Federalism, in The Cambridge Companion to the United States Constitution 185, (Karen Orren & John w. Compton eds., 2018).
American constitutional federalism emerged from a complex matrix comprised by multiple intellectual, institutional, and experiential sources: from political theorists ranging from Machiavelli to Montesquieu and from Harrington to Hume; from colonial analogies to other dominions connected to the English realm through a common monarch, such as Ireland and seventeenth-century Scotland; and from an assortment of colonial customs, practices, and formal and informal institutional arrangements that were varied, fluctuating, contested, and in many respects underspecified. The multiplicity and diversity of these conceptual and historical inputs ensured that the nature and implementation of the federal idea would be matters of continuing political and theoretical debate.
Though the Supreme Court of the United States has played a preeminent role in the liquidation of the federal idea, its contours have been shaped by contributions from multiple centers: by state and federal legislators in decisions whether to initiate or enact legislation; by state and federal executives determining whether to approve or veto legislation with which they were presented; by state and federal judges reviewing legislation for constitutionality or determining which rules of decision to apply in cases coming before them; by statesmen and commentators motivated by combinations of high principle and immediate interest; and by the people by whom such officials were elected to or retired from office. Much of the work of constructing a working federal system has been performed incrementally, as actors in each of the branches of government, and judges most particularly, have sought in the context of particular cases or issues to find solutions to the practical problems arising from the coexistence of two semiautonomous levels of government within a single territory. Though the subjects addressed by this accumulative process have varied from generation to generation, many of the themes and tensions have proven remarkably durable. Still, the fallout from two exogenous shocks to the federal system has fundamentally reoriented the trajectory of American constitutional federalism. The first was the Civil War and the Reconstruction that followed; the second was the Great Depression and the resulting New Deal, which in the domain of political economy transformed American federalism from a regime constituted by a set of judicially enforced rules into a system constituted by a collection of political values entrusted to the democratic process.
James J. Kelly Jr.
Drafting Organizational Documents teaches clinical law students the indispensable skill of legal drafting by introducing them to the nonprofit and for-profit corporate documents they are most likely to create before graduating. Also appropriate for simulation and other skills courses, this book takes students through the process of identifying key issues, formulating provision options and crafting legal language. With chapters on the foundational documents for nonprofit corporation, limited liability companies, Delaware corporations and benefit corporations, this book enables students to draft documents from scratch in order to critically analyze and adapt forms.
Mary Ellen O'Connell
The Presumption of Peace: Illegal War, Human Rights, and Humanitarian Law, in Seeking Accountability for the Unlawful Use of Force 526 (Leila Nadya Sadat ed., 2018).
On September 11, 2015, world headlines were focused on people fleeing war rather than the anniversary of terrorist attacks in the United States fourteen years earlier. In Europe, men, women, and children were drowning, suffocating, and freezing in desperate attempts to escape civil wars in Africa, the Middle East, and South Asia. No greater proof could be provided of the urgent need for peace. Yet, instead of seeking to enhance the capacity of law and diplomacy to prevent and end armed conflict some experts in militarily powerful States were arguing for interpretations of law and moral principle permitting more war, not less. These experts sought relaxation of the rules restricting resort to military force or the right to follow wartime rules governing killing and detention to peacetime situations. Their positions may well be based on a sincerely held belief that military force is the most effective way to respond to terrorism, dictatorial regimes, and other causes of insecurity. Prominent ethicists are making a similar case for expanding resort to war for similar reasons. Yet, in the words of a former British diplomat, “governments’ failed attempts to impose order by force are themselves the source of disorder.
