Digital Commons Network^™

Privacy, Surrogacy, And The Baby M Case, Anita L. Allen

All Faculty Scholarship

No abstract provided.

The Federalist's Plain Meaning: Reply To Tushnet, Anita L. Allen

All Faculty Scholarship

No abstract provided.

Rule 11 In The Constitutional Case, Gary J. Saalman, Kenneth Ripple

Journal Articles

The 1983 amendments to the Rules of Civil Procedure arose from concern over the flood of litigation in recent years and its high costs to both litigants and the court system. Although the causes of this litigation explosion and the remedies are both many and complex, the pretrial stage of litigation and the standards governing attorney responsibility were considered major contributors to the problem and prime areas for reform. The drafters of the 1983 amendments sought to streamline the litigation process by increasing judicial oversight and deterring abusive or dilatory tactics by the bar. Some of the most significant changes …

Management And Marketing Of Indian Water: From Conflict To Pragmatism, David H. Getches

Publications

No abstract provided.

Cannibal Moves: An Essay On The Metamorphoses Of The Legal Distinction, Pierre Schlag

Publications

No abstract provided.

Civil Liberties Guarantees When Indian Tribes Act As Majority Societies: The Case Of The Winnebago Retrocession, Charles F. Wilkinson

Publications

No abstract provided.

Some Modest Proposals On The Vice-Presidency, Richard D. Friedman

Articles

There are many good things in the Constitution, but the vice-presidency isn't one of them. In Part I of this essay, I will argue that there are three basic problems with the vice-presidency: the method of nomination, the method of election, and the office itself. That just about covers the waterfront.' If we had to do it all over again, we almost certainly would not" create the system we currently have. We cannot undo history, but we do have a very strong incentive to develop a better system of succession to the presidency. Whom we choose as vice-president is a …

The Authoritarian Impulse In Constitutional Law, Robin L. West

University of Miami Law Review

No abstract provided.

Toward A General Theory Of The Establishment Clause, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Rights Discourse And Neonatal Euthanasia, Carl E. Schneider

Articles

Hard cases, they say, make bad law. Hard cases, we know, can also make revealing law. Hard cases identify the problems we have not found a way of solving. They reveal ways the law's goals conflict. They force us to articulate our assumptions and to examine our modes of discourse and reasoning. If there was ever a hard case for the law, it is the question of whether, how, and by whom it should be decided to allow newborn children who are severely retarded mentally or severely damaged physically to die. For many years, the law has not had to …

The Preiser Puzzle: Continued Frustrating Conflict Between The Civil Rights And Habeas Corpus Remedies For State Prisoners, Martin A. Schwartz

Scholarly Works

No abstract provided.

Constitutional Law: Is Time Running Out For The Government To Dispute Regulatory Takings - Irst English Evangelical Lutheran Church V. City Of Los Angeles, Sharon A. Woodard

Campbell Law Review

This Note will trace the evolution of regulatory "temporary" takings from its roots in traditional eminent domain law and examine the practical effects of the Court's decision on regulatory takings analysis. The analysis will specifically question what period of time during the pendency of takings litigation will constitute a "considerable" enough length of time that it becomes a factor in takings analysis and remedies. This Note will conclude that although the First English decision will increase the number of challenges to regulator actions and increase regulator liability it probably will not enhance the actual compensation amount that aggrieved landowners receive.

Constitutional Rights Of Students, Their Families, And Teachers In The Public Schools, Norman B. Smith

Campbell Law Review

This article searches for resolutions of constitutional conflicts, not only between the state as public school administrator and individual students, parents, and teachers, but also among the competing constitutional demands of the individuals whose interests are affected by the system of public education. Part II of this article addresses the public interests and values in which the educational system is rooted. Part III identifies and discusses the first amendment rights at stake in public education: freedom of expression; the right to receive communication; freedom of religion; and the protection against establishment of religion and familial childrearing rights. Part IV contains …

Constitutional Law - Preemption Of State Common Law Actions Against Cigarette Manufacturers By The Federal Cigarette Labeling And Advertising Act: Have Smokers Taken Their Last Puff To Hold Tobacco Companies Liable Under A State Tort Claim? - Palmer V. Liggett Group, Inc., Lora B. Greene

Campbell Law Review

This Note will examine the Act and the scope of its preemption provision. In addition, this Note will illustrate how the Palmer court analyzed prior cases to elevate the immunity of cigarette manufacturers and will also review the status of the law prior to and after Palmer. The main thrust of this Note is how the Palmer decision, by driving another nail in the preemption coffin for state common law claims against cigarette manufacturers, effectively slammed the lid on these cigarette manufacturer liability suits and requires dismissal of future suits based on inadequate warning labels.

