DOCSLIB.ORG

The Dynamic Incorporation of Foreign Law and the Constitutional Regulation of Federal Lawmaking

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Dynamic Incorporation of Foreign Law and the Constitutional Regulation of Federal Lawmaking THE DYNAMIC INCORPORATION OF FOREIGN LAW AND THE CONSTITUTIONAL REGULATION OF FEDERAL LAWMAKING PAUL J. LARKIN, JR.* INTRODUCTION ............................................................ 338 I. THE LACEY ACT AND THE INCORPORATION OF FOREIGN LAW .................................................. 347 II. THE FEDERAL LAWMAKING PROCESS .................. 354 A. The Vesting of Legislative Authority in Congress: The Article I Bicameralism and Presentment Clauses ............................. 354 B. The Delegation of Legislative Authority to the Executive Branch: The Article II Appointments Clause ................................... 358 1. “Static” vs. “Dynamic” Delegation ...... 359 2. Delegating Federal Lawmaking Authority to Federal Agencies .............. 361 a. The Conventional Theory ............... 361 b. Two Unconventional Theories ....... 366 c. The Common Denominator ............ 369 3. Delegating Federal Lawmaking Authority to State Officers ..................... 372 III. THE CONSTITUTIONAL ISSUES RAISED BY THE LACEY ACT’S DELEGATION OF FEDERAL LAWMAKING AUTHORITY .................... 377 A. Article I Problems With the Lacey Act ....... 379 * Senior Legal Research Fellow, The Heritage Foundation; M.P.P., George Wash- ington University, 2010; J.D., Stanford Law School, 1980; B.A., Washington & Lee University, 1977. This article is an expanded version of the author’s 2013 testimo- ny before Congress. See infra note 28. The views expressed in this Article are the author’s own and should not be construed as representing any official position of The Heritage Foundation. I want to thank Albert W. Alschuler, Tom Buchanan, Paul Cassell, Thomas DiBiagio, C. Jarrett Dieterle, Andrew Kloster, and Joseph Luppino-Esposito for offering valuable comments on an earlier draft. Any remain- ing errors are mine. 338 Harvard Journal of Law & Public Policy [Vol. 38 1. The “Intelligible Principle” Requirement ............................................ 379 a. Laws Imposing Criminal Liability Must Be Readily Available to the Public .................................................. 381 b. Laws Imposing Criminal Liability Must Be Written in English ............. 387 c. Laws Imposing Criminal Liability Must Be Readily Understandable by the Average Person ..................... 388 d. Laws Imposing Criminal Liability Must Be Fixed and Precise .............. 390 2. The “Private Nondelegation Doctrine” . 401 a. The Supreme Court’s Early Private Nondelegation Doctrine Decisions: Eubank, Thomas Cusack, Roberge, Schechter Poultry, and Carter Coal ..... 403 b. The Supreme Court’s Later Private Nondelegation Doctrine Decisions: Currin, Rock Royal Coop., New Motor Vehicle Board, and Midkiff ................. 408 c. The Private Nondelegation Doctrine Today ................................ 409 3. The Role of Due Process as “the Law of the Land” ............................ 411 4. The Relevance of “the Law of the Land” to the Lacey Act ....................................... 423 B. Article II Problems With the Lacey Act ...... 431 IV. A POTENTIAL NECESSITY DEFENSE ...................... 434 V. CONCLUSION ......................................................... 435 INTRODUCTION The Constitution of the United States establishes an interrelat- ed system of national and state governments, each with its own separate authority that partially complements and partially overlaps the powers lodged in the other. The Constitution as- sumes that states have their own independent legal sovereignty No. 1] Dynamic Incorporation of Foreign Law 339 drawn from their own constitutions and possess a general “po- lice power” denied to the federal government.1 The Constitution creates the national government and grants it exclusive authori- ty to regulate some areas of responsibility, such as foreign af- fairs.2 In cases of a conflict between state and federal law, the default rule is that the latter will supplant the former.3 The result is that the Framers left the states and their regulatory authority in place except insofar as necessary