In the search for bold action in the face of serious challenges, it can be overlooked that war is in fact the cause of tragedy, not the solution. Protecting human lives and the natural environment from the ravages of war can best be accomplished by promoting restrictions on force and peaceful resolution of conflict. The contemporary civil wars in Syria, Iraq, Libya, Afghanistan, Congo, Burundi, and else are feeding the flood of migrants. These wars need resolution not escalation through foreign military intervention. It will be argued here that however understandable the calls for greater military force may be, war is rarely the answer. Fostering understanding and respect for law and even expanding restrictions to prohibit civil war hold greater promise. The recent trend toward interpreting the scope of peacetime human rights protections to apply more broadly is an important counterpoint to war-expansion arguments. Expanding human rights follows the plan of the World War II generation to save succeeding generations from the scourge of war through law and moral suasion. I
Mary Ellen O'Connell
The Crisis in Ukraine - 2014, in The Use of Force in International Law: A Case Based Approach 855 (Oliver Corten and Tom Ruys, eds., 2018)
In the early morning hours of February 28, 2014, Russian armed forces moved out of their naval base on the Black Sea and into Crimea, triggering a crisis with Ukraine that continues as this chapter goes to print. The chapter begins with a detailed factual account of the Russian move into Crimea and subsequent intervention on behalf of separatist militias in Eastern Ukraine. Russia has put forward sophisticated arguments under international law to attempt to justify its military interventions in Crimea and Eastern Ukraine. On close analysis, no claim is adequate to avoid the charge of aggression. The United Nations Charter, Article 2(4), generally prohibits the use of force. Any serious violation of the prohibition is aggression. Russia can point to similar conduct by Western states from aiding the separatist Kosovo Liberation Army during in 1999 to assisting insurgents seeking to overthrow the government of Syria to Turkey’s invasion of Cyprus, allegedly under the terms of a treaty. While these and other violations of the Charter have plainly weakened the perception that the prohibition on the use of force is a peremptory norm, requiring strict compliance, peremptory norms are not modified as a matter of law by violations. Russia cannot defend its use of force against Ukraine by pointing to the violations of other states. Maintaining sanctions on Russia is important to support the international rule of law, but actually winning Russian compliance with the Charter and restoring Ukraine’s control of its sovereign territory would be more likely if other states with major militaries demonstrated the same fidelity to the Charter being demanded of Russia.
Mary Ellen O'Connell and Caleb M. Day
Sources and the Legality and Validity of International Law: Natural Law as Source of Extra-Positive Norms, in The Oxford Handbook on the Sources of International Law 562 (Samantha Besson & Jean D’Aspremont eds., 2017).
This chapter posits that international law, like all law, can be understood as a hybrid of positive and natural law. The history of natural law from Ancient Greece to today’s global community reveals that the method used for centuries to explain extra-positive features of law consists of three integral elements. The method uses reason, reflection on nature, and openness to transcendence. Certain contemporary natural law theorists, however, prefer to focus on reason and nature alone. Yet, the history of natural law thinking shows that transcendence is integral to the method. History also reveals that religion is not the only avenue to transcendence. Transcendence completes a natural law method capable of explaining persuasively why law binds in general and why certain principles are superior to positive law.
Anthony J. Bellia
This exciting book by Anthony J. Bellia is a unique collection of legal and scholarly materials intended for use in a range of courses, including Constitutional Law, Federalism, Federalism History, Federalism Theory, and Comparative Federalism. The first book of its kind, Federalism spans traditional subject areas, which allows a deeper and richer treatment of the subject.
- Considers federalism questions across subject areas
- Transcends lines drawn by courses such as Constitutional Law, Federal Courts, and Civil Procedure
- Enables fuller and richer treatment of the subject of federalism
- Includes primary historical and theoretical sources relating to legal development and enduring questions
- Increases understanding of constitutional doctrine and fosters interdisciplinary learning
- Presents foundational materials useful for a range of courses on federalism
Anthony J. Bellia and Bradford R. Clark
The Law of Nations and the United States Constitution offers a new lens through which anyone interested in constitutional governance in the United States should analyze the role and status of customary international law in U.S. courts. The book explains that the law of nations has not interacted with the Constitution in any single overarching way. Rather, the Constitution was designed to interact in distinct ways with each of the three traditional branches of the law of nations that existed when it was adopted--namely, the law merchant, the law of state-state relations, and the law maritime. By disaggregating how different parts of the Constitution interacted with different kinds of international law, the book provides an account of historical understandings and judicial precedent that will help judges and scholars more readily identify and resolve the constitutional questions presented by judicial use of customary international law today. Part I describes the three traditional branches of the law of nations and examines their relationship with the Constitution. Part II describes the emergence of modern customary international law in the twentieth century, considers how it differs from the traditional branches of the law of nations, and explains why its role or status in U.S. courts requires an independent, context-specific analysis of its interaction with the Constitution. Part III assesses how both modern and traditional customary international law should be understood to interact with the Constitution today.
