Constructing The Constitutional Canon: The Metonymic Evolution Of Federalist 10, 2010 WIlliam S. Boyd School of Law, UNLV
Constructing The Constitutional Canon: The Metonymic Evolution Of Federalist 10, Ian C. Bartrum
Ian C Bartrum
This paper is part of larger symposium convened for the 2010 AALS annual meeting. In it I adapt some of my earlier constitutional theoretical work to engage the topic of that symposium: the so-called “interpretation/construction distinction”. I make two related criticisms of the distinction: (1) it relies on a flawed conception of linguistic meaning, and (2) while these flaws may be harmless in the “easy” cases of interpretation, they are much more problematic in the difficult cases of most concern. Thus, I doubt the ultimate utility of the distinction as part of a “true and correct” model of constitutional ...
The Constitutional Canon As Argumentative Metonymy, 2010 Yale Law School
The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum
Ian C Bartrum
This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that ...
Curbing Rent-Seeking And Inefficiency With Broad Takings Powers And Undercompensation: The Case Of Singapore From A Givings Perspective, Jianlin Chen
Conventional discourses on the perils of weak property rights vis-à-vis government takings have failed to account for and respond to the rent-seeking and inefficiency problems of government actions. Singapore, with its broad takings powers, coupled with express undercompensation, has not suffered from the predicted widespread rent-seeking and inefficiency. This case study of Singapore from a givings perspective demonstrates the importance of imposing a fair charge on the various kinds of givings in curbing rent-seeking and inefficiency. There are also additional benefits of having a healthy fiscal budget and more equitable taxation arising from Singapore's givings regime. The key normative ...
Torture, Impunity, And The Need For Independent Prosecutorial Oversight Of The Executive Branch, 2010 Indiana University --Indianapolis
Torture, Impunity, And The Need For Independent Prosecutorial Oversight Of The Executive Branch, Fran Quigley
When executive branch misconduct is alleged, an inherent conflict of interest is presented by investing prosecutorial discretion in a U.S. Attorney General appointed by, and serving at the pleasure of, the President.
Various commentators, including Justice Antonin Scalia, Professor Stephen Carter, and the many critics of the former independent counsel statute, have posited that this conflict will be overcome by checks on executive power provided by the legislative branch, the judiciary, and political pressure.
That sanguine view of adequate executive branch oversight was put to the test when acts of torture were authorized by high-level members of the George ...
Nadie Sabe Para Quien Trabaja: La Propiedad En La Jurisprudencia Del Tribunal Constitucional, 2010 Universidad Peruana de Ciencias Aplicadas
Nadie Sabe Para Quien Trabaja: La Propiedad En La Jurisprudencia Del Tribunal Constitucional, Enrique Pasquel
En este trabajo se analiza lo que el Tribunal Constitucional peruano ha dicho sobre la protección que brinda la Constitución al derecho a la propiedad privada.
No Bueno, Buono: An Essay On Salazar V. Buono And Establishment Clause Remedies, 2010 Stanford University
No Bueno, Buono: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens
David B. Owens
Atop Sunrise Rock in the Mojave Desert sat a Latin Cross. The only problem, for some, was that this land happened to be owned by the federal government. After contentious litigation, the cross was deemed a violation of the Establishment Clause, and the district court issued an injunction forbidding the cross to remain. That judgment became final and unreviewable, but the district court’s subsequent remedial action—declaring invalid Congress’ attempt to sell only a small “donut” of land around the cross—was not. Congress’ interesting end-around spawned further litigation and an order by the district court modifying the injunction ...
The Right To Arms In The Living Constitution, 2010 Denver University, Sturm College of Law
The Right To Arms In The Living Constitution, David B. Kopel
David B Kopel
This Article presents a brief history of the Second Amendment as part of the living Constitution. From the Early Republic through the present, the American public has always understood the Second Amendment as guaranteeing a right to own firearms for self-defense. That view has been in accordance with élite legal opinion, except for a period in part of the twentieth century.
"Living constitutionalism" should be distinguished from "dead constitutionalism." Under the former, courts looks to objective referents of shared public understanding of constitutional values. Examples of objective referents include state constitutions, as well as federal or state laws to protect ...