to enable the new federal government to protect and regulate the nation as a whole and to prevent the type of destructive interstate economic warfare that had characterized government under the Articles of Confedera- tion.4 Yet, rather than always act as competitors, the federal and state governments have entered into a variety of cooperative en- deavors, such as the different national social insurance programs that have existed since the New Deal.5 “The great innovation of this design was that ‘our citizens would have two political capacities, one state and one feder- al, each protected from incursion by the other’—’a legal sys- tem unprecedented in form and design, establishing two or- ders of government, each with its own direct relationship, its 1. See U.S. CONST. amend. X (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respec- tively, or to the people.”); Jacobson v. Massachusetts, 197 U.S. 11, 25 (1905) (noting that each state possesses “the police power—a power which the State did not sur- render when becoming a member of the Union under the Constitution,” which in- cludes “such reasonable regulations established directly by legislative enactment as will protect the public health and the public safety”); Sturges v. Crowninshield, 17 U.S. (4 Wheat.) 122, 192–93 (1819); compare License Cases, 46 U.S. (5 How.) 504, 523– 25 (1847) (the states possess a general police power), with NFIB v. Sebelius, 132 S. Ct. 2566, 2577–78 (2012) (the federal government does not). 2. See U.S. CONST. art. I, § 10, cl. 1 (“No State shall enter into any Treaty, Alli- ance, or Confederation”). 3. See U.S. CONST. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”). 4. See Kidd v. Pearson, 128 U.S. 1, 21 (1888); THE FEDERALIST No. 7, at 60–61 (Alex- ander Hamilton) (Clinton Rossiter ed., 1961). 5. See Harold J. Krent, Fragmenting the Unitary Executive: Congressional Delegations of Administrative Authority Outside the Federal Government, 85 NW. U. L. REV. 62, 80–82 & nn.55–58 (1990) (collecting examples of joint federal-state programs, such as Medicaid). 340 Harvard Journal of Law & Public Policy [Vol. 38 own privity, its own set of mutual rights and obligations to the people who sustain it and are governed by it.’”6 Foreign governments play no role in that scheme. Just as no state grants another the right to intervene in its domestic poli- tics, nations do not cede sovereignty to each other. The pro- spect that the United States would grant a foreign government the legal authority to govern the people of this nation is absurd. It certainly would seem bizarre to most Americans to suggest that the world’s oldest surviving representative democracy should give to a foreign country the bedrock right that our an- cestors, families, and friends have purchased with blood, treasure, and honor for more than two centuries. History clear- ly looks askance on that possibility. The Declaration of Inde- pendence denounced King George III for “subject[ing] us to a Jurisdiction foreign to our Constitution, and unacknowledged by our Laws,” and for “taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Government.”7 The Colonists fought the American Revolution to overthrow foreign rule and to win the freedom to govern themselves.8 The Framers gathered in Philadelphia to form a national government for “ourselves and our Posterity.”9 The very first words in the Constitution declare that “We the People of the United States” adopted that document as the charter for that national government.10 The ordinary meaning of the term “republic” is a system of government in which the members of a polity rule themselves through elected represent- 6. Printz v. United States, 521 U.S. 898, 920 (1997) (quoting U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring)). 7. See THE DECLARATION OF INDEPENDENCE paras. 15, 23 (U.S. 1776). 8. See BRUCE ACKERMAN, WE THE PEOPLE: FOUNDATIONS (1993) (arguing that the actions of the nation’s founding generation established principles that help interpret the nature of our polity). 9. See Nicholas Quinn Rosenkranz, An American Amendment, 32 HARV. J.L. & PUB. POL’Y 475, 477–78 (2009) (“[F]oreign control over American law was a primary grievance of the Declaration of Independence. The Declaration’s most resonant pro- test was that King George had ‘subject[ed] us to a jurisdiction foreign to our consti- tution.’”) (footnote omitted). 10. See U.S. CONST. pmbl. (“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”). No. 1] Dynamic Incorporation of Foreign Law 341 atives.11 The Framers called this system “a Republican Form of Government.”12 Indeed, it is fair to say that the average mem- ber of the public likely would find the scenario of foreign rule utterly preposterous.13 Yet, Congress has enacted several