Edmund P. Edmonds and Frank G. Houdek
Baseball and law have intersected since the primordial days. In 1791, a Pittsfield, Massachusetts, ordinance prohibited ball playing near the town's meeting house. Ball games on Sundays were barred by a Pennsylvania statute in 1794.
In 2015, a federal court held that baseball's exemption from antitrust laws applied to franchise relocations. Another court overturned the conviction of Barry Bonds for obstruction of justice. A third denied a request by rooftop entrepreneurs to enjoin the construction of a massive video screen at Wrigley Field.
This exhaustive chronology traces the effects the law has had on the national pastime, both pro and con, on and off the field, from the use of copyright to protect not only equipment but also "Take Me Out to the Ball Game" to frequent litigation between players and owners over contracts and the reserve clause. The stories of lawyers like Kenesaw Mountain Landis and Branch Rickey are entertainingly instructive.
Jimmy Gurule and Geoffrey S. Corn
This new casebook provides a comprehensive examination and analysis of the inherent tension between the Constitution and select national security policies, and explores the multiple dimensions of that conflict. Specifically, this first edition explores key points where constitutional law directs or restricts the development of national security policy, its implementation, and oversight. Each chapter focuses on critically important precedents, offering targeted questions following each case to assist students in identifying key concepts to draw from the primary sources. Offering students a comprehensive yet focused treatment of key national security law concepts, National Security Law and the Constitution is well suited for a course that is as much an advanced “as applied” constitutional law course as it is a national security law course, as well as for use in advanced international relations and national security policy courses.
Bruce R. Huber and Klaus Mathis
Temporal Spillovers, in Environmental Law and Economics 43 (Klaus Mathis and Bruce R. Huber eds., 2017)
This anthology discusses important issues surrounding environmental law and economics and provides an in-depth analysis of its use in legislation, regulation and legal adjudication from a neoclassical and behavioural law and economics perspective.
Environmental issues raise a vast range of legal questions: to what extent is it justifiable to rely on markets and continued technological innovation, especially as it relates to present exploitation of scarce resources? Or is it necessary for the state to intervene? Regulatory instruments are available to create and maintain a more sustainable society: command and control regulations, restraints, Pigovian taxes, emission certificates, nudging policies, etc. If regulation in a certain legal field is necessary, which policies and methods will most effectively spur sustainable consumption and production in order to protect the environment while mitigating any potential negative impact on economic development? Since the related problems are often caused by scarcity of resources, economic analysis of law can offer remarkable insights for their resolution.
Part I underlines the foundations of environmental law and economics. Part II analyses the effectiveness of economic instruments and regulations in environmental law. Part III is dedicated to the problems of climate change. Finally, Part IV focuses on tort and criminal law. The twenty-one chapters in this volume deliver insights into the multifaceted debate surrounding the use of economic instruments in environmental regulation in Europe.
The chapter written by Prof Huber, Temporal Spillovers,discusses the fact that for decades, the discipline of law and economics in the U.S. has offered a broader perspective to the analysis of legislation and jurisdiction compared to the European countries. While this is due to [a] number of reasons, this article emphasizes the importance of the different legal cultures, offering analyses of the British, French, German, and European legal framework. Although these differences seem to be rooted in structural differences and thus may persist for some time, there are areas of overlapping interests and similar approaches of applying methods of law and economics. The article focuses on these tendencies and offers a deeper analysis in the area of environmental protection
Randy J. Kozel
In this timely book, Randy J. Kozel develops a theory of precedent designed to enhance the stability and impersonality of constitutional law. Kozel contends that the prevailing approach to precedent in American law is undermined by principled disagreements among judges over the proper means and ends of constitutional interpretation. The structure and composition of the doctrine all but guarantee that conclusions about the durability of precedent will track individual views about whether decisions are right or wrong, and whether mistakes are harmful or benign. This is a serious challenge, but it also reveals a path toward maintaining legal continuity even as judges come and go. Kozel's account of precedent should be read by anyone interested in the nature of the judicial role and the trajectory of constitutional law.
