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Beyond The Courts, Beyond The State: Reflections On Caldwell's "Horizontal Rights And Chinese Constitutionalism", Victor V. Ramraj 2012 Chicago-Kent College of Law

Beyond The Courts, Beyond The State: Reflections On Caldwell's "Horizontal Rights And Chinese Constitutionalism", Victor V. Ramraj

Chicago-Kent Law Review

This article provides a critical response to Ernest Caldwell's article, Horizontal Rights and Chinese Constitutionalism: Judicialization through Labor Disputes. According to Caldwell, those looking for an emerging constitutional culture in China should be looking not in the higher courts (as the American paradigm of constitutional law suggests), but in the lower courts that settle day-to-day disputes. Moreover, the constitutional discourse in those lower courts is not about limiting state power, but about the need for "horizontal" protections of citizens—specifically laborers—from their powerful employers in furtherance of constitutional values. This article offers three responses to Caldwell's thesis. First, while acknowledging and …


From Constitutional Listening To Moral Listening, Roy Tseng 2012 Chicago-Kent College of Law

From Constitutional Listening To Moral Listening, Roy Tseng

Chicago-Kent Law Review

In order to provide comments on Michael Dowdle's account of "Constitutional Listening," this paper aims to establish three counter-arguments. First of all, in contrast to Dowdle's particularly narrow understanding of liberalism, I argue that to evaluate the moral import of liberalism properly, we need to draw attention to the diversities of liberalism. According to what I will call "historicist liberalism," for example, in understanding other cultures we should try to show sensitivities toward alien political systems and moral values. Second of all, although I appreciate Dowdle's effort to avoid the misinterpretation of non-Western constitutional discourse, I do not agree with …


From Constitutional Listening To Constitutional Learning, Leigh Jenco 2012 Chicago-Kent College of Law

From Constitutional Listening To Constitutional Learning, Leigh Jenco

Chicago-Kent Law Review

In this article, I point out some limitations of Michael Dowdle's "listening" model, particularly its basis in the "principle of charity." I try to show that listening, as well as the principle of charity, are inadvertently passive and one-sided exercises that seem to have little similarity to the deeply self-transformative "learning" Dowdle urges us to undertake. I go on to suggest other ways of accomplishing the goals Dowdle sets for this project. Specifically, I develop the "self-reflexive approach" to think about how we might change ourselves—our conversations, our terms, our concerns—in addition to, and in the process of, learning from …


Discrimination In The Marcellus Shale: The Dormant Commerce Clause And Hydraulic Fracturing Waste Disposal, Eric Michel 2012 Chicago-Kent College of Law

Discrimination In The Marcellus Shale: The Dormant Commerce Clause And Hydraulic Fracturing Waste Disposal, Eric Michel

Chicago-Kent Law Review

The environmentally controversial process of hydraulic fracturing (commonly referred to as "fracking") has led to a recent explosion in the supply and sale of natural gas in the United States. However, every fracking operation creates a sizable amount of toxic wastewater that requires disposal, and drillers in Pennsylvania have increasingly been shipping their waste across the border to Ohio because of Pennsylvania's inadequate internal disposal options. In response, Ohio has passed legislation that taxes out-of-state fracking waste at a greater rate than waste derived from natural gas drilling within its borders. This Note examines whether Ohio's taxing scheme violates the …


Constitutionalism: East Asian Antecedents, Tom Ginsburg 2012 Chicago-Kent College of Law

Constitutionalism: East Asian Antecedents, Tom Ginsburg

Chicago-Kent Law Review

To what degree can traditional Asian political and legal institutions be seen as embodying constitutionalist values? This question has risen to the fore in recent decades as part of a new attention to constitutionalism around the world, as well as the decline in orientalist perceptions of Asia as a region of oppressive legal traditions. This article juxtaposes East Asian analogues or antecedents of constitutionalism with a particular set of recent theoretical understandings of the concept of constitutionalism. After conducting a historical review of political and legal institutions in China, Japan and Korea, the article argues that we can indeed speak …


Inside Voices: Protecting The Student-Critic In Public Schools, Josie F. Brown 2012 University of South Carolina - Columbia

Inside Voices: Protecting The Student-Critic In Public Schools, Josie F. Brown

Faculty Publications

First Amendment doctrine acknowledges the constructive potential of citizens’ criticism of public officials and governmental policies by offering such speech vigilant protection. However, when students speak out about perceived injustice or dysfunction in their public schools, teachers and administrators too often react by squelching and even punishing student-critics. To counteract school officials’ reflexively repressive responses to student protest and petition activities, this Article explains why the faithful performance of public schools’ responsibility to prepare students for constitutional citizenship demands the adoption of a more receptive and respectful attitude toward student dissent. After documenting how both educators and courts have mistakenly …


Constitutional Listening, Michael W. Dowdle 2012 Chicago-Kent College of Law

Constitutional Listening, Michael W. Dowdle

Chicago-Kent Law Review

This article explores a particular methodology of comparative constitutional analysis that it calls "constitutional listening." Derived from the interpretive "principle of charity," constitutional listening involves interpreting constitutional discourse of other polities in their best light. This includes not simply polities whose constitutional structures and values resemble our own, but perhaps even more importantly, polities and constitutional systems whose values and structures seem alien to us. The value of this methodology, it is argued, lies in its ability to expand our understanding of the diversity of experiences that have gone into the human project of constitutionalism, and in the diversity of …


