Constitutional Law Commons^™

Alumni Association Of The Arab Orthodox School In Haifa V. Minister Of Finance, Miriam Naor, Dorit Beinisch, Eliezer Rivlin

Translated Opinions

Facts: The Budget Elements Law was amended in 2011 to include a new section 3b, which provided that if an entity that receives support or budgeting from the government incurs an expense that falls within any of several listed categories, the Minister of Finance can reduce the entity’s budget or support by an amount no greater than three times the size of the said expense. Of the categories listed, the petitioners focused their challenge on two of them: the first, sub-section 3b(b)(1), referring to an expense which was “in essence” a negation of the values of the State of Israel …

The Role Of Charity In A Federal System, Brian Galle

William & Mary Law Review

This Article critiques the prevailing justification for subsidies for the charitable sector and suggests a new alternative. Existing rationales are based on an economic model that assumes a single government whose decisions are guided by a single median voter. I argue that this theory is unpersuasive when translated to federal systems, such as the United States, in which there may instead be thousands of competing local governments.

I then attempt to construct a theory of the charitable sector that takes account of interactions between charity, local government, and national government. In this revised account, charity is most important when federalism …

Understanding Confidentiality: Program Effectiveness And The Freedom Of Information Act Exemption 4, Samuel L. Zimmerman

William & Mary Law Review

No abstract provided.

Brief Of Committee Of Law Professors And Historians As Amici Curaie, In Support Of Plaintiffs-Appellant, Coalition To Defend Affirmative Action V. Brown, 674 F.3d 1128 (2012) (No. 11-15100, 11-15241), Wilson Huhn

Con Law Center Amicus Briefs

The purpose of this brief is to place the dispute over affirmative action in California’s public universities within a broader historical context.  State constitutional amendments such as Proposition 209 are not uncommon in American history.  In reaction to calls for reform from a minority group – whether it be the end of slavery, the enactment of non-discrimination laws, or the adoption of voluntary programs of racial integration – the majority has often responded by attempting to prevent the debate from occurring, by denying members of the minority group the opportunity to participate in the political process, or by making it …

January 12, 2012: The New Foundations Of The Ministerial Exception, Bruce Ledewitz

Hallowed Secularism

Blog post, “The New Foundations of the Ministerial Exception“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Gal-On V. Attorney General (Summary), Eliezer Rivlin, Asher Grunis, Miriam Naor, Elyakim Rubinstein, Hanan Melcer, Neal Hendel, Dorit Beinisch, Edmond E. Levy, Edna Arbel, Salim Joubran, Esther Hayut

Translated Opinions

By a majority of six justices out of a panel of eleven, the High Court of Justice rejected petitions challenging the constitutionality of the Citizenship and Entry to Israel Act. The majority justices acknowledged there was a constitutional right for family life, which derives from the right to human dignity, but held that the scope of the right does not extend to realizing the right specifically in Israel. It was also held that to the extent that constitutional rights have been violated, including the right to equality, it is a violation that passes muster under the test of the Limitations …

Failed Exactions, Mark Fenster

UF Law Faculty Publications

This symposium essay considers the doctrinal quandary created by 'failed exactions' - regulatory conditions on property development that government agencies contemplate but that are never finalized or enforced, usually because the property owner rejects them. A narrow but conceptually challenging issue to the relationship between the unconstitutional conditions doctrine and regulatory takings law, failed exactions could prove profoundly unsettling to current land use practices. A decade ago, the issue of whether failed exactions deserve heightened scrutiny prompted Justice Scalia to issue a dissent from a denial of petition for certiorari in which he stated, somewhat tentatively, that an extortionate demand …

January 10, 2012: The Ministerial Exception Must Be Put On New Foundations, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Ministerial Exception Must be Put on New Foundations“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Obamacare And The 'What Is A Tax?' Issue – Part I, Steve R. Johnson

Scholarly Publications

One of the hardiest perennials in the garden of state and local tax issues is the question whether particular revenue measures should be classified as taxes or some other type of exaction. The issue has been dispositive in numerous state and local tax cases and, befitting that significance, has been the topic of many reports in this journal.

