Abstract: During the past decade the role of constitutional courts has dramatically changed. Today, constitutional courts condition their decisions with the presumption of constitutionality of statutes, opting to interpret them according to or in harmony with the Constitution in order to preserve them, instead of deciding their annulment or declaring them unconstitutional. More frequently, constitutional courts, instead of dealing with existing legislation, assume the role of assistants or auxiliaries to the legislator, creating provisions they deduct from the Constitution when controlling the absence of legislation or legislative omissions. In some cases they act as 'positive legislators', issuing temporary or provisional rules to be applied pending the enactment of legislation. This book analyzes this new role of the constitutional courts, conditioned by the principles of progressiveness and of prevalence of human rights, particularly regarding the important rediscovery of the right to equality and non-discrimination.

Abstract: Should the state permit anonymous sperm donation? Should brother-sister incest between adults be made criminal? Should individuals over the age of fifty be allowed access to re-productive technologies? Should the state fund abstinence education? One common form of justification that is offered to answer these and a myriad of other reproductive policy questions is concern for the best interests of the children that will result, absent state intervention, from these forms of reproduction. This focus on the Best Interests of the Resulting Child (BIRC) is, on the surface, quite understandable and stems from a transposition of a central organizing principle of family law justifying state intervention - the protection of the best interests of existing children - visible in areas such as adoption, child custody, and child removal. The Article demonstrates that while parallel reasoning is frequently offered (by legislatures, by courts, by commentators, by physicians) to justify state interventions that seek to influence whether, when, and with whom individuals reproduce, such justifications are problematic and misleading. The Article’s aim is nothing short of re-writing our way of thinking about the regulation of reproduction.Drawing on insights from bioethics and the philosophy of identity, the Article shows why the BIRC justification, at least stated as such, is problematic both as a normative and constitutional matter: unless the state’s failure to intervene would foist upon the child a “life not worth living,” any attempt to alter whether, when, or with whom an individual reproduces cannot be justified on the basis that harm will come to the resulting child, since but for that intervention the child would not exist. Nevertheless, the Article shows that BIRC arguments are frequently relied upon by courts, legislatures, and scholars to justify these interventions. At a doctrinal level the Article also shows that this reliance on BIRC justifications is in tension with the implicit rejection of similar reasoning by courts unwilling to recognize wrongful life torts.After demonstrating why the BIRC argument is unworkable as stated, the Article considers three possible reformulations of the argument that would save it, including one that focuses on population welfare. It explains why none of these approaches is persuasive, including by discussing their disturbing implications as to enhancement and eugenics. The Article also briefly discusses how this analysis bears on the constitutionality of these interventions.Once the BIRC justification and its reformulations are shown to be problematic, it becomes apparent that either these forms of reproductive regulation are unjustified or quite different sorts of justifications must be relied on. I briefly plot three such theories, each of which depends on more controversial ideas that the label of “best interests” obfuscates. These theories are examined in-depth in a companion article, Beyond Best Interests, which appears in the April 2012 issue of the Minnesota Law Review and will be uploaded to SSRN soon.There are also two related papers: Rethinking Sperm-Donor Anonymity: Of Changed Selves, Non-Identity, and One-Night Stands, 100 Georgetown Law Review, Vol. 100, 2012, available at http://ssrn.com/abstract=1961605 and Intentional Diminishment, the Non-Identity Problem, and Legal Liability, Hastings Law Journal, Vol. 60, 2008, available at http://ssrn.com/abstract=1330504.

