LSN: Judicial Review (Topic)最新文献

{"title":"Divisiveness, National Narratives, and the Establishment Clause","authors":"Gilad Abiri","doi":"10.58948/2331-3528.2014","DOIUrl":"https://doi.org/10.58948/2331-3528.2014","url":null,"abstract":"The Supreme Court habitually justifies the Establishment Clause as a means to prevent political division, protect the civil peace, and forestall citizen alienation. In spite of this popularity among the judiciary, legal scholars have emphatically rejected the political division theory. They state that religion is not especially divisive, and that even if it was, there is no reason to think non-establishment will prevent such political harm. This rejection relies on the misconception that the validity of the political division theory requires that all forms of religion must foment civil strife. This is a mistake. Often, laws apply to a wider category than to the core of what they seek to address. If this is the case, then even if non-establishment comes to merely prevent an especially erosive type of state and religion involvement, it may still be a valid and useful theory.<br><br>In this Article, I argue that the political division theory is compelling when it is applied to a religion which seeks to collapse the distinction between politics and religion. To achieve this, I portray one such form of establishment of religion: American Christian Nationality, an ideology which sees the United States as having deep religious meaning and promotes Christianity as the central attribute of American identity. This Article will show that the combination between nationality and religion is uniquely divisive because it promotes a religious-based exclusionary understanding of who is a “real” American citizen. Many of the canonical Establishment Clause doctrines seem tailored to protect against government involvement in such religious movements.","PeriodicalId":227775,"journal":{"name":"LSN: Judicial Review (Topic)","volume":"92 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-12-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132358708","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":"Planes, Trains and Trucks: Applying the Market Participant Exception to the Government as Proprietary Owner of Hubs of Commerce","authors":"Louis Cholden-Brown","doi":"10.2139/ssrn.3304351","DOIUrl":"https://doi.org/10.2139/ssrn.3304351","url":null,"abstract":"Once more, an aggrieved industry has sought the intervention of the Supreme Court to protect them from the City of Los Angeles. Once more, the Ninth Circuit has expansively read the ambit of a state’s authority to make marketplace choices and the presumption against preemption that protects such policies. This article takes the opportunity of this most recent cert petition challenging the requirement imposed by Los Angeles International Airport (LAX) that airport employers exact labor peace agreements with their workers to revisit the history of the market participant doctrine, which immunizes state proprietary action from (some) constitutional and statutory preemption, as well as its recent expansion beyond the Dormant Commerce Clause and labor law contexts. The presumption against preemption and the goal of even-handedness that underly the doctrine has fostered its expansion far beyond the traditional conception of a procurement and, this article argues, properly has come to include the consideration of non-pecuniary goals in the distribution of funds and leasing of space. While government institutions play an important role in determining access to markets, in the absence of the abuse of clearly unique tools such as criminal and civil sanction, creating distinctions amongst entities based on either size or function undermines the goals of the doctrine, and empowers private actors over the state.","PeriodicalId":227775,"journal":{"name":"LSN: Judicial Review (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-10-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130256265","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":"Commentary on Burwell v. Hobby Lobby","authors":"Suzanne A. Kim","doi":"10.2139/ssrn.3695127","DOIUrl":"https://doi.org/10.2139/ssrn.3695127","url":null,"abstract":"Burwell, et al., v. Hobby Lobby Stores, Inc., et al., decided in 2014, broke ground in its unprecedented articulation of religious person-hood rights for commercial entities, posing challenges to reproductive justice and the foundations of anti-discrimination law. The case addressed whether the Affordable Care Act’s (ACA) contraceptive mandate should yield to a Religious Freedom Restoration Act (RFRA) claim by for-profit corporations objecting on religious belief grounds to providing health insurance coverage for contraception to employees. Concluding that the corporations seeking exemptions were “persons” for free exercise purposes under RFRA, the Court held that U.S. Department of Health and Human Services (HHS) regulations interpreting the ACA contraceptive coverage requirement violated RFRA by substantially burdening the exercise of religion. \u0000 \u0000The Hobby Lobby re-write by Anthony Kreis