U.S. Constitutional Law: Interpretation & Judicial Review eJournal最新文献

{"title":"Executive Benefits Insurance Agency V. Arkison: Does Party Consent Render Bankruptcy Court Adjudication Constitutionally Valid?","authors":"Elizabeth Gibson, Jonathan M. Landers","doi":"10.2139/SSRN.2365333","DOIUrl":"https://doi.org/10.2139/SSRN.2365333","url":null,"abstract":"This paper is a report of the National Bankruptcy Conference. It analyzes one of the issues currently before the Supreme Court in the case of Executive Benefits Insurance Agency v. Arkison — the constitutional effectiveness of party consent to adjudication by a non-Article III judge. The paper examines how the Supreme Court’s precedents should guide the Court’s analysis of that issue and discusses the negative impact a decision rejecting consent could have on the operation of the bankruptcy system, adjudication of civil actions by magistrate judges, and the workload of the district courts. After reviewing past decisions in which the Court or individual justices suggested that party consent enables bankruptcy courts to decide matters that Article III would otherwise prevent them from adjudicating, this paper examines the Court’s leading precedent on the constitutional effect of consent to non-Article III adjudication — the 1986 decision in Commodity Futures Trading Commission v. Schor. The paper contends that the Court’s analysis in Schor supports the constitutionality of bankruptcy court adjudication of private rights with the parties’ consent, notwithstanding the decision of three federal circuits to the contrary. The paper concludes with a discussion of the practical importance of the Court’s decision of the consent issue in Arkison. It provides examples of the delays and added costs that would result from a bifurcation of bankruptcy adjudication between bankruptcy and non-bankruptcy courts. It also notes the likely effect of the decision on magistrate judges and discusses the impact that a decision rejecting consent to adjudication by bankruptcy and magistrates judges would have on the workload of district courts.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"156 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132349885","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Elderly Healthcare in the Face of Budget Constraint","authors":"R. Perlingeiro","doi":"10.2139/SSRN.2299009","DOIUrl":"https://doi.org/10.2139/SSRN.2299009","url":null,"abstract":"A versao em portugues deste texto esta disponivel em: http://ssrn.com/abstract=2441607.The English version of this text is available at: http://ssrn.com/abstract=2299009.La version en espanol de este articulo esta disponible en: http://ssrn.com/abstract=2456003.Porgutuese Abstract: L’autore contestualizza gli effetti della realta della finanza pubblica nell’ambito della creazione (legislativa) e della giustiziabilita dell’assistenza sanitaria agli anziani. Relaziona gli aspetti economici ai conflitti originati dalla discrepanza tra, da una parte, istanze e aspettative individuali, e, dall’altra, l’assistenza sanitaria conforme consti ai sensi di legge, di bilancio pubblico di previsione e di procedimenti amministrativi. Il testo, fondandosi sul principio dello Stato di Diritto, considera che l’insufficienza di mezzi finanziari e di risorse pubbliche di bilancio, benche implichi un rischio di limitazione della tutela giurisdizionale dei diritti, non configura necessariamente un impedimento all’esigibilita dell’assistenza sanitaria, non risultando ostativo neppure in relazione all’esercizio di qualsivoglia altro diritto soggettivo creato dalla legge. Infine, l’autore rileva la necessita di una piu profonda comprensione dell’espressione un minimo esistenziale (Existenzminimum) in merito alla cura della salute degli anziani, assumendo quale punto di partenza la realta finanziaria degli Stati, in modo che questi ultimi siano obbligati a fornire esclusivamente prestazioni possibili, che non vadano ad incidere negativamente sulla societa, ne la pregiudichino in maniera alcuna.English Abstract: The author contextualises the effects of public funding constraints on the creation of elderly healthcare and on potential for its judicial review, examining the relationship between economic issues and the conflicts that arise because the healthcare that is actually provided for by law and covered by the public budget and administrative procedures falls short of individuals’ expectations and demands. The paper observes that the shortage of funds and public budgetary resources, although it creates a risk of a restricted scope of judicial protection of rights, is not necessarily an obstacle to judicial review of healthcare cases, nor does it prevent the exercise of any other statutory rights; to admit otherwise, would be an insult to the Rule of Law. Finally, the paper points out the need for a better understanding of the expression the “existential minimum” of healthcare for the elderly, as guidance for legislators, based on the financial realities of nations in such a way as to make commitments only to such services as are actually possible, without generating frustrations in society.