Abstract: The self-congratulatory tone of the majority and concurring opin ions in last term's controversial Supreme Court blockbuster, Citizens United v. Federal Election Commission, extended beyond the trumpeting of an absolutist vision of the First Amendment that allows corporations to spend unlimited sums independently to sup port or oppose candidates for office. The triumphalism extended to the majority's view that it had imposed coherence on the unwieldy body of campaign finance jurisprudence by excising an "outlier" 1990 opinion, Austin v. Michigan Chamber of Commerce, which had upheld such corporate limits, and parts of a 2003 opinion, McConnell v. FEC, extending Austin to unions and to a broader set of election-related television and radio broadcasts. The majority saw itself as returning the Court to the fountainhead of this juris prudence, the Court's 1976 opinion in Buckley v. Valeo. Citizens United indisputably harmonized campaign finance law on the ques tion of the constitutionality of spending limits on corporations, even if its view of Austin as an "outlier" remains contested. But the Court in doing so amplified and solidified other significant, inco herent aspects of its campaign finance jurisprudence. Part I of this Article situates Citizens United in the campaign fi nance jurisprudence that preceded it and describes in detail the key opinions in the case. Part II explains how the Court's analysis in Citizens United is likely to lead to new incoherence in the Court's campaign finance jurisprudence, because it is unlikely that the Court will follow the new case to its extreme, for example to allow spending by foreign nationals to influence candidate elections, to treat spending in judicial elections the same way as spending for other races, or to strike down reasonable limits on campaign con tributions made directly to candidates. Part III suggests that incoherence is likely to be an enduring feature of the Court's cam paign finance jurisprudence, because consistent application of a coherent approach could well be politically unpalatable for major ity of the Justices on the Court. It also considers the challenge such

Abstract: In 2 recent cases-with important implications for public health practitioners, courts, and researchers-the US Supreme Court changed the landscape for judging the constitutionality of firearm laws under the Constitution's Second Amendment. In District of Columbia v Heller (2008), the court determined for the first time that the Second Amendment grants individuals a personal right to possess handguns in their home. In McDonald v City of Chicago (2010), the court concluded that this right affects the powers of state and local governments. The court identified broad categories of gun laws-other than handgun bans-that remain presumptively valid but did not provide a standard to judge their constitutionality. We discuss ways that researchers can assist decision makers.

Abstract: Most scholarship on Supreme Court decision making assumes that justices’ ideological preferences exhibit a uniform impact on their choices across a variety of situations. I develop a theoretical framework positing the importance of case-level context in shaping the magnitude of ideological voting on the Court. I hypothesize how issue-related factors influence this magnitude. I test the hypotheses using a multilevel modeling framework on data from the 1953-2004 terms. The results provide support for several of the hypotheses; issue salience, issue attention, the authority for the decision (statutory interpretation versus constitutionality of federal or state laws), intercourt conflict, the presence of a lower court dissent, and mandatory versus discretionary jurisdiction all significantly influence ideological voting. Overall, the article adds significant qualifications to extant theories of judicial decision making by showing how ideological voting on the Court is shaped by the varying situations that con...

Abstract: Recently, there has been a federal-subfederal tug of war about whether subfederal governments can enact laws prohibiting the employment of undocumented immigrants and requiring employers to use an electronic employee-verification system without running afoul of the Constitution’s Supremacy Clause. This article reframes and sheds new light on this pressing constitutional question. To date, court battles and scholarship on this issue have exclusively focused on whether federal immigration law preempts these subfederal laws. In contrast, this article alters the analytical lens and exposes the preemptive effects of two federal employment statutes - Title VII of the Civil Rights Act and the Fair Labor Standards Act. It draws from legislative history, Supreme Court jurisprudence and scholarship to both demonstrate the need to consider federal employment law’s preemptive effects and to develop a new implied preemption framework. The analysis reveals that subfederal employer sanctions laws are unconstitutional because they conflict with fundamental federal employment policy goals to protect employees from employment discrimination and to encourage valid employee-initiated complaints for the benefit of employees more broadly. The article also elaborates why we should consider the joint preemptive effect of the two federal statutory regimes that subfederal employer sanctions laws implicate: federal immigration law and federal employment law. This hybrid "immployment-law" preemption framework shows that subfederal employer-sanctions laws may also conflict with Congress’s intent to promote federal employment policy as part of the Immigration Reform and Control Act.