underscores the far-reaching implications of the original decision by connecting the reproductive health access questions at stake to the day to day conditions in women’s lives and broadly systemic impacts of the Hobby Lobby decision for marginalized communities. In so doing, the rewritten opinion sets the stage for deeper consideration of Hobby Lobby’s challenge to the health and well-being of women, communities of color, lower-income communities, and other marginalized groups.","PeriodicalId":227775,"journal":{"name":"LSN: Judicial Review (Topic)","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132659415","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 First Congressional Debate on Public Carry and What It Tells Us about Firearm Regionalism","authors":"M. Frassetto","doi":"10.2139/SSRN.3041396","DOIUrl":"https://doi.org/10.2139/SSRN.3041396","url":null,"abstract":"In the aftermath of District of Columbia v. Heller, a prominent issue remains unresolved: whether, or to what extent, the Second Amendment protects an individual right to keep and bear arms outside of the home. This Article explores this unresolved issue through a newly uncovered source, the congressional debates surrounding the District of Columbia’s public carry law in the 1890s.<br><br>These debates provide new insights into the understanding of the right to keep and bear arms in the years following the drafting and ratification of the Fourteenth Amendment. Two conclusions can be drawn from the debate. First, there was no national consensus regarding a right to public carry under the Second Amendment. This is important because the Supreme Court in Heller stated that the Second Amendment “codified venerable, widely understood liberties.” Second, the Senators’ and Congressmen’s varied positions on the Second Amendment and the permissible scope of public carry regulations generally fell into regional patterns. Representatives of states in the North and West supported a more limited public carry right, while those representing states in the Deep South, with some exceptions, supported a broader Second Amendment right. Because the Northern Republicans were the ideological force behind the drafting and ratification of the Fourteenth Amendment, their restrictive view of public carry should be given special weight when determining the constitutionality of contemporary public carry regulations.","PeriodicalId":227775,"journal":{"name":"LSN: Judicial Review (Topic)","volume":"45 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-09-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128173336","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":"Judicial Review and Money Bills","authors":"Pratik Datta, S. Malhotra, Shivangi Tyagi","doi":"10.2139/SSRN.2939835","DOIUrl":"https://doi.org/10.2139/SSRN.2939835","url":null,"abstract":"Under the Constitution of India, for a bill to be enacted into a law, it has to be approved by both Houses of the Parliament - the Lower House (Lok Sabha) and the Upper House (Rajya Sabha). There is one exception to this general rule. A bill certified as a `money bill' by the speaker of the Lower House can be enacted into a law by the Lower House alone, without any approval from the Upper House. The scope of what could constitute a `money bill' is defined in the Constitution of India. Yet, it is possible that a bill which does not fall within the scope of this definition could be incorrectly certified as a `money bill' by the speaker and enacted into a law without the approval of the Upper House. The Constitution of India categorically states that `if any question arises whether a Bill is a Money Bill or not, the decision of the Speaker of the House of the People thereon shall be final'. Does this provision imply that the Indian Supreme Court cannot review whether the speaker's certification of a bill as a `money bill' is correct or not? And if it is actually incorrect, can the Supreme Court not strike down such a law for being unconstitutional? These questions are of immense contemporary relevance in India and form the central research theme of this article.","PeriodicalId":227775,"journal":{"name":"LSN: Judicial Review (Topic)","volume":"27 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122241148","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":"Accommodations, Discounts, and Displacement: The Variability of Rights as a Norm of Federalism(s)","authors":"J. Resnik","doi":"10.2139/SSRN.2919397","DOIUrl":"https://doi.org/10.2139/SSRN.2919397","url":null,"abstract":"Normative conflict is a fixture of federalism, shaping affiliations by law and constitutionally committed to legal pluralism. And, despite the frequently found pre-commitments to structural allocations of authority, power is regularly renegotiated in federations. To do so, mediating mechanisms are required. In this essay, I analyze two methods – essentializing allocations of authority and discounting either individual rights or identities of subunits – that courts in the United States and Europe have developed as they render decisions in the name of federalism. Essentialist claims link particular