The Unity Of Constitutional Values: A Comment On Ernest Caldwell's "Horizontal Rights And Chinese Constitutionalism: Judicialization Through Labor Disputes", Arif A. Jamal 2012 Chicago-Kent College of Law

The Unity Of Constitutional Values: A Comment On Ernest Caldwell's "Horizontal Rights And Chinese Constitutionalism: Judicialization Through Labor Disputes", Arif A. Jamal

Chicago-Kent Law Review

Ernest Caldwell wants to defend Chinese constitutionalism from criticism, mainly from Western constitutional scholars or scholars who hold up Western constitutional patterns as an ideal. Caldwell makes both a 'comparative' claim and a 'value' claim. The comparative claim is that Chinese constitutional law must be understood on its own terms and that on these terms it does protect rights, even if it does not do so in the same way as Western constitutional law. The value claim is that the procedures in China's legal system satisfy value concerns captured in the term 'constitutionalism' because they show how that system respects …


Talking Chalk: Defacing The First Amendmen In The Public Forum, Marie A. Failinger 2012 Hamline University School of Law

Talking Chalk: Defacing The First Amendmen In The Public Forum, Marie A. Failinger

West Virginia Law Review

No abstract provided.


The Transformation Of Immigration Federalism, Jennifer M. Chacón 2012 William & Mary Law School

The Transformation Of Immigration Federalism, Jennifer M. Chacón

William & Mary Bill of Rights Journal

No abstract provided.


“Abandoned… Without A Word Of Warning”: Perspectives On Maples V. Thomas, Deborah A. DeMott 2012 Duke Law School

“Abandoned… Without A Word Of Warning”: Perspectives On Maples V. Thomas, Deborah A. Demott

Duke Journal of Constitutional Law & Public Policy

No abstract provided.


Clarity At Sentencing Deferred: How Dorsey V. United States Could Have Reformed Federal Sentencing, Jonathan Ross 2012 Duke Law

Clarity At Sentencing Deferred: How Dorsey V. United States Could Have Reformed Federal Sentencing, Jonathan Ross

Duke Journal of Constitutional Law & Public Policy

No abstract provided.


On The Border Patrol And Its Use Of Illegal Roving Patrol Stops., David Anton Armendariz 2012 St. Mary's University

On The Border Patrol And Its Use Of Illegal Roving Patrol Stops., David Anton Armendariz

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.


Religious Treatment Exemption Statutes: Betrayest Thou Me With A Statute., Shirley Darby Howell 2012 St. Mary's University

Religious Treatment Exemption Statutes: Betrayest Thou Me With A Statute., Shirley Darby Howell

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract Forthcoming.


Making The Most Of United States V. Jones In A Surveillance Society: A Statutory Implementation Of Mosaic Theory, Christopher Slobogin 2012 Duke Law

Making The Most Of United States V. Jones In A Surveillance Society: A Statutory Implementation Of Mosaic Theory, Christopher Slobogin

Duke Journal of Constitutional Law & Public Policy

No abstract provided.


Getting Juvenile Life Without Parole “Right” After Miller V. Alabama, Doriane L. Coleman, James E. Coleman Jr. 2012 Duke Law School

Getting Juvenile Life Without Parole “Right” After Miller V. Alabama, Doriane L. Coleman, James E. Coleman Jr.

Duke Journal of Constitutional Law & Public Policy

No abstract provided.


Can The States Keep Secrets From The Federal Government?, Robert A. Mikos 2012 Vanderbilt University Law School

Can The States Keep Secrets From The Federal Government?, Robert A. Mikos

Vanderbilt Law School Faculty Publications

States amass troves of information detailing the regulated activities of their citizens, including activities that violate federal law. Not surprisingly, the federal government is keenly interested in this information. It has ordered reluctant state officials to turn over their confidential files concerning medical marijuana, juvenile criminal history, immigration status, tax payments, and employment discrimination, among many other matters, to help enforce federal laws against private citizens. Many states have objected to these demands, citing opposition to federal policies and concerns about the costs of breaching confidences, but the lower courts have uniformly upheld the federal government’s power to commandeer information …


Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews 2012 Brigham Young University Law School

Originalism And Loving V. Virginia, Steven G. Calabresi, Andrea Matthews

BYU Law Review

No abstract provided.


Repudiating The Narrow Rule In Capital Sentencing, Scott W. Howe 2012 Brigham Young University Law School

Repudiating The Narrow Rule In Capital Sentencing, Scott W. Howe

BYU Law Review

This Article proposes a modest reform of Eighth Amendment law governing capital sentencing to spur major reform in the understanding of the function of the doctrine. The Article urges the Supreme Court to renounce a largely empty mandate known as the “narrowing” rule and the rhetoric of equality that has accompanied it. By doing so, the Court could speak more truthfully about the important but more limited function that its capital-sentencing doctrine actually pursues, which is to ensure that no person receives the death penalty who does not deserve it. The Court could also speak more candidly than it has …


Why The National Popular Vote Compact Is Unconstitutional, Norman R. Williams 2012 Brigham Young University Law School

Why The National Popular Vote Compact Is Unconstitutional, Norman R. Williams

BYU Law Review

Unable to secure passage of a federal constitutional amendment abolishing the Electoral College, several opponents of the Electoral College have sought to establish the direct, popular election of the President via an interstate compact according to which individual signatory states agree to appoint their presidential electors in accordance with the nationwide popular vote. Ostensibly designed to prevent elections, such as the one in 2000, in which the Electoral College “misfired” and chose the candidate who received fewer popular votes, the National Popular Vote Compact has been adopted by several states, including California. In this Article, I argue that the National …


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