Abstract: The recent Ontario trial decision in Bedford suggests three interrelated principles that municipal law makers should consider when formulating bylaws aimed at regulating sex work. These principles, if upheld on appeal, will inform the constitutionality ofboth current and prospective bylaws regulating sex work in Canadian cities. In Bedford, justice Himel concluded that the constitutionality of laws regulating the sex trade must be determined in a legal context which recognizes the violence faced by sex workers. She confirmed that laws that indirectly make sex work more dangerous and harmful must be consistent with those principles that our legal system, through its courts, have deemedfundamencal to a just society. She recognized that in a just society a government is not entitled to jeopardize the health and physical safety of sex workers for the sake of reducing public nuisance. In order to ensure the constitutional validity of proposed bylaws, municipal lawmakers will therefore need to consider the impact their bylaws have on the safety ofsex workers.

Abstract: This article is built around three general observations. The first is that, in the current stage of the development of constitutional theory and practice, there is a need to create procedures allowing the review of constitutional amendments. The second is that traditional mechanisms, in particular the “internal” review of constitutionality of constitutional amendments, may not always be able to provide sufficient protection against amendments that run counter to the existing constitutional structure. The final observation is that, in the current state of globalization, international law—in particular international human rights law—may play a significant role in an “external” assessment of the legitimacy of constitutional amendments. This role of international law is particularly well developed in Europe, and most of our conclusions therefore focus on the European perspective. Given the universal nature of human rights, however, at least some of these conclusions may also be validfor other regions of the world.

Abstract: Before health care reform was enacted, Democratic lawmakers and most legal scholars were confident of its constitutionality. Under long-established Supreme Court precedent, Congress would have authority, if it wanted, to enact a single-payer socialized insurance system, using its powers to tax and spend “for the general welfare.” Far short of such a system, the complex blend of regulation, subsidies, and an individual mandate included in the Affordable Care Act (ACA) is vastly more protective of insurance markets and individual freedoms. Congress has nearly unbridled authority to regulate products sold in or affecting interstate commerce, and health insurance is one such . . .

Abstract: Sanctuary ordinances or policies that constrain local authorities from assisting in federal immigration enforcement do not receive the same political and media attention as anti-immigrant laws enacted by states and local governments. In the political struggle over the rights of undocumented immigrants in the United States, the greater media and political focus on anti-immigrant measures, such as Arizona’s S.B. 1070 and similar policies in cities like Hazleton, Pennsylvania, and Farmers Branch, Texas, is understandable.With much less fanfare, the legality of sanctuary policies also has been challenged. In this article I review the case law that specifically has involved the constitutionality of sanctuary policies and the relevant principles of preemption and states’ rights. That process necessarily forces some comparison with the legal challenges over anti-immigrant local and state laws. In my view, while the principles of federalism represented in the Supreme Court’s approach to the Tenth Amendment and preemption drive a stake in the heart of subfederal anti-immigrant laws, those same principles guide us to the conclusion that sanctuary policies are on safe footing.Understanding why sanctuary policies are constitutional is important to the raging debate over immigration. Seemingly on a daily basis, anti-immigrant measures are proposed or enacted by state and local governments. In contrast, some jurisdictions that regard gaining the trust of immigrant communities as a necessity for public safety or who view themselves as immigrant friendly choose an approach that de-emphasizes the immigration status of those encountered in the course of police work. Additionally, the proliferation of litigation challenging the constitutionality of anti-immigrant ordinances raises the question of whether one set of subfederal immigration-related approaches (sanctuary policies) can be constitutional, while a different set (anti-immigrant legislation) is not. To put it bluntly, can those in the immigrant rights community that promote sanctuary ordinances and attack anti-immigrant proposals have it both ways constitutionally?I conclude that in the immigration field, the concept of preemption is an appropriate check on overzealous subfederal enforcement efforts that directly affect immigration regulation, while the Tenth Amendment is a check on federal intrusion on a local jurisdiction’s attempt to be more protective of individual rights when the locality has a legitimate nonimmigration-related purpose, such as public safety.The discussion on the legality of sanctuary policies will reveal that the reserved police powers and local economic decisions under principles of federalism play a major part in the analysis. For that reason, a deeper understanding of the rationale for sanctuary policies is critical. We will find that in jurisdictions with sanctuary policies, local policy makers and law enforcement officials have made thoughtful and deliberate public safety decisions, taking great pains to do the right thing for the entire community. Those decisions are critical to principles of inclusion in our ever-growing diverse communities. For that reason, the sanctuary framework is good public policy — especially in contrast to the anti-immigrant examples of Arizona’s S.B. 1070 or Hazleton, Pennsylvania.

