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Articles 61 - 90 of 400
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Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman
Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman
Barry Cushman
This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly …
Lost Fidelities, Barry Cushman
The Secret Lives Of The Four Horsemen, Barry Cushman
The Secret Lives Of The Four Horsemen, Barry Cushman
Barry Cushman
"Outlined against red velvet drapery on the first Monday of October, the Four Horsemen rode again. In dramatic lore they are known as Famine, Pestilence, Destruction, and Death. These are only aliases. Their real names are Van Devanter, McReynolds, Sutherland, and Butler. They formed the crest of the reactionary cyclone before which yet another progressive statute was swept over the precipice yesterday morning as a packed courtroom of spectators peered up at the bewildering panorama spread across the mahogany bench above." Or so Grantland Rice might have written, had he been a legal realist. For more than two generations scholars …
Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Doug Cassell
Liberty, Judicial Review, And The Rule Of Law At Guantanamo: A Battle Half Won, Doug Cassell
Douglass Cassel
In Boumediene v. Bush, 128 S. Ct. 2229 (2008), five members of the Supreme Court held that foreign prisoners at Guantanamo enjoy the constitutional privilege of habeas corpus; that their imprisonment had lasted too long for the Court to await completion of statutory review by lower courts of military tribunal findings that the prisoners were "enemy combatants"; and that the statutory judicial review was too deficient to substitute for the Great Writ. Four Justices vigorously dissented. On the surface they differed on the history of the reach of the common law writ of habeas corpus, and on the procedural guarantees …
Severability, John C. Nagle
Severability, John C. Nagle
John Copeland Nagle
When a court holds a provision of a statute unconstitutional, a question remains regarding the validity of the remainder of the statute. The court may find that the unconstitutional provision may be severed from the statute and leave the remainder of the statute in effect. Alternatively, the court may hold that the unconstitutional provision cannot be severed and invalidate the entire statute. This article argues that the jurisprudence surrounding the issue of severability is confusing and inconsistent. After explaining the concept of severability and its ramifications for statutes, I trace the development of the current judicial test for determining when …
The Lame Ducks Of Marbury, John C. Nagle
The Lame Ducks Of Marbury, John C. Nagle
John Copeland Nagle
The election of 1800 was one of the most contested - and important - in American history. After it became clear that neither President John Adams nor a Federalist majority in Congress had been reelected, they acted during the lame-duck period to preserve their influences far into the future. They did so by appointing John Marshall as Chief Justice, ratifying the Treaty with France, creating numerous new federal judicial positions, and filling many of those positions with friends, family, and Federalists (including William Marbury). Not surprisingly, Jefferson and his supporters protested these actions as contrary to the will of the …
Direct Democracy And Hastily Enacted Statutes, John C. Nagle
Direct Democracy And Hastily Enacted Statutes, John C. Nagle
John Copeland Nagle
No abstract provided.
A Twentieth Amendment Parable, John C. Nagle
A Twentieth Amendment Parable, John C. Nagle
John Copeland Nagle
The twentieth amendment receives virtually no attention in modern American constitutional law. Adopted in 1933, the primary purpose of the amendment was to eliminate lame-duck Congresses. The proponents of the amendment argued that lame-ducks were subject to nefarious influences and that allowing lame-duck legislation contradicted the voice of the people in the most recent election. But the text of the twentieth amendment simply moved the date on which the newly elected President and Congress took office from March to January, and does not expressly prohibit lame-duck legislation. The framers of the amendment could not conceive of Congress meeting during the …
Waiving Sovereign Immunity In An Age Of Clear Statement Rules, John C. Nagle
Waiving Sovereign Immunity In An Age Of Clear Statement Rules, John C. Nagle
John Copeland Nagle
No abstract provided.
The Constitutional Theory Of The Fourth Amendment, Gerard V. Bradley
The Constitutional Theory Of The Fourth Amendment, Gerard V. Bradley
Gerard V. Bradley
No abstract provided.
Imagining The Past And Remembering The Future: The Supreme Court's History Of The Establishment Clause, Gerard V. Bradley
Imagining The Past And Remembering The Future: The Supreme Court's History Of The Establishment Clause, Gerard V. Bradley
Gerard V. Bradley
No abstract provided.
Forum Juridicum: Church Autonomy In The Constitutional Order - The End Of Church And State?, Gerard V. Bradley
Forum Juridicum: Church Autonomy In The Constitutional Order - The End Of Church And State?, Gerard V. Bradley
Gerard V. Bradley
No abstract provided.