Ventriloquism And The Verbal Icon: A Comment On Professor Hogg's "The Charter And American Theories Of Interpretation", Richard F. Devlin

Osgoode Hall Law Journal

In this brief comment I offer some critical reflections on Professor Hogg's proposed approach to Charter interpretation. I suggest that Professor Hogg's attempt to legitimize and constrain judicial review is an exercise in confession and avoidance. On the one hand, he admits that "interpretivism" is explanatorily inadequate, yet on the other he refuses to accept "non-interpretivism" for he realizes that it has the potential to unmask the politics of law. I argue that Hogg's third way - that Charter interpretation should be progressive and purposive - is incapable of bearing the legitimizing weight which he requires in that it necessitates …

"Five-Hundred-Year Flood Plains" And Other Unconstitutional Challenges To The Establishment Of Community Residences For The Mentally Disabled, Robert L. Schonfeld

Fordham Urban Law Journal

This article examines the impact of state statutes and local ordinances on the establishment of community residences for the mentally disabled. While some states have policies advocating for community residences, these policies are often undermined by barriers such as neighborhood opposition and statutes and ordinances that impede development. The author analyzes the application of the equal protection clause to statutes and ordinances affecting the mental disabled, ultimately concluding that many are unconstitutional. Finally, the author discusses the impact of City of Cleburne v. Cleburne Living Center on state statutes and local ordinances that limit the establishment of community residences. The …

Reconstructing The Takings Doctrine By Redefining Property And Sovereignty, John Martinez

Fordham Urban Law Journal

In 1987, the Supreme Court decided three cases involving "takings" challenges to governmental exercise of the power to control land use. This trilogy of cases affirmed the continuing validity of a three-part analytical model in addressing the takings problem: (1) is private property involved; (2) has governmental action so affected it as to require a remedy; and (3) what remedy should be provided? This Article critically examines that model and argues that the first two questions are fundamentally indistinguishable and that to treat them as distinct inquiries is unworkable. The Article then proposes a functional approach under which individuals are …

Technologically Enhanced Visual Surveillance And The Fourth Amendment: Sophistication, Availability And The Expectation Of Privacy, Clifford S. Fishman

Scholarly Articles

Since 1983, however, seven Supreme Court decisions have focused at least in part upon application of the Fourth Amendment to technological enhancement of, or technological substitution for, visual surveillance: United States v. Dunn and Texas v. Brown (artificial illumination); United States v. Knotts and United States v. Karo (electronic tracking devices); California v. Ciraolo9 and Florida v. Riley (aerial surveillance); and Dow Chemical Co. v. United States (image-magnifying aerial photography). Reaction to many of these decisions has been highly critical.

In six of the seven cases, investigators refrained from intruding physically into a location protected by the Fourth Amendment. The …

Nudity, Obscenity And Pornography: The Streetcars Named Lust And Desire, George P. Smith Ii

Scholarly Articles

No abstract provided.

Lessons Of The Iran-Contra Affair: Are They Being Taught?, Philip C. Bobbitt

Faculty Scholarship

The issues I am going to talk about today vary from the very straightforward to the somewhat complicated. One thing ties them together – my dismay at how little the fundamental constitutional issues of the Iran-contra affair seem to have been brought to the surface, either by the hearings, or by the commentary in the press, or even by the schools that led us to this affair in the first place.

I want to talk about three issues which represent the failure of civics education in this country. The three questions are: 1) what is wrong with pursuing secret …

Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski

Faculty Scholarship

The purpose of this Comment is to examine the history of the enactment and early enforcement of the Civil Rights Act of 1866 from the perspective of the remedies Congress sought to provide to meet the problems that necessitated the legislation. Its main foci are the statute's enforcement provisions and their early implementation, an aspect of the history of the statute that has not been fully considered in relation to section one, the provision that has received the most scholarly attention. The occasion of this study is the Supreme Court's reconsideration of Runyon v. McCrary' in Patterson v. McLean Credit …

The Article Iii Judiciary In Its Third Century, Kenneth F. Ripple

Journal Articles

Tonight we celebrate the memory of one of the great American jurists of this century, Robert A. Ainsworth, Jr. In this bicentennial year of our Constitution, it seems most appropriate that we honor the memory of Judge Ainsworth by reflecting on that part of the Constitution to which he exhibited so much devotion—article III, the judicial article.