domains of activity to levels of governance, and justify decisions by assuming the naturalism and singularity of authority. Federalism discounts are exemplified here through analyses by the United States Supreme Court about whether state judges are unreasonably wrong when adjudicating rights of criminal defendants, and through examining decisions of the European Court of Human Rights when invoking the margin of appreciation. Discounts either under-enforce a particular right in deference to a subunit’s claim of authority and identity or insist on overriding a subunit’s decision in favor of enforcement. \u0000I argue that essential claims about the power of either the subunits or the larger entity obscure the agency of judges when making choices about how to characterize activities that determine the flow of power. In contrast, when providing federalism discounts, judges have to explain how and why the center, the subunit, or individuals bear the costs or reap the benefits of variations in rights protection. And, if such discounts are provisional, they have the potential to serve federalism(s)’ goals of accommodating plural legal sources by recognizing ongoing disagreements and the need for iterative exchanges about the scope of rights and the facets that bind the identity of both subunits and centers.","PeriodicalId":227775,"journal":{"name":"LSN: Judicial Review (Topic)","volume":"41 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2017-02-17","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122036607","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":"Assault Weapon Bans: Can They Survive Rational Basis Scrutiny?","authors":"Clayton E. Cramer","doi":"10.2139/SSRN.2764549","DOIUrl":"https://doi.org/10.2139/SSRN.2764549","url":null,"abstract":"In the last two decades, legislatures and courts have been increasingly willing to argue that a certain class of firearms termed “assault weapons” are not protected by the Second Amendment, and may be regulated or banned even though functionally identical firearms are not generally subject to such laws. Do such underinclusive bans survive even the lowest level of scrutiny: rational basis?","PeriodicalId":227775,"journal":{"name":"LSN: Judicial Review (Topic)","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-04-13","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128689836","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 Amendment Diversion: How Clinton, the Democrats, and Even Sanders Distract Attention from Effective Strategies for Too Much Money in Politics by Promoting Futile Remedies -- Book I: Hillary Clinton and the Dark Money Disclosure 'Pillar'","authors":"Robert P. Hager","doi":"10.2139/SSRN.2722336","DOIUrl":"https://doi.org/10.2139/SSRN.2722336","url":null,"abstract":"The 2016 election campaign's defining issue is the recovery of democracy from the death grip of plutocracy. The reform proposals that are supported at the outset of the primary season by Democrats and their leading presidential candidates are all inadequate for the task. This study provides a critical analysis of the current set of the widely promoted proposals on this issue of money in politics. It features those of the Democratic candidates and the congressional party. The analysis of these proposals functions as a strategy primer on the subject of money in politics for purposes of wisely assessing the widely promoted but misleading and terminally ineffective strategies. This helps open space for identifying and formulating effective strategies. Democrats and their professional activist allies, including celebrity activists and non-profit organizations have not been credible sources of strategic advice on the issue of money in politics. Their priority is the marketability of soundbite strategies, not effective political strategy. The current proposals are necessarily deficient because they all start from the erroneous assumption that the Constitution was written to establish a corrupt plutocracy and that it must therefore now be amended to enable democracy.This premise asks us to believe, without evidence, that the framers' professed intention to establish a democracy legitimized solely by the consent of the governed must now be considered to have been an elaborate fraud because five undistinguished Supreme Court justices tell us, two centuries later, that their Constitution mandates a plutocracy where money buys legitimacy. It is safe to say that the framers, who never said any such thing in the many volumes they wrote about the Constitution, are more reliable sources on this question than two Reagan and three Bush family appointees elevated from deserved obscurity to serve political ends.The active form of the Amendment Diversion is advocacy of a constitutional amendment as the only solution to plutocracy. This advocacy is most often phrased as having the purpose of \"overturning Citizens United,\" which would only leave in place the noxious root of the problem, which is Buckley v Valeo (1976). Such advocacy often takes the form of the mere concept of an amendment, little more than the quoted phrase, thereby avoiding the