Abstract: The continuing uncertainty over the constitutionality of the Affordable Care Act, illustrated by conflicting trial court rulings and scholarly commentaries, raises the question of why this constitutional question is so hard to answer. There are at least four reasons.

Abstract: When the Supreme Court decides whether the action of another branch of government is constitutionally valid, it is inevitably allocating institutional responsibility. This article argues that constitutional law is best understood and evaluated by giving central attention to this allocation of decision-making and, therefore, to the relative attributes of the alternative institutional decision-makers. The article, in other words, proposes a comparative institutional approach to constitutional law. This comparative institutional analysis has three fundamental features:(1) Courts and legislatures differ in their capacities to solve substantive questions, and the degree and kind of these differences can vary significantly. (2) The relative difficulty of various substantive questions arises from social and political realities too varied and subtle to be adequately captured in the broad analytical categories, such as substance and process or principle and policy, employed by many constitutional scholars. In general, such simple bifurcations are inferior to an approach that can more naturally accommodate the gradations in and interplay among these underlying factors. (3) Although a role for courts in our constitutional system might be based on the identification of flaws in the legislative process, thereby overcoming the presumption of constitutionality traditionally accorded the more democratic institutions, identification of a legislative flaw should not be conclusive; the analysis must be comparative. Whether and to what extent the court takes the decision from the legislature depends on the relative merits of the judiciary as a substitute decision-maker.The first section of the article sketches the approach I propose and provides examples of its application. The remainder provides a critique of the way institutional comparison is treated in several prominent existing approaches to constitutional law. I begin with the approach of John Hart Ely, which emphasizes the role of malfunction in the democratic process as a means for determining the proper scope of judicial review. I then turn to approaches to institutional analyses that place heavy emphasis on the powers of judicial reasoning and neutrality. Finally, I consider the approaches that deal with institutional analysis by limiting its relevance.

Abstract: No provision of the Patient Protection and Affordable Care Act (PPACA) has been more contentious than the so-called "individual mandate," the constitutionality of which is now before several appellate courts. Critics claim that the mandate represents an unprecedented attempt by the federal government to compel individual action. Yet, states frequently employ similar mandates to protect the public's health. These public health mandates have also often aroused deep opposition. This essay situates PPACA's mandate, and the opposition to it, in that broader context. The article reviews the arguments that public health's population perspective provides in support of mandates, as well as the reasons why mandates often ignite intense legal and political opposition. Most importantly, by holding individuals accountable for population-based problems, mandates may undercut the public health arguments that justify them. The article concludes by arguing that public health policymakers need to know more about the unintended political and legal costs of mandates.

Abstract: The debate over Network Neutrality - one of the most hotly debated public policy issues in the United States in recent years - has been focused primarily on economic and technological aspects of Internet governance. This Article treats Network Neutrality primarily as a free speech issue and comprehensively examines the First Amendment implications should neutrality rules be enacted. The Article explains why the current legal environment does not support a Network Neutrality law and questions, using an analogy to the Supreme Court's rulings in the Turner cases, the constitutionality of potential neutrality rules under existing First Amendment jurisprudence. It traces the jurisprudential difficulty in upholding neutrality rules to the traditional bilateral concept of the First Amendment, which sees any First Amendment conflict as a two-variable equation (a speaker and the Government), making it ill-suited to deal with the multiple-speaker environment of the Internet. The Article identifies the various mechanisms by which the Court has traditionally reduced the multilateral matrix of conflicting First Amendment rights into the familiar bilateral pattern, the result being the deprivation of rights of some speakers. Network Neutrality, the article asserts, protects content providers', and especially users' individual free speech rights, which stem from the First Amendment. The Article calls for the adoption of both network neutrality rules and a new, multilateral concept of the First Amendment, in which the rights of all relevant variables in the constitutional matrix are assessed on equal terms.