State Court Standards Of Review For The Right To Keep And Bear Arms, 2010 Denver University, Sturm College of Law
State Court Standards Of Review For The Right To Keep And Bear Arms, David B. Kopel, Clayton Cramer
David B Kopel
Cases on the right to arms in state constitutions can provide useful guidance for courts addressing Second Amendment issues. Although some people have claimed that state courts always use a highly deferential version of "reasonableness," this article shows that many courts have employed rigorous standards, including the tools of strict scrutiny, such as overbreadth, narrow tailoring, and less restrictive means. Courts have also used categoricalism (deciding whether something is inside or outside the right) and narrow construction (to prevent criminal laws from conflicting with the right to arms). Even when formally applying "reasonableness," many courts have used reasonableness as a ...
The Keystone Of The Second Amendment: Quakers, The Pennsylvania Constitution, And The Questionable Scholarship Of Nathan Kozuskanich, David B. Kopel, Clayton Cramer
David B Kopel
Historian Nathan Kozuskanich claims that the Second Amendment-like the arms provision of the 1776 Pennsylvania Constitution-is only a guarantee of a right of individuals to participate in the militia, in defense of the polity. Kozuskanich’s claim about the Second Amendment is based on two articles he wrote about the original public meaning of the right to arms in Pennsylvania, including the 1776 and 1790 Pennsylvania constitutional arms guarantees.
Part I of this Article provides a straightforward legal history of the right to arms provisions in the 1776 Pennsylvania Constitution and of the 1790 Pennsylvania Constitution. We examine Kozuskanich’s ...
A New Global Constitutional Order?, 2010 University of Toronto
A New Global Constitutional Order?, David Schneiderman
Accompanying the rise of new transnational legal rules and institutions intended to promote global economic integration are questions about the linkages between transnational legality and constitutional law. In what ways does transnational economic law mimic features of national constitutional law? Does transnational law complement in some ways or supersede in other ways what we typically describe as constitutional law? To these questions we can now add the following: are transnational rules and institutions a proper subject of study for comparative constitutionalists? This chapter makes a case for the incorporation of forms of transnational legality into comparative constitutional studies. Taking as ...
Promoting Equality, Black Economic Empowerment, And The Future Of Investment Rules, 2010 University of Toronto
Promoting Equality, Black Economic Empowerment, And The Future Of Investment Rules, David Schneiderman
It generally is assumed that rules to protect and promote foreign investment are sufficiently flexible to address the specific needs of developing and less developed countries. What happens, however, when the typical model of investment treaty rubs against national constitutional commitments, such as those mandating the promotion of equality in post-apartheid South Africa? This paper explores such tensions in the context of free trade and investment negotiations between the United States and the South African Customs Union. South Africa’s plan to generate a new black middle class via a program of Black Economic Empowerment, it turns out, was a ...
Commerce In The Commerce Clause: A Response To Jack Balkin, 2010 Independence Institute
Commerce In The Commerce Clause: A Response To Jack Balkin, David B. Kopel, Robert G. Natelson
David B Kopel
The Constitution’s original meaning is its meaning to those ratifying the document during a discrete time period: from its adoption by the Constitutional Convention in late 1787 until Rhode Island’s ratification on May 29, 1790. Reconstructing it requires historical skills, including a comprehensive approach to sources. Jack Balkin’s article Commerce fails to consider the full range of evidence and thereby attributes to the Constitution’s Commerce Clause a scope that virtually no one in the Founding Era believed it had.
Valuing Having Children, 2010 Emory University
Valuing Having Children, Carter Dillard
Are there objective values on which to base the claim of a right to procreate? Can we articulate reasons for having children so powerful that they justify our doing so, as a matter of right, even where it would conflict with the interests and values of others? This Article systematically and critically examines many of the values that, before now, courts and commentators have simply presumed and relied upon when making the claim that there is and ought to be a fundamental right to have children. This Article first develops a methodology for examining the values and interests on which ...
