Statutory Interpretation In The Roberts Court's First Era: An Empirical And Doctrinal Analysis,
2010
St. John's University School of Law
Statutory Interpretation In The Roberts Court's First Era: An Empirical And Doctrinal Analysis, Anita S. Krishnakumar
Faculty Publications
This Article examines the Roberts Court's statutory cases from its 2005-2008 Terms, beginning with cases decided after January 31, 2006, when Justice Alito joined the Court, and concluding with cases decided on June 29, 2009, when Justice Souter retired. The Article's approach is both empirical and doctrinal, in that it (1) presents descriptive statistics illustrating the Court's and individual Justices' rates of reliance on fourteen different tools of statutory construction, and (2) engages in doctrinal analysis of the Court's statutory cases, highlighting discernable patterns in the individual Justices' interpretive approaches. The Article makes two significant contributions to the field of …
Rising Seas And Common Law Baselines: A Comment On Regulatory Takings Discourse Concerning Climate Change,
2010
Georgetown University Law Center
Rising Seas And Common Law Baselines: A Comment On Regulatory Takings Discourse Concerning Climate Change, J. Peter Byrne
Georgetown Law Faculty Publications and Other Works
In several recent cases considering claims that regulatory measures addressing rising sea levels violate the Takings Clause, courts have given significant normative weight to traditional common law rules, even when such rules have long been superseded by statutory provisions. This essay argues that giving analytic precedence to such common law baselines lacks justification and can pose serious obstacles to reasonable measures to adapt to climate change.
Territoriality And The First Amendment: Free Speech At - And Beyond - Our Borders,
2010
William & Mary Law School
Territoriality And The First Amendment: Free Speech At - And Beyond - Our Borders, Timothy Zick
Faculty Publications
No abstract provided.
Clashing Visions Of A "Living" Constitution: Of Opportunists And Obligationists,
2010
William & Mary Law School
Clashing Visions Of A "Living" Constitution: Of Opportunists And Obligationists, William W. Van Alstyne
Faculty Publications
No abstract provided.
Summum, The Vocality Of Public Places, And The Public Forum,
2010
William & Mary Law School
Summum, The Vocality Of Public Places, And The Public Forum, Timothy Zick
Faculty Publications
No abstract provided.
Anti-Regulatory Absolutism In The Campaign Arena: Citizens United And The Implied Slippery Slope,
2010
University at Buffalo School of Law
Anti-Regulatory Absolutism In The Campaign Arena: Citizens United And The Implied Slippery Slope, James A. Gardner
Journal Articles
Perhaps the most striking feature of the Supreme Court’s constitutional campaign jurisprudence is its longstanding, profound hostility to virtually any government regulation whatsoever of campaign speech and spending. Such an approach is highly unusual in constitutional law, which typically tolerates at least some level of regulatory intervention even with respect to strongly protected rights. The Court’s behavior in this respect is consistent with – and, I argue, is best understood as – the kind of behavior in which a court engages when it fears a slide down a slippery slope. But what lies at the bottom of the slope? And …
The Dignity Of Voters—A Dissent,
2010
University at Buffalo School of Law
The Dignity Of Voters—A Dissent, James A. Gardner
Journal Articles
Since the waning days of the Burger Court, the federal judiciary has developed a generally well-deserved reputation for hostility to constitutional claims of individual right. In the field of democratic process, however, the Supreme Court has not only affirmed and expanded the applications of previously recognized rights, but has also regularly recognized new individual rights and deployed them with considerable vigor. The latest manifestation of this trend appears to be the emergence of a new species of vote dilution claim that recognizes a constitutionally grounded right against having one’s vote “cancelled out” by fraud or error in the casting and …
Persone Incapaci E Decisioni Di Fine Vita (Con Uno Sguardo Oltreoceano),
2010
Notre Dame Law School
Persone Incapaci E Decisioni Di Fine Vita (Con Uno Sguardo Oltreoceano), O. Carter Snead, Andrea Simoncini
Journal Articles
Title in English: Incapacitated Persons and End of Life Decision Making (with an Across-the-Ocean View) No translation available.