Load more

Recommended publications
  • Trump V. Mazars USA, LLP, --- F.3D ---, 2019 WL 5991603 (D.C
    No. In the Supreme Court of the United States DONALD J. TRUMP; THE TRUMP ORGANIZATION, INC.; TRUMP ORGANIZATION LLC; THE TRUMP CORPORATION; DJT HOLDINGS LLC; THE DONALD J. TRUMP REVOCABLE TRUST; AND TRUMP OLD POST OFFICE LLC, Applicants, v. MAZARS USA, LLP; COMMITTEE ON OVERSIGHT AND REFORM OF THE U.S. HOUSE OF REPRESENTATIVES, Respondents. On Application for Stay EMERGENCY APPLICATION FOR A STAY OF MANDATE PENDING THE FILING AND DISPOSITION OF A PETITION FOR A WRIT OF CERTIORARI Jay Alan Sekulow William S. Consovoy Stuart J. Roth Counsel of Record Jordan Sekulow Jordan M. Call CONSTITUTIONAL LITIGATION CONSOVOY MCCARTHY PLLC AND ADVOCACY GROUP, P.C. 1600 Wilson Blvd., Ste. 700 1701 Pennsylvania Ave, NW, Suite 200 Arlington, VA 22209 Washington, DC 20006 (703) 243-9423 (202) 546-8890 [email protected] [email protected] Patrick Strawbridge Stefan C. Passantino CONSOVOY MCCARTHY PLLC MICHAEL BEST & FRIEDRICH LLP Ten Post Office Square 1000 Maine Ave. SW, Ste. 400 8th Floor South PMB #706 Washington, D.C. 20024 Boston, MA 02109 (202) 747-9582 [email protected] [email protected] Counsel for Applicants PARTIES TO THE PROCEEDING AND RELATED PROCEEDINGS The parties to the proceeding below are as follows: Applicants are Donald J. Trump, President of the United States of America; Trump Organization, Inc.; Trump Organization; LLC, Trump Corporation; DJT Holdings, LLC; Donald J. Trump Revocable Trust; and Trump Old Post Office LLC. They were the plaintiffs in the district court and appellants in the court of appeals. Respondents are Mazars USA, LLP and Committee on Oversight and Reform of the U.S.
    [Show full text]
  • Line Item Veto and the Tax Legislative Process: a Futile Effort at Deficit Reduction, but a Step Toward Tax Integrity Gordon T
    Hastings Law Journal Volume 49 | Issue 1 Article 1 1-1997 Line Item Veto and the Tax Legislative Process: A Futile Effort at Deficit Reduction, But a Step Toward Tax Integrity Gordon T. Butler Follow this and additional works at: https://repository.uchastings.edu/hastings_law_journal Part of the Law Commons Recommended Citation Gordon T. Butler, Line Item Veto and the Tax Legislative Process: A Futile Effort at Deficit Reduction, But a Step Toward Tax Integrity, 49 Hastings L.J. 1 (1997). Available at: https://repository.uchastings.edu/hastings_law_journal/vol49/iss1/1 This Article is brought to you for free and open access by the Law Journals at UC Hastings Scholarship Repository. It has been accepted for inclusion in Hastings Law Journal by an authorized editor of UC Hastings Scholarship Repository. For more information, please contact [email protected]. The Line Item Veto and the Tax Legislative Process: A Futile Effort at Deficit Reduction, But a Step Toward Tax Integrity by GORDON T. BUTLER* Table of Contents Introduction ...................................................................... 2 I. The Problem of the Deficit and the Budget Process ............... 4 II. The Line Item Veto ...................................................... 21 A. 1995 Congressional Proposals ................................. 21 (1) House Bill 2 and "Enhanced Rescission" ................ 22 (2) Senate Bill 4 and "Separate Enrollment". ............... 24 B. The Line Item Veto of 1996 ...................................... 26 (1) The Act ....................................................... 26 (2) Constitutionality of the Line Item Veto .................. 31 (a) Separate Enrollment Form ............................... 41 (b) Enhanced Rescission Form ............................ 43 (3) Comparison with State Item Veto Authority ............... 52 (4) Critique of the Line Item Veto Act of 1996 ............. 56 m. Are "Tax Expenditures" Expenditures? .........
