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Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber Jul 2008

Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber

Mark Graber

“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally …


Mistretta Versus Marbury: The Foundations Of Judicial Review, Maxwell L. Stearns Jul 2008

Mistretta Versus Marbury: The Foundations Of Judicial Review, Maxwell L. Stearns

Maxwell L. Stearns

No abstract provided.


Unconstitutional On Its Face, Robert Lipkin Dec 2007

Unconstitutional On Its Face, Robert Lipkin

Robert Justin Lipkin

No abstract provided.


No Scrutiny Whatsoever: Deconstitutionalization Of Poverty Law, Dual Rules Of Law, And Dialogic Default, Julie Nice Dec 2007

No Scrutiny Whatsoever: Deconstitutionalization Of Poverty Law, Dual Rules Of Law, And Dialogic Default, Julie Nice

Julie A. Nice

This article traces how the Supreme Court has deconstitutionalized Poverty Law by four departures from normal constitutional doctrine: first, by categorical immunization of “social or economic legislation”; second, by circumvention of normal suspect class or classification analysis; third, by application of rationality review in a reflexive manner to uphold governmental regulation; and fourth, by ratcheting down from the heightened scrutiny normally used for protection of established fundamental rights. In particular, she explores the historical emergence of judicial deference for “social or economic legislation,” and finds that Justice Douglas, who coined the phrase, specifically rejected deference for laws that disadvantaged poor …


Finding Shared Values In A Diverse Society: Lessons From The Intelligent Design Controversy, Alan E. Garfield Dec 2007

Finding Shared Values In A Diverse Society: Lessons From The Intelligent Design Controversy, Alan E. Garfield

Alan E Garfield

One of the nation’s more profound and volatile ideological divides is between fundamentalist religious adherents and secular members of society. This divide has been particularly salient in recent years as issues challenging traditional religious morality – abortion, gay marriage, and stem-cell research – have been exploited as wedge issues for political gain. In this Article, I join the efforts of other scholars to find a way to bridge the gap between religious and secular Americans. By focusing on one particularly contentious front in the religious-secular wars – the teaching of intelligent design – I am able to identify a value …


‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson Dec 2007

‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson

Stephen E Henderson

If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment. Although it is a close question, I conclude that the Fourth Amendment typically does not restrict a move on (MO) order, and that substantive due process only prohibits the most egregious such orders. It is a question of broad significance given the many legitimate reasons police might order persons to move on, as …