Future Children As Property, 2010 Emory University
Future Children As Property, Carter Dillard
Between Skinner v. Oklahoma and the advent of modern substantive due process, procreation, at least in the eyes of many courts and commentators, became entrenched as a fundamental, if not absolute, right. And yet ironically, the establishment of this right, often taken as symbolic of personal liberty, has diminished autonomy for those persons inevitably caught on the other end of it – our future children. Expanding procreative autonomy has diminished public norms that might otherwise ensure that future children are born into circumstances that also expand their autonomy. Instead, the broad, modern, privacy-based version of the right to procreate leaves the ...
Antecedent Law: The Law Of People Making, 2010 Emory University
Antecedent Law: The Law Of People Making, Carter Dillard
In our conception of law we have largely presumed the process by which the people whose behavior the law is meant to regulate come to be present and susceptible to the law's influence. As a result, that process is largely outside of our account of the law, and any role the law might have over the matter is relatively ignored. This article introduces a simple and concrete conceptual device, a form of law called antecedent law, which seeks to undo this presumption and refocus our attention on that which can determine the presence of persons in the polity and ...
Color-Blind: Procedure's Quiet But Crucial Role In Achieving Racial Justice, 2010 Regent University School of Law
Color-Blind: Procedure's Quiet But Crucial Role In Achieving Racial Justice, Benjamin V. Madison Iii
Benjamin V Madison, III
This article explores the role of procedural institutions, both in the Constitution and in other laws related to the judicial system, that promote impartial justice. The article explores the twin principles of human fallibility and the equality of all human beings as the fundamental bases of the judicial system. The role of procedure in enabling federal courts to enforce the Supreme Court's decision in Brown v. Board of Education is a featured part of the article.
Valuing Intellectual Property: An Experiment, 2010 Chicago-Kent College of Law
Valuing Intellectual Property: An Experiment, Christopher Sprigman, Christopher Buccafusco
In this article we report on the results of an experiment we performed to determine whether transactions in intellectual property (IP) are subject to the valuation anomalies commonly referred to as “endowment effects”. Traditional conceptions of the value of IP rely on assumptions about human rationality derived from classical economics. The law assumes that when people make decisions about buying, selling, and licensing IP they do so with fixed, context-independent preferences. Over the past several decades, this rational actor model of classical economics has come under attack by behavioral data showing that people do not always make strictly rational decisions ...
Examining A First Amendment Court Case To Teach Argument Analysis To Freshman Writers At An Art College, 2010 Massachusetts College of Art
Examining A First Amendment Court Case To Teach Argument Analysis To Freshman Writers At An Art College, Angelika Festa
Human Architecture: Journal of the Sociology of Self-Knowledge
By examining the arguments put forth by plaintiffs and defendants in art censorship cases, students in a freshman writing course become aware that argumentation and analysis play important roles not only in courts of law but also in the art world and in their own everyday lives as artists. This article discusses effective use of published information about a 1999 First Amendment case (Brooklyn Institute of the Arts and Sciences v. City of New York and Rudolph W. Giuliani). Guided by reading and writing assignments and a series of class discussions, students learn to analyze arguments on rights related to ...
Extreme Vulnerability Of Migrants: The Cases Of The United States And Mexico, 2010 Georgetown University Law Center
Extreme Vulnerability Of Migrants: The Cases Of The United States And Mexico, Jorge A. Bustamante
International Migrants Bill of Rights Symposium
This paper deals with the notion of vulnerability of migrants, with respect to the realities of two countries, the United States and Mexico. The vulnerability of migrants is understood as a heterogeneously imposed condition of powerlessness. This is based on the premise that migrants are inherently vulnerable as subjects of human rights from the point of their departure as they leave home to initiate their migration. That is, any human being is less vulnerable at home than after she leaves home to become a migrant. The same applies to a sociological extension of the notion of home--a community of origin ...
Introduction To The Ials Conference On Comparative Constitutional Law, 2010 Penn State Law
Introduction To The Ials Conference On Comparative Constitutional Law, Louis Del Duca, Patrick Del Duca, Gianluca Gentili
Penn State International Law Review
No abstract provided.