    [Show full text]
  • Clauses of the Constitution
    Short-hand references to some of the important clauses of the Constitution Article I • The three-fifths clause (slaves count as 3/5 of a citizen for purposes of representation in the House and “direct taxation” of the states) Par. 2, clause 3 • Speech and debate clause (Members of Congress “shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their attendance at the session of their respective Houses, and in going to and returning from the same; and for any speech or debate in either House, they shall not be questioned in any other place.”) Par. 6, clause 1 • Origination clause (revenue bills originate in the House) Par. 7, clause 1 • Presentment clause (bills that pass the House and Senate are to be presented to the President for his signature) Par. 7, clause 2 • General welfare clause (Congress has the power to provide for the common defense and general welfare of the United States) Par. 8, clause 1 • Commerce clause (“The Congress shall have power . To regulate commerce with foreign nations, and among the several states, and with the Indian tribes”) Par. 8, clause 3 • Necessary and proper (a/k/a elastic) clause (Congress has the power to make all laws that shall be necessary and proper for executing the powers that are enumerated elsewhere in the Constitution) Par. 8, clause 18 • Contracts clause (States may not pass any law that impairs the obligation of any contract) Par. 10, clause 1 Article II • Natural born citizen clause (must be a natural born citizen of the United States to be President) Par.
    [Show full text]
  • Redeeming the Welshed Guarantee: a Scheme for Achieving Justiciability Ethan J
    Fordham Law School FLASH: The Fordham Law Archive of Scholarship and History Faculty Scholarship 2002 Redeeming the Welshed Guarantee: A Scheme for Achieving Justiciability Ethan J. Leib Fordham University School of Law, [email protected] Follow this and additional works at: http://ir.lawnet.fordham.edu/faculty_scholarship Part of the Constitutional Law Commons Recommended Citation Ethan J. Leib, Redeeming the Welshed Guarantee: A Scheme for Achieving Justiciability, 24 Whittier L. Rev. 143 (2002-2003) Available at: http://ir.lawnet.fordham.edu/faculty_scholarship/91 This Article is brought to you for free and open access by FLASH: The orF dham Law Archive of Scholarship and History. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of FLASH: The orF dham Law Archive of Scholarship and History. For more information, please contact [email protected]. REDEEMING THE WELSHED GUARANTEE: A SCHEME FOR ACHIEVING JUSTICIABILITY ETHAN J. LEIB I. INTRODUCTION I am scavenging here.1 The feast of the republican revival in the law reviews is long over, 2 and one is more likely to encounter a commemorative symposium upon the anniversary of its death than a celebration of its continued vitality in legal scholarship. But I have * Law Clerk designate, the Honorable John M. Walker, Jr., Chief Judge, United States Court of Appeals for the Second Circuit. B.A., Yale; M. Phil, Cambridge; M.A., Yale; J.D./Ph.D Candidate, Yale. I wish to thank Bruce Ackerman, David Mayhew, David Cameron, and Daniel Doherty for their comments on earlier drafts. 1. See Kathryn Abrams, Law's Republicanism, 97 Yale L.
    [Show full text]
  • How the Guarantee Clause Can Address State Political Lockup
    REFEREES OF REPUBLICANISM: HOW THE GUARANTEE CLAUSE CAN ADDRESS STATE POLITICAL LOCKUP JARRET A. ZAFRAN* Our Government derives its legitimacy from the consent of the governed, generally measured through our elections. When incumbent powers create structures and rules for our politics that entrench the status quo and limit voter control, however, the legitimacy of that consent is tested. For more than fifty years, and in spite of the “political question doctrine,” the Supreme Court has adjudicated challenges to franchise restrictions, gerrymandering, ballot access provisions, and more. In doing so, the Court utilizes doctrinal frameworks that focus on harms to individual rights and not on structural harms to the competitiveness, accountability, and responsive- ness of our politics. This myopic view leaves systemic entrenchment and political lockup largely untouched. Scholars have identified these doctrinal deficiencies, but have not suggested an alternative textual basis for judicial intervention in these cases. This Note offers a potential solution in the Guarantee Clause. It argues that the Clause embodies a promise of popular sovereignty in the states. I contend that the Guarantee Clause can and should be revived to unburden the courts from the deficiencies of existing doctrine and provide a textual basis for addressing the problems of political malfunction. INTRODUCTION ................................................. 1419 I. POLITICAL ENTRENCHMENT AND DOCTRINAL DEFICIENCIES .............................. 1422 A. How Supreme Court Doctrine Enables Entrenchment .............................. 1423 B. Scholars Identify the Doctrinal Problem, but Do Not Offer a Textual Solution ................ 1429 II. THE FALL AND POTENTIAL RISE OF THE GUARANTEE CLAUSE ........................... 1434 A. The Unfortunate Abandonment of the Guarantee Clause and the Switch in Baker ..................... 1434 B.