The Scope Of Congress's Thirteenth Amendment Enforcement Power After City Of Boerne V. Flores,
2010
Notre Dame Law School
The Scope Of Congress's Thirteenth Amendment Enforcement Power After City Of Boerne V. Flores, Jennifer Mason Mcaward
Journal Articles
Section Two of the Thirteenth Amendment grants Congress power “to enforce this article by appropriate legislation.” In Jones v. Alfred H. Mayer Co., the Supreme Court held that Section Two permits Congress to define the “badges and incidents of slavery” and pass “all laws necessary and proper” for their abolition. Congress has passed a number of civil rights laws under this understanding of its Section Two power. Several commentators have urged Congress to expansively define the “badges and incidents of slavery” and use Section Two to address everything from racial profiling to discrimination on the basis of gender and sexual …
Originalism, John Marshall, And The Necessary And Proper Clause: Resurrecting The Jurisprudence Of Alexander Addison,
2010
Cleveland State University
Originalism, John Marshall, And The Necessary And Proper Clause: Resurrecting The Jurisprudence Of Alexander Addison, Patrick J. Charles
Cleveland State Law Review
However, to give Marshall full credit for the “choice of means” doctrine is unfair, he was not the first to lay claim to the doctrine when interpreting the Necessary and Proper Clause. Indeed, the philosophical and legal influences of John Marshall have been the speculation of scholarly discourse for some time. For instance, many legal commentators and historians have attributed the influence of Marshall's opinions to being a strong Federalist because many of his opinions echo the Federalist interpretation of the Constitution. However, Marshall's opinions were also influenced by factors that sometimes conflicted with Federalist thought. This Article does not …
Historic And Modern Social Movements For Reparations: The National Coalition Of Blacks For Reparations In America (N'Cobra) And Its Antecedents,
2010
University of Arkansas at Little Rock William H. Bowen School of Law
Historic And Modern Social Movements For Reparations: The National Coalition Of Blacks For Reparations In America (N'Cobra) And Its Antecedents, Adjoa A. Aiyetoro, Adrienne D. Davis
Law Faculty Scholarship
Most of the legal scholarship on reparations for Blacks in America focuses on its legal or political viability. This literature has considered both procedural obstacles, such as statutes of limitations and sovereign immunity, as well as the substantive conception of a defensible cause of action. Indeed, Congressman John Conyers introduced H.R. 40, a bill to study reparations, in 1989 and every Congressional session since, and there have been three law suits that have received national attention. This Essay takes a different approach, considering reparations as a social movement with a rich and under-explored history. As Robin Kelley explains, such an …
Originalism And Original Exclusions,
2010
Harvard University
Originalism And Original Exclusions, Mark S. Stein
Kentucky Law Journal
No abstract provided.
Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure,
2010
University of Colorado Law School
Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan
University of Colorado Law Review
This Article explores the consequences for good governance of poorly constructed legal infrastructure in the Tenth Amendment context, and recommends a simple jurisprudential fix: exchanging a property rule for the inalienability remedy rule that the Supreme Court used to protect the anticommandeering entitlement in New York v. United States. Grounded in a values-based theory of American federalism, it shows how the New York inalienability rule unnecessarily removes tools for resolving interjurisdictional quagmiresexemplified by the radioactive waste capacity problem at the heart of the New York litigation-by prohibiting novel forms of state-federal bargaining. In New York, the Court held that Congress …
Constitutional Contours For The Design And Implementation Of Multistate Renewable Energy Programs And Projects,
2010
University of Colorado Law School
Constitutional Contours For The Design And Implementation Of Multistate Renewable Energy Programs And Projects, Robin Kundis Craig
University of Colorado Law Review
States are increasingly considering multistate efforts to promote the production, sale, and use of renewable energy. For example, in August 2009, policymakers and stakeholders gathered to consider joint renewable energy (specifically, wind energy) transmission projects among Colorado, New Mexico, Utah, and Wyoming. This Article explores a number of constitutional issues that multistate efforts to encourage, market, transmit, or distribute renewable energy could raise. It reflects the reality that for energy, as for many other issues, multistate creativity in establishing new governance regimes or in implementing interstate projects often creates constitutional ambiguities. Many of these ambiguities center on the constitutional status-private …
What The Abortion Disclosure Cases Say About The Constitutionality Of Persuasive Government Speech On Product Labels,
2010
Pacific McGeorge School of Law
What The Abortion Disclosure Cases Say About The Constitutionality Of Persuasive Government Speech On Product Labels, Leslie Gielow Jacobs
McGeorge School of Law Scholarly Articles
No abstract provided.