Given the frequency of the decisions and commentary, authorities cited on the issue constantly evolve. State courts, omnivorous in their search for precedents and rationales, often cite federal cases. Recognizing this, a recent article in State Tax Notes examined decisions of the …

Minneci V. Pollard And The Uphill Climb To Bivens Relief, Elliot J. Weingarten

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

On Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit, Brief For Private Petitioners On Severability, National Federation Of Independent Business, Et Al., V. Kathleen Sebelius, Et Al., State Of Florida, Et Al., V. Department Of Health And Human Services, Et Al., Nos. 11-393, 11-400 (U.S. Jan. 6, 2012), Randy E. Barnett

U.S. Supreme Court Briefs

No abstract provided.

January 6, 2012: I Have A Soft Spot For Rick Santorum, Bruce Ledewitz

Hallowed Secularism

Blog post, “ I Have a Soft Spot for Rick Santorum“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

January 3, 2012: Jacques Berlinerblau’S Anti-Religion List, Bruce Ledewitz

Hallowed Secularism

Blog post, “Jacques Berlinerblau’s anti-Religion List“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

The End Of "One Hand": The Egyptian Constitutional Declaration And The Rift Between The "People" And The Supreme Council Of The Armed Forces, Kristen A. Stilt

Faculty Working Papers

By some point in the fall of 2011, Egyptians in large numbers no longer viewed the Supreme Council of the Armed Forces (SCAF) as the guardian of the revolution and even considered it the revolution's antagonist. "The army and the people are one" was a common slogan in the early days following Mubarak's ouster on February 11, 2011, but the situation had changed dramatically by the landmark date of October 9, when the military used violence against its own citizens, killing approximately twenty-five Christians at a protest outside Maspero, the headquarters of the Egyptian state television. Violence against protestors continued …

A Tort Statute, With Aliens And Pirates, Eugene Kontorovich

Faculty Working Papers

The pirates of the Caribbean are back. Not in another fantastical film but in the litigation over the reach of the Alien Tort Statute (ATS). For the first time since they dealt with the legal issues raised by a wave of maritime predation in the Caribbean in the early nineteenth century, Supreme Court justices are seriously discussing piracy. This crime has emerged as the test case for evaluating the major controversies about the reach of the statute -- namely, extraterritorial application and the existence of corporate liability. At oral argument in Kiobel v. Royal Dutch Shell, justices of all persuasions …

The Structural Constitutional Principle Of Republican Legitimacy, Mark D. Rosen

All Faculty Scholarship

Representative democracy does not spontaneously occur by citizens gathering to choose laws. Instead, republicanism takes place within an extensive legal framework that determines who gets to vote, how campaigns are conducted, what conditions must be met for representatives to make valid law, and many other things. Many of the “rules-of-the-road” that operationalize republicanism have been subject to constitutional challenges in recent decades. For example, lawsuits have been brought against “partisan gerrymandering” (which has led to most congressional districts not being party-competitive, but instead being safely Republican or Democratic) and against onerous voter identification requirements (which reduce the voting rates of …

Prosecution Appeals Of Court-Ordered Midtrial Acquittals: Permissible Under The Double Jeopardy Clause?, David S. Rudstein

All Faculty Scholarship

This article considers whether a statute or rule of court allowing the prosecution to appeal a directed verdict of not guilty, or its equivalent, would be constitutional under the Double Jeopardy Clause.

Martin Welker: Ohio's Unsung Hero, Aaron Boothby

The 39th Congress Project

No abstract provided.

Stare Decisis And Foreign Affairs, Michael P. Van Alstine

Faculty Scholarship

This article examines whether the jurisprudential and institutional premises of the doctrine of stare decisis retain their validity in the field of foreign affairs. The proper role of the judicial branch in foreign affairs has provoked substantial scholarly debates—historical, institutional, normative—since the very founding of the republic. Precisely because of the sensitivity of the subject, the Supreme Court itself has both cautioned about the judicial branch’s comparative lack of expertise in the field and recognized a web of deference doctrines designed to protect against improvident judicial action. Notwithstanding all of this, however, neither the Supreme Court nor any scholar has …

Defining Corruption And Constitutionalizing Democracy, Deborah Hellman

Faculty Scholarship

The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on giving and spending money in connection with elections only when they serve to avoid corruption or its appearance. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides have missed the more …