    [Show full text]
  • Federal Program Bribery, New Federalism, and the Missing Federal Interest
    LINCOLN MEMORIAL UNIVERSITY LAW REVIEW __________________________________ VOLUME 4 FALL 2016 ISSUE 1 _____________________________________ FEDERAL PROGRAM BRIBERY, NEW FEDERALISM, AND THE MISSING FEDERAL INTEREST Jacob Baggett1 I. INTRODUCTION In October of 1983, Donald V. Morano stood before the United States Supreme Court and argued his position in Dixson v. United States.2 In his thick New England accent, he argued that his clients, city officers responsible for the management and expenditure of federal funds, were not “public officials” within the definition of a federal bribery statute, 18 U.S.C. § 201, which prohibits offering something of value to a public official with the illicit intent of influencing an 1 Jacob Baggett, Juris Doctor (2015) and former Editor-in-Chief of the Lincoln Memorial University Law Review. The author would like to thank Assistant Professors Akram Faizer and Melanie Reid for their substantive knowledge, valuable criticism, and unwavering encouragement. 2 465 U.S. 482 (1984) (holding that executives of private, nonprofit corporation having operational responsibility for administration of federal housing grant program within city under terms of subgrant from city were “public officials” within meaning of federal bribery statute, and thus were subject to prosecution under statute). 112 4 LMU LAW REVIEW (2016) official act. If his clients were not public officials within the meaning of the statute, then they could not be convicted under the statute. At a superficial glance, a question of this nature would appear immaterial. The defendants were criminals who misappropriated funds for an amount of personal gain. Why care whether federal or state law pursued them? They were malefactors; they deserved punishment; (seemingly) end of story.
    [Show full text]
  • Legislative Department
    ARTICLE I LEGISLATIVE DEPARTMENT CONTENTS Page Section 1. Legislative Powers ................................................................................................... 63 Separation of Powers and Checks and Balances ............................................................. 63 The Theory Elaborated and Implemented ................................................................ 63 Judicial Enforcement .................................................................................................. 65 Bicameralism ...................................................................................................................... 70 Enumerated, Implied, Resulting, and Inherent Powers .................................................. 71 Delegation of Legislative Power ........................................................................................ 73 Origin of the Doctrine of Nondelegability ................................................................. 73 Delegation Which Is Permissible ............................................................................... 75 Filling Up the Details .......................................................................................... 76 Contingent Legislation ........................................................................................ 76 The Effective Demise of the Nondelegation Doctrine ............................................... 78 The Regulatory State ........................................................................................... 78
    [Show full text]
  • Seila Law LLC V. CFPB
    No. 19-7 In the Supreme Court of the United States SEILA LAW LLC, PETITIONER v. CONSUMER FINANCIAL PROTECTION BUREAU ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT BRIEF FOR THE RESPONDENT NOEL J. FRANCISCO Solicitor General Counsel of Record MARY MCLEOD JOSEPH H. HUNT General Counsel Assistant Attorney General JOHN R. COLEMAN MARK B. STERN Deputy General Counsel DANIEL AGUILAR Attorneys STEVEN Y. BRESSLER Assistant General Counsel Department of Justice Consumer Financial Washington, D.C. 20530-0001 Protection Bureau [email protected] Washington, DC 20552 (202) 514-2217 QUESTION PRESENTED Whether 12 U.S.C. 5491(c)(3) violates the separation of powers by prohibiting the President from removing the Director of the Consumer Financial Protection Bu- reau except for “inefficiency, neglect of duty, or malfea- sance in office.” (I) ADDITIONAL RELATED PROCEEDINGS United States District Court (C.D. Cal.): Consumer Financial Protection Bureau v. Seila Law, LLC, No. 17-cv-1081 (Aug. 25, 2017) United States Court of Appeals (9th Cir.): Consumer Financial Protection Bureau v. Seila Law LLC, No. 17-56324 (May 6, 2019) (II) TABLE OF CONTENTS Page Opinions below .............................................................................. 1 Jurisdiction .................................................................................... 1 Statement ...................................................................................... 1 Discussion .....................................................................................