Abstract: In Stop the Beach Renourishment v. Florida Department of Environmental Protection, 130 S. Ct. 2592 (2010), a plurality of the Supreme Court concluded that the Takings Clause of the United States Constitution prohibits the judiciary from declaring that “what was once an established right of private property no longer exists” unless the property owner in question receives just compensation. In this paper, we delineate the boundaries between a judicial taking and a violation of the Constitution’s due process protections. The result is a judicial takings doctrine that is narrower and more coherent than the one suggested by Stop the Beach.Our argument proceeds in two parts. The first is a conceptual section that explains what factors are relevant to determining whether a judicial action diminishing a private property interest is a judicial taking or something else. In our view, where a judicial decision intentionally seizes private property in order to achieve a legitimate public end, the Takings Clause is an appropriate framework for evaluating the constitutionality of the state’s action. Due Process is the more appropriate doctrinal pathway where the judiciary does not intend to abrogate a private owner’s property rights, or where the diminution of private property rights results from a judicial action that serves no legitimate public purpose. By clarifying the boundaries of judicial takings, we also hope to shed light on the constitutional foundation for numerous state-court doctrines concerning the retroactivity of new property rules. The second section articulates a novel functional argument, which suggests that creating liability for judicial takings may cause litigants to underinvest in high quality legal representation, which will in turn increase the likelihood of judicial mistakes and contribute to the destabilization of existing entitlements. This phenomenon prompts us to argue that cases in which the underinvestment incentives are most pronounced should be litigated under the Due Process Clause, but cases where repeat-play or the government’s involvement as a litigant mitigates the underinvestment problem represent more appropriate vehicles for judicial takings treatment. What rides on the distinction between judicial takings and due process violations? Under our approach, judicial takings cases should be (a) easier to win than due process cases, (b) more likely to result in damages remedies than injunctive remedies, and (c) may lend themselves to attractive “comparative fault” inspired solutions.

Abstract: Introduction"I'm your worst nightmare Your troubles are just beginning"1In May 1998, Taryn Pream, a young woman in Thief River Falls, Minnesota, received this message, accompanied by pornographic pictures, in a series of threatening e-mails sent over a period of three weeks from an anonymous address2 For Pream and law enforcement officials, stopping the online harassment seemed unlikely3 She had no way of identifying the sender, who appeared to have intimate knowledge of her personal life, and her Internet Service Provider (ISP) could only informher that the messages originated from her hometown4 Any other information would require at least two weeks and a search warrant5 Pream grew reclusive and paranoid, obsessing about locking doors and windows6 She ultimately tracked down the culprit, not with the assistance of police, but because the sender forwarded several obscene photographs through his friends' e-mail accounts7 One of these individuals helped Pream identify her harasser-a fellow classmate at school8At the time of Pream's ordeal, her efforts to locate the guilty party were impeded by local authorities' inexperience with the Internet and harassment committed via electronic media9 Federal and state law has progressed significantly since 1998, with over forty states enacting statutes that criminalize cyberbullying, cyberstalking, cyberharassment, and other purposeful, threatening online conduct10 Victims of harassment through electronic communications still lack legal remedies, however11 The US Congress and state legislatures have attempted to address the interests of victims through enacting new legislation or amending existing stalking and harassment laws; yet criminal statutes that contain prosecution- oriented language or subjective standards of harm risk invalidation for impinging on First and Fourteenth Amendment freedoms12 Conversely, statutes that feature conservative requirements for conviction impose overwhelming evidentiary burdens upon prosecutors and permit the harasser to continue his or her harmful conduct at the expense of the victim's psychological and even physical well-being13 Identifying an appropriate balance between the interests of both the victim and the accused is therefore essential to ensuring the efficacy and constitutionality of current and future cyberharassment legislation14This Note examines the statutory strategies employed in federal and state cyberharassment laws and proposes that burden-shifting devices, already well established in other areas of penal law, have unique utility for cybercrimes, where anonymous or pseudonymous communications disadvantage victims and law enforcement15 Part I explores the nature and consequences of the offense of cyberharassment and how civil immunity for ISPs disincentivizes their disclosure of subscriber identities, even those belonging to individuals who promulgate obscene or objectionable content16 Part II examines existing criminal cyberharassment laws and discusses why commonly used statutory elements, such as standards of reasonableness and specific intent, fail to strike an adequate balance between the privacy concerns and personal safety of the victim, and the free speech and due process rights of the alleged harasser17 Part III then analyzes the utilitarian benefits, constitutional arguments, and underlying policies of burden-shifting devices, particularly affirmative defenses and nonmandatory presumptions18 This Part then proposes that reallocation of evidentiary burdens between the prosecution and the defendant in cyberharassment legislation is a promising method of reconciling the interests of both the victim and the accused19 Finally, the Appendix includes all current state and federal cyberharassment statutes, their constituent elements, and the result of any constitutional challenges20I The Crime of CyberharassmentA The Consequences and Legal Difficulties of CyberharassmentThe terms "cyberharassment," "cyberbullying," and "cyberstalking" have no universally accepted definition and are often used interchangeably …