Catholicism And Constitutional Law: More Than Privacy In The Penumbras,
2010
St. Mary's University School of Law
Catholicism And Constitutional Law: More Than Privacy In The Penumbras, Bill Piatt
Faculty Articles
No abstract provided.
Unequal To The Task: ‘Kapp’Ing The Substantive Potential Of Section 15,
2010
Allard School of Law at the University of British Columbia
Unequal To The Task: ‘Kapp’Ing The Substantive Potential Of Section 15, Margot Young
All Faculty Publications
This paper reviews the Supreme Court of Canada’s interpretation of s. 15 as a guarantee of substantive equality focusing on R. v. Kapp, a recent key section 15 case, as seen in perspective of Andrews v. Law Society of British Columbia (1989). R. v. Kapp (2008) brings together a dense complex of issues involving equality, affirmative action, race and Aboriginal rights. This paper takes on only a piece of this tangle – focusing on three issues that speak to the Court’s continuing failure to engage fully with the promise of Andrews’ rejection of a formal equality framework for section 15. …
A Closer Look At Law: Human Rights As Multi-Level Sites Of Struggles Over Multi-Dimensional Equality,
2010
University of Michigan Law School
A Closer Look At Law: Human Rights As Multi-Level Sites Of Struggles Over Multi-Dimensional Equality, Susanne Baer
Articles
In many societies, deep conflicts arise around religious matters, and around equality. Often, religious collectives demand the right to self-determination of issues considered - by them - to be their own, and these demands collide with individual rights to, again, religious freedom. These are thus conflicts of religion v. religion. Then, collective religious freedom tends to become an obligation for all those who are defined as belonging to the collective, which carries the problem that mostly elites define its meaning and they silence dissent. Usually, such obligations are also unequal relating to gender, with different regimes for women and for …
The Basic Law At 60 - Introduction To The Special Issue,
2010
University of Michigan Law School
The Basic Law At 60 - Introduction To The Special Issue, Susanne Baer, Christian Boulanger, Alexander Klose, Rosemarie Will
Articles
For Germany 2009 was a year of constitutional anniversaries: the first democratic constitution (Paulskirchenverfassung of 1849) was promulgated 160 years ago; the 1919 Weimar Constitution would have turned 90; and finally, the country celebrated 60 years of the Basic Law, which was proclaimed and signed in Bonn on 23 May 1949. Despite its birth in the midst of economic and political turmoil and widespread disillusion with politics, the Basic Law has come to be regarded as a "success story." As is well known, it was never meant to last - the very term "Grundgesetz" (basic law) indicated that it was …
A Structural Vision Of Habeas Corpus,
2010
University of Michigan Law School
A Structural Vision Of Habeas Corpus, Eve Brensike Primus
Articles
As scholars have recognized elsewhere in public law, there is no hermetic separation between individual rights and structural or systemic processes of governance. To be sure, it is often helpful to focus on a question as primarily implicating one or the other of those categories. But a full appreciation of a structural rule includes an understanding of its relationship to individuals, and individual rights can both derive from and help shape larger systemic practices. The separation of powers principle, for example, is clearly a matter of structure, but much of its virtue rests on its promise to help protect the …