devilish detail of producing actual text. Amendment proposals that are reduced to text, upon analysis, are found to have perverse unintended consequences.Alternative diversionary proposals instruct us that the only available remedies short of such an amendment are a set of ineffective shopworn piecemeal reforms that comply with the Supreme Court's judicial supremacist interpretations. These interpretations reflect the Court's own plutocratic Constitution, nowhere to be found in the text of the original document. Servile compliance with the Supreme Courts' illegitimate plutocratic amendment of the Constitution is the passive for","PeriodicalId":227775,"journal":{"name":"LSN: Judicial Review (Topic)","volume":"14 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2016-01-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128778159","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":"Sales Tax and Cloud Computing in India","authors":"Khagesh Gautam","doi":"10.2139/SSRN.2681942","DOIUrl":"https://doi.org/10.2139/SSRN.2681942","url":null,"abstract":"This Article, the first of its kind, addresses the question of imposition of sales tax on Cloud computing transactions in India. Several industry estimates show that the Cloud computing market is growing in India and is poised to grow further. However, the question of how to tax these transactions remains to be addressed. This Article engages with this question, albeit only in the context of sales tax. The Indian Constitution lays down, in elaborate detail, the taxes that can exclusively be levied by the Union Parliament and those that can exclusively be levied by the State Legislatures. Sales tax on intrastate transactions of a sale, a local sales tax, can be levied exclusively by State Legislatures. Keeping in mind the elaborate constitutional arrangement, the history of the levy of sales tax on software sale transactions in India and the well-established jurisprudence of the Supreme Court of India on the point, this Article argues that local sales tax on Cloud computing transactions cannot be levied by the State Legislatures. The Indian Constitution allows the State Legislatures to levy sales tax on certain transactions by a deeming fiction of law. In other words, certain transactions can be deemed to be a ‘sale’ even if they truly are not. Relying on the well-established interpretation of those constitutional provisions by the Supreme Court of India, this Article argues that such deeming fictions of law provided for in the Indian Constitution cannot be extended to Cloud computing transactions.Article 366(29A) of the Indian Constitution provides that certain transactions, even if they are not ‘sales’ may be deemed to be ‘sale’ in order for the State Legislatures to levy local sales tax. This Article anticipates that if the State Legislatures attempt to levy local sales tax on Cloud Computing transactions, recourse would necessarily be had to Article 366(29A). But if the Supreme Court’s well-established jurisprudence on the point is to be considered, the Court has never allowed the State Legislatures to take liberty with the words of Article 366(29A). This Article attempts to demonstrate that the text of the deeming fiction provisions in Article 366(29A), as consistently interpreted by the Supreme Court, would not allow the State Legislatures the constitutional competence to deem a Cloud computing transaction as a sale in order to levy local sales tax on such transactions. The Article also flags the point that the text of Article 366(29A), if interpreted in its true context, is not capable of bearing an interpretation that would allow a Cloud computing transaction to be deemed a sale.","PeriodicalId":227775,"journal":{"name":"LSN: Judicial Review (Topic)","volume":"472 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-09-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133022666","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":"Czech Constitutional Court and Social Rights: Empirical Analysis","authors":"Marek Antoš","doi":"10.2139/ssrn.2644550","DOIUrl":"https://doi.org/10.2139/ssrn.2644550","url":null,"abstract":"The paper analyses case law of the Czech Constitutional Court concerning social rights, in particular how the reasonableness test is applied there. It confirms that the approach of the court is volatile, which is manifested by deviations from the formal structure of the test, arbitrary and unstable definitions of the core (essential content) of the rights and differences in how strict the requirements of reasonableness are to be. The author asserts that the shortcomings follow rather from the poor design of the test itself than just from a lack of diligence. As a better alternative he proposes the extreme disproportionality test which is already used by the court for review of tax legislation and should be used in social rights cases too.","PeriodicalId":227775,"journal":{"name":"LSN: Judicial Review (Topic)","volume":"28 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-08-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134543953","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}