Abstract: This paper examines the competences of the UN Security Council under the “constitution” of the United Nations, focusing in particular on its recent innovations in legislation. Certain critics decry Council legislation as unconstitutional, null and void. Apologists retort that the Charter delegates broad power to the Council, and the impugned legislative Resolutions fall well within the broad textual limitations on its competence. I propose an approach to constitutional analysis to help cut through this debate, based on distinguishing between two perspectives on the “constitution” of an international organization: the juridical perspective emphasizing the transmission of validity in the creation, interpretation, and application of legal norms (constitutionality/unconstitutionality); and the political perspective from which the ordering of power among the constituted bodies may be assessed in terms of legitimacy and justice (e.g. the political-theoretical language of constitutionalism). Distinguishing between the perspectives illuminates the merits of the arguments on both sides of the debate on the Council’s competences. Juridically speaking, it is difficult to argue that the Council’s innovations are unconstitutional and void. Yet the political perspective helps explain the critics’ discomfort with the Council’s expansive innovations; from the latter angle it appears that the Charter’s broad, unreviewable, and effectively unamendable delegation of power to the Council yields a deeply flawed constitutional arrangement, entailing systemic risks of hegemonic international law-making and the demise of constitutionalism.

Abstract: In 2002 the Scottish National Party (SNP) produced a Constitution for Scotland, to be adopted by the people in a referendum upon achieving independence. This Constitution proposed a range of novel devices, such as fixed-term Parliaments, unicameralism, proportional representation, the election of the Prime Minister by Parliament and judicial review of the constitutionality of legislation, which were alien to the Westminster Model—although some of these proposals had already been incorporated into the devolved institutions created by the Scotland Act, 1998. This paper provides a detailed analysis of the provisions of the SNPs draft Constitution, from a political rather than legal perspective, focusing on the relationships between Parliament, the Government, the Head of State and the people. The extent to which the draft Constitution represents a rejection of the Westminster model is assessed, and the technical shortcomings of the draft Constitution are highlighted. The paper concludes with some recommendations for changes to the SNPs draft Constitution which could improve the overall design.