An Essay On Constitutional Interpretation, Noel Lyon

Osgoode Hall Law Journal

The Article sets out a theory of interpretation where the Charter reflects an authoritative standard of public policy. It is not to be used only as a test of legality but as a test of legitimacy. Section 35 of the Constitution on aboriginal rights offers an opportunity in which the Charter's central concept of fundamental justice in the context of a free and democratic society can be applied to break out of sterile common law conceptions and interpretations. The questions of legitimacy and public policy are instrumental to the way we govern ourselves.

Broken Promises And Involuntary Confessions: May A State Introduce Incriminating Statements Made By A Defendant As A Result Of Promises In A Plea Bargain Agreement If The Defendant Breaches That Agreement?, Bradford Mank

Faculty Articles and Other Publications

There is a substantial constitutional question concerning whether admissions made pursuant to a plea bargain that the defendant has breached are admissible under the fifth amendment's privilege against compelled self-incrimination or the due process clauses of the fifth and fourteenth amendments. Courts have reached conflicting results in regard to whether such statements are voluntary.lo This Article argues that it is difficult to resolve whether such admissions are voluntary because courts have not provided a clear definition as to under what circumstances a confession is voluntary in accordance with the dictates of the fifth and fourteenth amendments.

The Ninth Amendment And The Unwritten Constitution: The Problems Of Constitutional Interpretation, Andrzej Rapaczynski

Faculty Scholarship

This article is about two things; one general, the other specific. The general point is about the nature of interpretation and of the constraints that the text places on interpretation. The specific is about the ninth amendment.

My general claim about interpretation is that no textual provision by itself seriously constrains how it is going to be interpreted. This, I argue, is true not just about the open-ended provisions like the ninth amendment, but quite generally, about all textual provisions. The fact that no text by itself constrains interpretation, however, does not mean that interpretation is unconstrained; only that constraints …

The Authoritarian Impulse In Constitutional Law, Robin West

Georgetown Law Faculty Publications and Other Works

Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul Brest calls the "principle of judicial exclusivity" in our constitutional processes. These theorists contend that because issues of public morality in our culture either are, or tend to become, constitutional issues, all political actors, and most notably legislators and citizens, should consider the constitutional implications of the moral issues of the day. Because constitutional questions are essentially moral questions about how active and responsible citizens should constitute themselves, we …

The First Amendment And The Ideal Of Civic Courage: The Brandeis Opinion In Whitney V. California, Vincent A. Blasi

Faculty Scholarship

"[T]he working class and the employing class have nothing in common ....” So began the Preamble to the Constitution of the I.W.W., the Industrial Workers of the World. "Between these two classes a struggle must go on until the workers of the World organize as a class, take possession of the earth, and the machinery of production and abolish the wage system." Nicknamed the Wobblies, this group advocated a form of militant unionism built around the ideal of One Big Union embracing all industries. The I.W.W. enjoyed its strongest appeal among the miners, loggers, agricultural laborers, and construction workers of …

Stare Decisis And Constitutional Adjudication, Henry Paul Monaghan

Faculty Scholarship

Despite endless literature urging that constitutional adjudication be severed from explorations into the understandings at the creation of the Constitution, original understanding continues to play a prominent role in the Supreme Court's jurisprudence. For the Court, originalism seemingly provides a legitimate ground for decisionmaking; for the people, it provides assurances against judicial usurpation of power properly belonging to other branches of government, or retained by the people themselves.

But difficulties with originalism emerge once the existing constitutional order is actually examined. The Supreme Court's repeated invocations of the Framers' understanding notwithstanding, a significant portion of our constitutional order cannot reasonably …

The Committee On The Constitutional System Proposals: Coherence And Dominance, Philip Chase Bobbitt

Faculty Scholarship

I have been a fellow traveler of the Committee on the Constitutional System virtually since its inception; indeed, I believe I was present when Mr. Cutler first made the speech at the University of Texas that became, "To Form a Government." During all this time I have never been able to quite free myself from the conviction that his concerns were absolutely right and fundamental to our era. Nor have I been able to persuade myself that the reforms that he recommends justify a departure from the framers' conception. I suppose this is why I was selected to give a …

Gideon's Shelter: The Need To Reorganize A Right To Counsel For Indigent Defendants In Eviction Proceedings, Andrew Scherer

Articles & Chapters

No abstract provided.