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"416 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-07-25","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116110985","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Put the Town on Notice: School District Liability and LGBT Bullying Notification Laws","authors":"Y. Pierce","doi":"10.36646/mjlr.46.1.put","DOIUrl":"https://doi.org/10.36646/mjlr.46.1.put","url":null,"abstract":"Congress could mitigate the problem of lesbian, gay, bisexual, and transgender (LGBT) student bullying by requiring that teachers and school officials report all bullying incidents to their school district administrators. Many school districts are not aware of the prevalence of LGBT bullying and the extent to which each school protects, or fails to protect, its LGBT students compared to other harassed students. LGBT students often encounter difficulty demonstrating that their school district has a policy or custom of deliberate indifference toward their equal treatment when a school does not equally protect an LGBT student from peer-to-peer bullying because of the student's LGBT status. This Note proposes a federal notification law requiring teachers and school officials to report incidents of bullying to school district administrators. This requirement would enable LGBT students and their allies to pressure school districts for equal protection and to litigate if unequal treatment persists. A notification law would provide a basis for such action because it would create direct evidence that the school district was aware of the problem-an essential element in an equal protection cause of action.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-01-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130725749","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Classical American State and the Regulation of Morals","authors":"Herbert Hovenkamp","doi":"10.2139/SSRN.2041942","DOIUrl":"https://doi.org/10.2139/SSRN.2041942","url":null,"abstract":"The United States has a strong tradition of state regulation that stretches back to the Commonwealth ideal of Revolutionary times and grew steadily throughout the nineteenth century. But regulation also had more than its share of critics. A core principle of Jacksonian democracy was that too much regulation was for the benefit of special interests, mainly wealthier and propertied classes. The ratification of the Fourteenth Amendment after the Civil War provided the lever that laissez faire legal writers used to make a more coherent Constitutional case against increasing regulation. How much they actually succeeded has always been subject to dispute. Only a small portion of regulations were actually struck down by the courts on substantive due process grounds. But looking at sheer numbers hardly tells the story. The provisions that were struck down went to the heart of emerging class conflicts, particularly capitalist-employee relationships, including laws that established minimum wages or regulated working conditions. In general, if the courts saw a regulation as legitimately addressing a subject of “health, safety or morals” they let it stand. However, if they viewed it as an attempt to alter the balance between social classes, they were much more likely to strike it down. The ideology of regulation’s critics shifted 180 degrees over the course of the nineteenth century. In the 1820s and 1830s the principal beneficiaries of regulation were thought to be the established classes who stood to gain from regulation that protected their investment. The loose affiliation of diverse outsiders that constituted Jacksonian democracy largely saw freedom from economic regulation as a device for opening up markets. By contrast, regulation of health, safety and morals remained relatively uncontroversial. Increasingly after the Gilded Age the rhetoric of regulation began to point at American business as the culprit in need of regulation, and laborers and to a lesser extent consumers as its beneficiaries. As a result the task of defending greater regulation fell to the Progressive coalition, while the more propertied classes tended to oppose it. Once again, however, Progressives as a group remained quite willing and even enthusiastic to regulate health, safety, and morals. The great legal treatise writers of the Gilded Age – Thomas M. Cooley, John Dillon, and Christopher Tiedeman – perpetuated these views. While they favored severe restrictions on government control of the economy generally, they consistently made exceptions for economic regulations that legitimately supported the state’s oversight of health, safety and morals. For example, they approved of decisions that permitted distilleries that were lawful when erected to be shut down without compensation, the regulation to oblivion of lotteries that were lawful when created, or laws that reduced the hours of labor by forcing businesses to close on Sunday even as the courts were striking down more general t","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"65 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-05-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129734444","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Brief Amici Curiae of Prescription Policy Choices, Professors of Law, and Professors of Health Policy in Support of Petitioners on the Minimum Coverage Provision in Department of Health & Human Services v. State of Florida","authors":"Abigail R. Moncrieff, K. Outterson, Kyle Thomson, D. Arnold, Julia Grace Mirabella, Wang Hao","doi":"10.2139/SSRN.2070625","DOIUrl":"https://doi.org/10.2139/SSRN.2070625","url":null,"abstract":"One