Abstract: The Supreme Court soon will decide whether to review the constitutionality of Arizona’s high-profile immigration enforcement effort, known popularly as SB 1070 Arizona’s law is simply the tip of the iceberg State legislatures have passed immigration enforcement laws over the last few years at breakneck speed Controversy has ensued Earlier this year, the Alabama legislature entered the fray by passing a tough-as-nails immigration law The Alabama law builds on the controversial Arizona law but goes considerably further This essay contends that the civil rights implications for immigrants and Latinos raised by the state immigration laws are in many respects similar to the civil rights issues raised by Jim Crow for African-Americans This is true even though the current litigation centers on federal preemption doctrine, as opposed to the Equal Protection Clause of the Fourteenth Amendment The current state laws eerily bring back memories of the “states’ rights” defense of segregation Congress could measurably help address the civil rights concerns through some form of comprehensive immigration reform The courts and the public should realize that, until the nation grapples with the civil rights impact of its immigration laws, it will continue to generate the sort of heated controversy that surrounds Alabama’s immigration law

Abstract: Currently, a total of twenty-eight states are challenging the constitutionality of the Patient Protection and Affordable Care Act (PPACA) in federal court. Their principal claims are that the PPACA's regulation of the states violates their independent sovereignty, and that the Act's minimum coverage requirement exceeds Congress's enumerated powers. This litigation is immensely important, as it concerns a hugely significant statute and raises fundamental questions of constitutional federalism. This article offers a detailed description of the claims raised by the states and analyzes their plausibility under current law. It then addresses the likelihood that the Supreme Court will ultimately sustain the states' arguments and invalidate the PPACA.

Abstract: The process to create hate crime laws in the United States has wrestled with the core issues of freedom of speech and greater harm. This article looks at the evolution of bias crime laws, culminating with President Obama’s signing of the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act in 2009. The constitutionality of the laws is ‘discussed and suggestions for sociological research are made. Four elements of hate crime laws are discussed; criminality, intent, perception, and protected statuses. The logic of hate crime laws is based on the argument that hate crimes are a form of terrorism, designed to intimidate large groups of people. Readers should be familiar with the basic case for the existence of such laws.

Abstract: The current health care crisis in the United States compels a consideration of the crucial role that telemedicine could play towards deploying a pragmatic solution. The nation faces rising costs and difficulties in access to and quality of medical services. Telemedicine can potentially help to overcome these challenges, as it can provide new cost-effective and efficient methods of delivering health care across geographic distances. The full benefits and future potential of telemedicine, however, are constrained by overlapping, inconsistent, and inadequate legal and regulatory frameworks, as well as the repertoire of standards imposed by state governments and professional organizations. Proponents of these barriers claim that they are necessary to protect public health and safety, and that the U.S. Constitution gives states exclusive authority over health and safety concerns. This Article argues that such barriers not only fail to advance these public policy goals, but are unconstitutional when they restrict the practice of telemedicine across state and national borders. Furthermore, the interstate and international nature of telemedicine calls for increasing the centralized authority of the federal government; this position is consistent with the U.S. Constitution and other governing principles. Finally, this Article observes that the U.S. experience bears some similarities to that of other nations, and represents a microcosm of the international community's need and struggle to develop a uniform telemedicine regime. Just as with state governments in the U.S., nations are no longer able to view health care as a traditional domestic concern and must consider nontraditional options to resolve the dilemmas of rising costs and discontent in the delivery of health care to their people.

Abstract: It is conventionally believed that neutral legal principles required antislavery judges to uphold proslavery legislation in spite of their moral convictions against slavery. Under this view, an antislavery judge who ruled on proslavery legislation was forced to choose, not between liberty and slavery, but rather between liberty and fidelity to his conception of the judicial role in a system of limited government. Focusing on the proslavery Fugitive Slave Act of 1850, this article challenges the conventional view by arguing that the constitutionality of the fugitive act was ambiguous; meaning that neutral legal principles supported a ruling against the fugitive act as well as a ruling in favor of it, and that prominent antislavery judges were influenced to uphold the act by a belief that doing so was necessary in order to preserve the Union.