Mary Ellen O'Connell
Law, Theology, and Aesthetics: Identifying the Sources of Authority, in Theology as Interdisciplinary Inquiry: Learning with and from the Natural and Human Sciences 112 (Robin W. Lovin and Joshua Mauldin eds., 2017).
This discussion of law, theology, and aesthetics will use a method that reflects the interdisciplinary discussions between law and theology in CTI's (The Center of Theological Inquiry) Inquiry on Law and Religious Freedom. The aim is to forge a new path to resolving ancient issues that developed with the separation of two once closely related disciplines, law and religion. In answering the question "Why should law have the power to command obedience of those subject to the law?" this essay will reflect on religious, aesthetic, and other answers, arguing for aesthetics as the approach that can bridge the long separation of law and religion in the West. Aesthetics is a compelling common source of insight to support the flourishing of humanity in community and in the natural world. (p.113-114)
In the book, leading scholars in ethics, theology, and social science sum up three years of study and conversation regarding the value of interdisciplinary theological inquiry. This is an essential and challenging collection for all who set out to think, write, teach, and preach theologically in the contemporary world.
Stephen F. Smith
Overfederalization in Reforming Criminal Justice: Volume 1: Introduction and Criminalization 39 (Erik Luna ed., 2017)
Since the 1960s, Congress has steadily expanded the crimefighting reach of the federal government. Unfortunately, the constant drumbeat to “federalize” criminal law by passing more federal statutes, ratcheting up already severe federal punishments, and expanding the federal prison population has accomplished precious little in terms of public safety. The failed drug war proves as much. Worst still, the virtually limitless and unchecked charging authority of federal prosecutors undermines the effectiveness of American criminal justice. Instead of complementing state efforts by focusing on areas of federal comparative advantage, federal prosecutors waste scarce resources “playing district attorney”—that is to say, pursing the same kinds of crimes that state prosecutors do. The result is a federal prison population that is bursting at the seams, and a national drug problem that has never been worse. The solution is for Congress to undertake a major overhaul of federal criminal law. The number and scope of federal criminal statutes should be drastically reduced, and the definition of federal crimes tightened and modernized, to limit federal enforcement to offenses that are of peculiar concern to the federal government and offenses that defy adequate response within the state system. Sentencing policies that generate unusually severe punishment in federal court, such as harsh statutory mandatory minimums for drug and nonviolent weapons offenses, and overbroad asset forfeiture laws, should be repealed or at least reformed to eliminate incentives for prosecutors to pursue garden-variety criminal matters in federal court. In this context, as in many others, “less is more”: a streamlined federal criminal code limited to the nation’s worst offenses, which reserves major penalties for major crimes, will better protect the public than our costly and ineffective current system of overfederalization.
O. Carter Snead and Stephanie Maloney
Technology and the American Constitution in Oxford Handbook of Law, Regulation, and Technology 296 (Eloise Scotford, Karen Yeung & Roger Brownsend eds., 2017)
This chapter examines how the structural provisions of the American Constitution and the federalist system of government they create uniquely shape the landscape of regulation for technology in the United States. The chapter’s inquiry focuses on the biomedical technologies associated with assisted reproduction and embryo research. These areas present vexing normative questions about the introduction and deployment of these technologies, showing the mechanisms, dynamics, virtues, and limits of the federalist system of government for the regulation of technology. In particular, the differing jurisdictional scope of federal and state regulation results in overlap and interplay between the two regulatory systems. The consequence of this dynamic is often a wide divergence in judgments about law and public policy. The chapter’s review of the constitutionally fragmented regime currently regulating different biotechnologies questions whether such a decentralized approach is well suited to technologies that involve essential moral and ethical judgments about the human person.
Jay Tidmarsh, Suzanna Sherry, and Thomas D. Rowe Jr
The 2017 Statutory and Case Supplement brings the casebook up-to-date, noting new developments in a short introductory section. Because the supplement also includes edited versions of the most important new cases, as well as the Federal Rules of Civil Procedure, the Constitution, and relevant statutes, it can be used with any civil procedure casebook.