purpose of the individual mandate is to eliminate the market for self-insured healthcare transactions. It is well-established in this Court’s precedent that the elimination of an interstate commercial market is a constitutionally legitimate end for Congress to pursue under the Commerce Clause. Under the Necessary and Proper Clause, Congress may use any reasonably adapted means to accomplish constitutionally legitimate ends. The individual mandate is not only reasonably adapted but is quite elegant as a means of eliminating the market for self-insured healthcare transactions. The provision effectively encourages individuals to shift from the inefficient market for self-insured care to its more efficient substitute market for fully-insured care. The question presented is whether the minimum coverage provision is a valid exercise of Congress’s powers under Article I of the Constitution.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-05-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130395957","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Congressional Silence and the Statutory Interpretation Game","authors":"Paul J. Stancil","doi":"10.2139/ssrn.2014793","DOIUrl":"https://doi.org/10.2139/ssrn.2014793","url":null,"abstract":"This Article explores the circumstances under which the federal legislative apparatus may be unable to respond to a politically objectionable statutory interpretation from the Supreme Court. The Article builds upon existing economic models of statutory interpretation, for the first time incorporating transaction costs into the analysis. The Article concludes by identifying recent real-world disputes in which transaction costs constrained Congress and the President from overriding the Court.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"124 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-03-02","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132577727","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Juristocracy in the Americas? Courts and Relationship Equality Policy Innovation from Canada to Argentina","authors":"Jason Pierceson","doi":"10.2139/ssrn.1658598","DOIUrl":"https://doi.org/10.2139/ssrn.1658598","url":null,"abstract":"This paper examines the role of courts in the development of policies recognizing same-sex relationships in North and South America. Ran Hirschl (2004) has noted that the rise of judicial policy making in nations is often the result of political actors empowering, directly or indirectly through new constitutions, judiciaries out of a specific, often self-serving, political goal. Evidence of this dynamic exists in some American jurisdictions, such as Canada, Brazil and Colombia. However, despite increasingly active judiciaries is the Americas, change, or resistance to change, is still largely a product of non-judicial factors. Policy advances in most nations, such as Mexico, Argentina, and Uruguay, have been led by legislatures, parties, interest groups, and executives. In most countries in the Americas, courts are weak or nonexistent actors. The issue of relationship equality largely remains one of “real�? politics, where political parties, interest groups, presidents, legislators matter more than judges. While there may be a chipping away at judicial deference and restraint in civil law regimes, this norm is still a powerful dynamic in the Americas outside of the common law jurisdictions of the North.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-08-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129690277","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Corporation as a 'Real' Constitutional Person","authors":"Jonathan A. Marcantel","doi":"10.2139/ssrn.1620993","DOIUrl":"https://doi.org/10.2139/ssrn.1620993","url":null,"abstract":"For two centuries, jurists and corporate scholars have struggled with creating a singular, global definition explaining the essence of corporate existence and its relationship to the law. This challenge has been particularly difficult within the constitutional realm, where small movements in doctrinal theory have the potential for wide impact. Earlier this year, the United States Supreme Court reignited that discussion when it delivered the opinion in Citizens’ United v. FEC. Although the opinion facially decided the constitutionality of a nuanced provision of campaign finance reform, the Court held that corporations are protected by the First Amendment, and in the process, reinvigorated the perennial, trifurcated break in corporate doctrinal discussion between concessionary theorists, aggregate theorists, and real entity theorists. More specifically, the majority, invoking the “original understanding” of the Constitution, appears to have adopted a real entity theory of the corporation. Nevertheless, the majority provided little contemporaneous documentary evidence to support its position - a gap that exists in the academic literature as well. This Article fills a portion of that gap by analyzing documents contemporaneous to the drafting and ratification of the Constitution. Specifically, this Article defines the contemporaneous meaning of the words “people,” “person,” and “citizen” - the entities the Constitution explicitly attempts to protect - by examining the manner the drafters and ratifiers used those words during the Constitutional Convention, the