Abstract: At present, European contract law constitutes one of the most controversial debates in the European Union, particularly as far as the extent of the Union’s competence to take farreaching action in the field of contract law is concerned. Since the Commission’s seminal 2001 Communication, there has been a steady stream of documents issued at the European level which continue to refine the Union’s role in European contract law, including most recently the Commission’s 2010 Green Paper ‘on policy options for progress towards a European Contract Law for consumers and businesses’ (hereinafter Green Paper). Yet, as the various activities envisaged for European contract law progress, detailed assessment of its constitutional dimensions continues to lag behind. This is illustrated by the Green Paper in which the analysis of potential legal bases to support the various options for Union action presented therein is not explicitly dealt with. Certainly, to some extent, the Commission’s reticence to discuss constitutionality in the Green Paper can be explained by the fact that this subject is linked to issues which have yet to be decided relating to, inter alia, the legal form and the scope of the instrument concerned, as already acknowledged in a previous Communication with respect to the optional instrument. Still, the Green Paper advances important issues bearing on the limits and the exercise of Union competence in connection with the proposed options for the adoption of a European contract law instrument.

Abstract: One view among the judiciary in Hong Kong is that courts should defer to the government’s position in adjudicating the constitutionality of policies, because courts are institutionally and constitutionally unequipped to pass judgment on policy issues. Using W v Registrar of Marriages as an example, this article examines some of the commonly cited institutional and constitutional reasons for deference, and argues that these reasons do not, generally speaking, provide valid grounds for Hong Kong courts to defer.

Abstract: This comment argues that courts should focus on the negative liberty interests of the accused and the proportionality of state-imposed limits on those interests, as opposed to the human dignity of either the accused or the victim, when determining the constitutionality of criminal laws. The first part of the comment examines the Canadian experience with regard to the constitutional control of the criminal law. Canadian courts have focused on the liberty of the accused but have been unwilling to consider how the liberty interests of the accused can be subject to proportionate limitations. The next part suggests that human dignity has a dual character that can both support and oppose many controversial parts of the criminal law and as such is not particularly helpful for courts in assessing the constitutionality of criminal laws. The third part critically examines the presumptions of constitutionality proposed by Gur-Arye and Weigend and suggests that human dignity has little work to do in these presumptions. The last part suggests that a focus on the negative liberty of the accused and the proportionality of the state's limits on those rights provides the best foundation for constitutional control of the criminal law.

Abstract: Over the last decade, the Canadian government has not managed to produce a comprehensive climate change statute and has failed to adequately consider the constitutional implications of doing so. The Clean Air Bill, an unsuccessful 2006 amendment to the Canadian Environmental Protection Act (CEPA), focused on carbon credit trading and a technology fund credit mechanism to permit certain emissions-heavy industries to mitigate their production of greenhouse gases. However, this bill would likely have infringed on provincial jurisdiction over electricity generation facilities, trumping any attempt to address greenhouse gas emissions beneath the rubric of criminal law. The present federal government’s proposed coal-fired electricity generation regulations are similarly flawed. This paper thoroughly analyzes both pieces of legislation from a constitutional standpoint, using a rich body of case law to offer policymakers invaluable guidance in properly framing legally sound emission reduction statutes.

Abstract: Political process theory, closely associated with the work of John Hart Ely and footnote four in United States v. Carolene Products, has long been a staple of constitutional law and theory. It is best known for the idea that courts may legitimately reject the decisions of a majority when the democratic process that produced the decision was unfair to a disadvantaged social group. This Article analyzes political process theory through the lens of the contemporary debate over same-sex marriage. Its analysis is grounded in state supreme court decisions on the constitutionality of barring same-sex marriage, as well as the high-profile, recent trial in federal court on the constitutionality of California's Proposition 8, which featured extended testimony by opposing political scientists on gay and lesbian political power. The Article argues that the marriage debate reveals deep conceptual problems with process theory as it has been conventionally understood, and that looking at the theory through this lens can point the way to refashioning it in both doctrinal and conceptual terms. It calls for a more substantive and nuanced conception of democratic equality, as well as a more realistic institutional understanding of courts and the political process.