profound effects often attributed to the Charter of Rights and Freedoms are substantially overstated, and conventional analyses have overlooked the more important role of changes in what is called the “support structure” for rights. Others have advanced a competing theory that the Charter created an expansion of civil liberties. We take advantage of an extensive dataset on the decisions of the Supreme Court of Canada to provide a more systematic …

Review Of Prigg V. Pennsylvania: Slavery, The Supreme Court, And The Ambivalent Constitution, Susan David Demaine

Articles by Maurer Faculty

In 1842, the Supreme Court issued a landmark decision in Prigg v. Pennsylvania, resolving a dispute about fugitive slave rendition that had raged between the states for decades. H. Robert Baker’s analysis of the decision and the events that led up to it is the first book-length work to investigate Prigg and its place in American history. Baker traces the development of fugitive slave laws and recounts the heart-wrenching story that lies behind Prigg to shed light on the Supreme Court’s decision and the gradual clarification of American federalism.

Preemption And Textualism, Daniel J. Meltzer

Michigan Law Review

In the critically important area of preemption, the Supreme Court’s approach to statutory interpretation differs from the approach it follows elsewhere. Whether in politically salient matters, like challenges to Arizona’s immigration laws, or in more conventional cases, such as those in which state tort liability overlaps with federal regulation, the Court’s preemption decisions reflect a highly purposive approach to reading statutes, most notably through the application of “obstacle preemption” analysis. Recently, however, Justice Thomas has objected to the Court’s failure in preemption cases to respect its more textualist approach to issues of statutory interpretation, and he has urged that obstacle …

We Are Never Ever Getting Back Together: Domestic Violence Victims, Defendants, And Due Process, Jessica Miles

Cardozo Law Review

No abstract provided.

The Law And Financial Transparency In Churches: Reconsidering The Form 990 Exemption, John Montague

Cardozo Law Review

Most tax-exempt organizations are required to file the IRS Form 990, an information return that is open to the public. The Form 990 is used by watchdogs and donors to learn detailed financial information about charities. However, churches are exempt from filing the Form 990 and need not disclose any financial information to the IRS, the public, or their donors. In December 2012, the Evangelical Council for Financial Accountability recommended to Senator Charles Grassley that Congress should preserve the exemption, despite recent financial scandals at churches.

Examining the legislative history, this Article argues that the primary function of the information …

September 27, 2013: What Is The Meaning Of The Fall/Original Sin?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Is the Meaning of the Fall/Original Sin?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

September 22, 2013: The Believer Who Wills Not To Believe, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Believer Who Wills Not To Believe“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

September 18, 2013: The Historical Record Suggests That Jesus Was Unique, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Historical Record Suggests That Jesus Was Unique“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Who Should Be The ‘Decider’ On Keeping Our Secrets?, Stephen Henderson

Other Faculty Publications

An invited essay for Constitution Day, also available here: http://blogs.law.widener.edu/constitution2013/2013-essay-authors/stephen-henderson/It addresses the national security surveillance disclosed by Edward Snowden and others, and asks whether a fundamental shift would be prudent in the era of Big Data.

Adam V. Knesset (Summary), Edna Arbel, Asher Grunis, Miriam Naor, Salim Joubran, Esther Hayut, Yoram Danziger, Uzi Vogelman, Isaac Amit

Translated Opinions

In a judgment given on 16 September 2013, an extended panel of nine Justices of the Supreme Court of Israel decided the question of the constitutionality of the arrangement enacted by the Knesset in 2012, in amendment no. 3 of the Prevention of Infiltration Law (Offenses and Adjudication), 5714-1954, which allows holding infiltrators in custody for a period of three years.

All nine Justices of the panel held, unanimously, that the arrangement is unconstitutional because it disproportionately limits the constitutional right to liberty determined in Basic Law: Human Dignity and Liberty.

Regarding the scope of constitutional relief the court held, …