Matthew J. Barrett and David R. Herwitz
The concise version of the most widely adopted text in the field continues to respond to a demand for a briefer, less detailed casebook that introduces novices to how accounting issues frequently arise in the practice of law. Designed specifically for one- and two-credit hour courses for law students with no accounting background, the text of the Concise Fifth Edition is more than forty percent shorter than the Fifth Edition, so students will find this text less expensive and easier to master. The Concise Fifth Edition offers a broad overview of the field, which its earliest predecessor, the first casebook on accounting law for students, pioneered almost 70 years ago.
Patricia L. Bellia, James G. Carr, and Evan A. Creutz
The Law of Electronic Surveillance provides objective analysis of issues related to the government's gathering of evidence through electronic devices. Providing more than 2,500 case citations, it covers major developments and important cases. Key topics include:
- Challenging court-ordered wiretaps
- Electronic search warrants
- Foreign intelligence surveillance
- Suppression of evidence obtained
- Voice exemplars and other identification evidence
- Electronic surveillance of a defendant's attorney
- Legal uses that may be made of evidence obtained from electronic surveillance
- Confronting and challenging electronic surveillance
- Executing an electronic search
- Criminal penalties and civil remedies for illegal electronic surveillance
- Electronic surveillance types and legal developments prior to 1968
- Title III
Samuel L. Bray, Michael S. Paulsen, Steven G. Calabresi, Michael W. McConnell, and William Baude
This casebook emphasizes the text, structure, and history of the Constitution. It uses "great cases" for learning the major issues in constitutional law, and it gives less attention to small ripples of contemporary doctrine. It emphasizes the task of interpretation, including many examples of the interpretation of the Constitution by the political branches. And it includes features of our constitutional history that are neglected in many casebooks, such as slavery, the amendment process, and the early history of the freedom of speech. The third edition has many refinements. It also has more coverage of executive discretion, the taxing and spending powers, the Necessary and Proper Clause, incorporation, and the drafting of the Fourteenth Amendment. It is now suitable not only for a survey course, but also for a course focused on federalism, on the First Amendment, or on the Fourteenth Amendment.
Margaret Brinig, Marital Property in The International Survey of Family Law 509 (Bill Atkins ed., 2016)
Paolo G. Carozza, Vittoria Barsotti, Marta Cartabia, and Andrea Simoncini
Italian Constitutional Justice in Global Context is the first book ever published in English to provide an international examination of the Italian Constitutional Court (ItCC), offering a comprehensive analysis of its principal lines of jurisprudence, historical origins, organization, procedures, and its current engagement with transnational European law. The ItCC represents one of the strongest and most successful examples of constitutional judicial review, and is distinctive in its structure, institutional dimensions, and well-developed jurisprudence. Moreover, the ItCC has developed a distinctive voice among global constitutional actors in its adjudication of a broad range of topics from fundamental rights and liberties to the allocations of governmental power and regionalism. Nevertheless, in global constitutional dialog, the voice of the ItCC has been almost entirely absent due to a relative lack of both English translations of its decisions and of focused scholarly commentary in English.
This book describes the "Italian Style" in global constitutional adjudication, and aims to elevate Italian constitutional jurisprudence to an active participant role in global constitutional discourse. The authors have carefully structured the work to allow the ItCC's own voice to emerge. It presents broad syntheses of major areas of the Court's case law, provides excerpts from notable decisions in a narrative and analytical context, addresses the tension between the ItCC and the Court of Cassation, and positions the development, character, and importance of the ItCC's jurisprudence in the larger arc of global judicial dialog.
Douglass Cassel and Barbara Fick
Steering Clear of the Twin Shoals of a Rights-Based Morality and a Duty-Based Legality, in Between Rights and Responsibilities: A Fundamental Debate 51 (Stephan Parmentier, Hans Werdmödler and Michaël Merrigan eds., 2016)
The Poverty of a Rights-Based Morality
A Religious Perspective
Affirmative Duties in International Human Rights Instruments
- Universal Declaration of Human Rights
- American Declaration of the Rights and Duties of Man
- African Charter of Human and Peoples' Rights
Duties as Restrictions on Rights
Codifications of Duites
'Horizontal' versus 'Vertical' Duties
Human Rights in a Globalising Economy: Rights and Responsibilities of Trade Unions.