ratification debates, the debates surrounding the Bill of Rights, and the debates surrounding the Fourteenth Amendment. Using those documents as the foundation for the analysis, this Article then argues that the manner the drafters and ratifiers used those terms during the debates is inconsistent with the concept of corporations as real constitutional entities. Part II of this Article briefly discusses each of the traditional three constitutional theories of the corporation, beginning with concessionary theory and then moving to both aggregate theory and real entity theory. This Part additionally discusses the Court’s decision in Citizens United and the majority’s holding that corporations are real entities for constitutional purposes. Part III analyzes whether the majority’s decision is consistent with documents contemporaneous to the Constitution and its amendments in four sections. Section one discusses the language contained within the Constitution and more specifically the entities explicitly entitled to protection - “people,” “persons,” and “citizens.” This section then analyzes the language used during the Constitutional Convention, the language used in the Federalist Papers, the language used in contemporaneous state organic documents, and the definitions in contemporaneous dictionaries to determine the meaning of those words at the time the Constitution was drafted. Section two again foc","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"138 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-06-05","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124801153","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Responding to Kelo v. New London: Avoiding Intrinsic Injustice by Paying a Fairer Price","authors":"J. A. Humbach","doi":"10.2139/SSRN.1411169","DOIUrl":"https://doi.org/10.2139/SSRN.1411169","url":null,"abstract":"The reason why some exercises of eminent domain feel so much like theft is that the accepted constitutional definition of \"just compensation\" systematically under-compensates certain categories of private owners. These categories particularly include residential owners as well as others who do not hold their property for primarily commercial or investment purposes. In the eyes of these owners, the principal significance of their property is not its commercial asset value as a commodity (or \"fair market value\") but, rather, its personal and subjective use value. The \"willing seller\" test used to measure constitutional compensation often falls far short of the mark because these residential and other owners are not willing sellers, at least not at prices anything like fair market value. Often, moreover, realistic market conditions make it impossible for these owners to replace what they lose with the money they receive as \"just compensation.\" The resulting under-compensation for their real value - subjective use value - naturally results in a painful pinch and public outcry. This short piece proposes a fairer approach to pricing as an alternative to recent procrustean calls to cut down the power of eminent domain. It aim is to offer a more balanced possibility of preserving the salutary features of eminent domain while avoiding its manifest injustices.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"49 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124331434","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"In Search of 'Laissez-Faire Constitutionalism'","authors":"M. Lindsay","doi":"10.2139/SSRN.1723402","DOIUrl":"https://doi.org/10.2139/SSRN.1723402","url":null,"abstract":"This article is a response to Professor Jed Shugerman’s Economic Crisis and the Rise of Judicial Elections and Judicial Review, HARVARD LAW REVIEW (2010). Professor Shugerman argues that the widespread adoption of judicial elections in the 1850’s and the embrace by the first generation of elected judges of countermajoritaran rationales for judicial review helped to effect a transition from the active, industry-building state of the early nineteenth century to the \"laissez-faire constitutionalism\" of the Lochner era. This response argues that Professor Shugerman overstates the causal relationship between the elected judiciary’s robust constitutional defense of \"vested rights\" and the iconic, if unrepresentative, \"substantive due process\" of the late nineteenth and early twentieth centuries. If we are to draw a line of historical causation between the mid-century vested rights decisions and the so-called \"laissez-faire constitutionalism\" of the Lochner era, it must necessarily run through the watershed historical events of slave emancipation and the industrialization of labor, as well as the transformative constitutional changes set in motion by the Reconstruction amendmnets. To the exent that Lochner-era courts did constitutionalize economic liberty in a manner that warrants the label \"laissez-faire constitutionalism,\" they were inspired less by the \"Jacksonian\" vested rights jurisprudence that preceded the Civil War than by the constitutional and industrial revolutions that followed it.","PeriodicalId":205352,"journal":{"name":"U.S. Constitutional Law: Interpretation & Judicial Review eJournal","volume":"33 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-03-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116885397","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}