    [Show full text]
  • Supreme Court of the United States ______
    No. ______ In the Supreme Court of the United States ________________ ROBERT A. RUCHO, et al., Appellants, v. COMMON CAUSE, et al., Appellees. ________________ On Appeal from the United States District Court for the Middle District of North Carolina ________________ JURISDICTIONAL STATEMENT ________________ PHILLIP J. STRACH PAUL D. CLEMENT MICHAEL D. MCKNIGHT Counsel of Record OGLETREE, DEAKINS, ERIN E. MURPHY NASH, SMOAK & ANDREW C. LAWRENCE STEWART, P.C. KIRKLAND & ELLIS LLP 4208 Six Forks Road 655 Fifteenth Street, NW Suite 1100 Washington, DC 20005 Raleigh, NC 27609 (202) 879-5000 [email protected] Counsel for Appellants Robert A. Rucho, David R. Lewis, Timothy K. Moore, and Philip E. Berger October 1, 2018 QUESTIONS PRESENTED Earlier this year, while Gill v. Whitford was pending before this Court, a three-judge district court invalidated North Carolina’s 2016 congressional districting map as a partisan gerrymander. After Gill was handed down, this Court vacated that decision and remanded for further consideration in light of Gill. That period of reconsideration did not last long. In the decision below, the district court largely readopted its previous reasoning and became the first post-Gill court to divine a justiciable test—in fact, four tests—and invalidate a legislatively enacted map as a partisan gerrymander. Although plaintiffs here, like those in Gill, sought to vindicate only generalized partisan preferences, the court concluded they had standing. The court then found justiciable standards for partisan gerrymandering claims under the Equal Protection Clause, the First Amendment, and (uniquely in the history of redistricting litigation) the Elections Clauses of Article I.
    [Show full text]
  • Constitutional Law a Context and Practice Casebook
    00a schwartz ringhand final 8/1/13 10:03 AM Page iii Constitutional Law A Context and Practice Casebook Revised Printing David S. Schwartz University of Wisconsin Law School Lori A. Ringhand University of Georgia School of Law Carolina Academic Press Durham, North Carolina 00a schwartz ringhand final 8/1/13 10:03 AM Page iv Copyright © 2013 David S. Schwartz, Lori A. Ringhand All Rights Reserved Revised Printing ISBN 978-1-61163-527-0 LCCN 2013946821 Carolina Academic Press 700 Kent Street Durham, North Carolina 27701 Telephone (919) 489-7486 Fax (919) 493-5668 www.cap-press.com Printed in the United States of America 00a schwartz ringhand final 8/1/13 10:03 AM Page v We dedicate this book to John Kidwell. John was our teacher, mentor, colleague and friend. He inspired us in so many ways, and was taken from us much too soon. 00a schwartz ringhand final 8/1/13 10:03 AM Page vi 00a schwartz ringhand final 8/1/13 10:03 AM Page vii Summary of Contents Introduction: Constitutional Litigation and Analysis 3 Part One: Legislative Power and Federalism 47 Chapter 1 • Legislative Power 51 Chapter 2 • Limitations on State Powers 263 Part Two: Separation of Powers 317 Chapter 3 • Executive Power 319 Chapter 4 • Other Separation-of-Powers Issues 509 Part Three: Judicial Power 559 Chapter 5 • Judicial Review 561 Chapter 6 • Justiciability 613 Part Four: Due Process, Fundamental Rights, and Equal Protection 657 Chapter 7 • Substantive Due Process 661 Chapter 8 • Equal Protection 769 Part Five: The First Amendment 935 Chapter 9 • Freedom of Speech 937 Chapter 10 • Religious Freedom 1073 Appendix • The Constitution of the United States of America 1127 Index 1143 vii 00a schwartz ringhand final 8/1/13 10:03 AM Page viii 00a schwartz ringhand final 8/1/13 10:03 AM Page ix Contents List of Diagrams and Figures xix Table of Cases xxi Series Editor’s Preface xxxi Acknowledgments xxxiii Introduction: Constitutional Litigation and Analysis 3 A.