Introduction Unions as Beneficiaries of Human Rights Protection
The 'Traditional' Role of Trade Unions
The Importance for Unions to Perform a Broader Role
Are Trade Unions Fulfilling their Responsibility?
The Way Ahead
Equality and Religious Liberty: Oppressing Conscientious Diversity in England, in Religious Freedom and Gay Rights: Emerging Conflicts in the United States and Europe 21 (Timothy Shah, Thomas Farr, and Jack Friedman eds., 2016).
"When these analyses and reflections were first drafted, in 2012, the stories they focused upon outlined a situation ominous for conscience, religion, and civil liberty. By the time they were supplemented and completed in 2015, the stories had almost all ended badly, and the outlines of an oppressive new settlement had been etched deeply into English law and civil society. Oppression in the name of equality and diversity sharply attacks those very values, even as it deepens the other wounds it inflicts on the substance of our common good and the sustainability of our people." (21)
Richard W. Garnett
The Freedom of the Church:(Toward) and Exposition, Translation, and Defense, in The Rise of Corporate Religious Liberty (Micah Schwartzman, Chad Flanders, & Zoe Robinson, eds., 2016)
This chapter is part of a collection that reflects the increased interest in, and attention to, the corporate, communal, and institutional dimensions of religious freedom. In addition to summarizing and re-stating claims made by the author in earlier work – claims having to do with, among other things, church-state separation, the no-establishment rule, legal and social pluralism, and the structural role played by religious and other institutions – the Article responds to several leading lines of criticism and attempts to strengthen the argument that the idea of “the freedom of the church” (or something like it) is not a relic or anachronism but instead remains a crucial component of any plausible and attractive account of religious freedom under and through constitutionally limited government. It also includes suggestions for some workable and – it is hoped – faithful translations of it for use in present-day cases, doctrine, and conversations.
The Article’s proposal is that “the freedom of the church” is still-important, even if very old, idea. It is not entirely out of place – even if it does not seem to fit neatly – in today’s constitutional-law and law-and-religion conversations. If it can be retrieved and translated, then it should, not out of nostalgia or reaction, but so that the law will better identify and protect the things that matter.
Richard W. Garnett
Richard W Garnett, Wrongful Discrimination? Religious Freedom, Pluralism, and Equality, in Religious Freedom & Gay Rights: Emerging Conflicts in the United States & Europe 67 (Timothy Shah, Thomas Farr & Jack Friedman eds., 2016).
It will be suggested in this chapter that this tension might be lessened, or at least better managed, if citizens and lawmakers thought more carefully about when and why "discrimination" is wrong and about the moral and constitutional limits on governments' efforts to prevent and remedy, in the name of equality, wrongful discrimination. It will also be proposed that what Pope Emeritus Benedict XVI and others have called "healthy secularity" provides a way of thinking about these matters that is attractive, promising, and appropriately appreciative of pluralism.
Mary Ellen O'Connell
The Limited Necessity of Resort to Force, in Imagining Law: Essays in Conversation with Judith Gardam 37 (Dale Stephens and Paul Babie eds., 2016).
"In this contribution to the volume in her honour, I propose to revisit her discussion of necessity in the jus ad bellum in large part to respond to recent interest in characterising necessity as a lawful basis for the resort to armed force." (37)
"The discussion begins with an overview of the general law on resort to force, then turns to a full focus on necessity. The principle of necessity is found in a number of international l aw categories with a distinctive meaning in each. Keeping the various meanings and histories separate is a challenge to scholars. In the area of resort to force, the principle of necessity is a restriction on force; it does not and cannot permit military force. In other categories of international law, necessity may provide a defence to otherwise unlawful action, such as imposition of a trade barrier, but not to the otherwise unlawful resort to military force. The conclusion here is that proposals to expand the right to use force by claiming necessity appear to be based on either a faulty understanding of necessity or faulty reasoning about the legal regime on the use of force. Gardam's analysis of over a decade ago remains solid and astute." (38)
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