    [Show full text]
  • Berkeley Technology Law Journal
    BERKELEY TECHNOLOGY LAW JOURNAL VOLUME 25 NUMBER 3 SYMPOSIUM 2010 TABLE OF CONTENTS SYMPOSIUM: COPYRIGHT @ 300 KEYNOTE ADDRESS: HAPPY BIRTHDAY STATUTE OF ANNE: THE DANCE BETWEEN THE COURTS AND CONGRESS.. .............................. 1145 Hon. M. MargaretMcKeown THE COPYRIGHT PRINCIPLES PROJECT: DIRECTIONS FOR REFORM................... 1175 Pamela Samuelson and Members of The CPP THE UNTOLD STORY OF THE FIRST COPYRIGHT SUIT UNDER THE STATUTE OF ANNE IN 1710 ........................................... 1247 H. Tomds Gdme-Arostegui ALL CHANGE FOR THE DIGITAL ECONOMY: COPYRIGHT AND BUSINESS MODELS IN THE EARLY EIGHTEENTH CENTURY....................... 1351 IsabellaAlexander THE INVENTION OF COMMON LAW PLAY RIGHT.......... ............... 1381 Jessica Litman THE ADVENTURES OF THE STATUTE OF ANNE IN THE LAND OF UNLIMITED POSSIBILITIES: THE LIFE OF A LEGAL TRANSPLANT ............ 1427 Oren Bracha "THE SOLE RIGHT... SHALL RETURN TO THE AUTHORS": ANGLO- AMERICAN AUTHORS' REVERSION RIGHTS FROM THE STATUTE OF ANNE TO CONTEMPORARY U.S. COPYRIGHT ....................... ........... 1475 Lionel Bently & Jane C Ginsburg SUBSCRIBER INFORMATION The Berkeley Technolog Law Journal (ISSN1086-3818), a continuation of the High Technolog Law journal effective Volume 11, is edited by the students of the University of California, Berkeley School of Law (Boalt Hall), and published four times each year (May, August, November, February) by the Regents of the University of California, Berkeley. Journal Publications, School of Law. Periodicals Postage Rate Paid at Berkeley, CA 94704-9998, and at additional mailing offices. POSTMASTER: Send address changes to Journal Publications, 2850 Telegraph Avenue, Suite 561 #7220, Berkeley, CA 94705-7220. Correspondence. Address all correspondence regarding subscriptions, address changes, claims for non-receipt, single copies, advertising, and permission to reprint to Journal Publications, 2850 Telegraph Avenue, Suite 561 #7220 Berkeley, CA 94705-7220; (510) 643-6600; JournalPublications@ law.berkeley.edu.
    [Show full text]
  • The Constitutional Compromise to Guarantee Education
    Stanford Law Review Volume 70 March 2018 ARTICLE The Constitutional Compromise to Guarantee Education Derek W. Black* Abstract. Although the U.S. Supreme Court refused to recognize education as a fundamental right in San Antonio Independent School District v. Rodriguez, the Court in several other cases has emphasized the possibility that the Constitution might afford some protection for education. New litigation is attempting to fill that void. This litigation comes at a perfect time. Segregation, poverty, and achievement gaps are all rising, while state courts and federal agencies have recently retreated from enforcing educational equity. New litigation, however, has yet to offer a theory of why the Constitution should protect students’ educational rights, relying instead on the fact that the Court has consistently emphasized the importance of education. Prompting a significant doctrinal shift to protect education will require more than laudatory dicta. It will require a compelling affirmative constitutional theory. This Article offers that theory. It demonstrates that the Framers of the Fourteenth Amendment specifically intended to guarantee education as a right of state citizenship. This simple concept was obscured by the unusually complex ratification of the Amendment. First, the Amendment required the assent of Confederate states that were no longer part of the Union. Second, Congress expressly indicated that it would not readmit those states to the Union until they ratified the Fourteenth Amendment and rewrote their state constitutions. Third, education was part of the deal: Congress permitted states to retain discretion over education but expected state constitutions to affirmatively guarantee education. Through this process, education became an implicit right of the Fourteenth Amendment’s Citizenship Clause.
    [Show full text]