Beguiled: Free Exercise Exemptions And The Siren Song Of Liberalism, Gerard V. Bradley
Beguiled: Free Exercise Exemptions And The Siren Song Of Liberalism, Gerard V. Bradley
Gerard V. Bradley
No abstract provided.
The Bill Of Rights And Originalism, Gerard V. Bradley
The Bill Of Rights And Originalism, Gerard V. Bradley
Gerard V. Bradley
Professor Bradley begins the final installment of the University of Illinois Law Review's year-long tribute to the Bill of Rights by proposing that the first ten Amendments, like the Constitution itself, be interpreted according to the original understanding of their ratifiers. Professor Bradley, though, narrows the scope of the exegetical inquiry to what he proposes is the only sound originalism - plain meaning, historically recovered. Professor Bradley argues that interpreting the Bill of Rights according to the text's plain meaning among persons politically active at the time of drafting avoids both the inflexibility and philosophical deficiencies of "snapshot" conservative originalism …
Supreme Court Heads Into A New Term, Gerry Bradley
Supreme Court Heads Into A New Term, Gerry Bradley
Gerard V. Bradley
Gerard Bradley was quoted in the National Catholic Register article Supreme Court Heads Into a New Term by JOAN FRAWLEY DESMOND on October 9. Gerard Bradley, an expert on constitutional law at the University of Notre Dame Law School, told the Register that the justices will decide “whether states have the power to limit a doctor’s prescription of RU-486 to the FDA protocols.” But there is a larger issue at stake for abortion facilities that resist this kind of oversight. “I think the outcome is important and will actually turn on the larger question of whether Oklahoma is setting up …
The Fourth Amendment Status Of Stored E-Mail: The Law Professors' Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia
The Fourth Amendment Status Of Stored E-Mail: The Law Professors' Brief In Warshak V. United States, Susan Freiwald, Patricia L. Bellia
Patricia L. Bellia
This paper contains the law professors' brief in the landmark case of Warshak v. United States, the first federal appellate case to recognize a reasonable expectation of privacy in electronic mail stored with an Internet Service Provider (ISP). While the 6th circuit's opinion was subsequently vacated and reheard en banc, the panel decision will remain extremely significant for its requirement that law enforcement agents must generally acquire a warrant before compelling an ISP to disclose its subscriber's stored e-mails. The law professors' brief, co-authored by Susan Freiwald (University of San Francisco) and Patricia L. Bellia (Notre Dame) and signed by …
The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark
The Law Of Nations As Constitutional Law, Anthony J. Bellia, Bradford R. Clark
Anthony J. Bellia
Courts and scholars continue to debate the status of customary international law in U.S. courts, but have paid insufficient attention to the role that such law plays in interpreting and upholding several specific provisions of the Constitution. The modern position argues that courts should treat customary international law as federal common law. The revisionist position contends that customary international law applies only to the extent that positive federal or state law has adopted it. Neither approach adequately takes account of the Constitution’s allocation of powers to the federal political branches in Articles I and II or the effect of these …
Federal Regulation Of State Court Procedures, Anthony J. Bellia
Federal Regulation Of State Court Procedures, Anthony J. Bellia
Anthony J. Bellia
May Congress regulate the procedures by which state courts adjudicate claims arising under state law? Recently, Congress not only has considered several bills that would do so, but has enacted a few of them. This Article concludes that such laws exceed Congress's constitutional authority. There are serious questions as to whether a regulation of court procedures qualifies as a regulation of interstate commerce under the Commerce Clause. Even assuming, however, that it does qualify as such, the Tenth Amendment reserves the power to regulate court procedures to the states. Members of the Founding generation used conflict-of-laws language to describe a …
The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia
The Origins Of Article Iii "Arising Under" Jurisdiction, Anthony J. Bellia
Anthony J. Bellia
Article III of the Constitution provides that the judicial Power of the United States extends to all cases arising under the Constitution, laws, and treaties of the United States. What the phrase arising under imports in Article III has long confounded courts and scholars. This Article examines the historical origins of Article III arising under jurisdiction. First, it describes English legal principles that governed the jurisdiction of courts of general and limited jurisdiction--principles that animated early American jurisprudence regarding the scope of arising under jurisdiction. Second, it explains how participants in the framing and ratification of the Constitution understood arising …
Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer
Copyright And The First Amendment: Comrades, Combatants, Or Uneasy Allies?, Joseph P. Bauer
Joseph P. Bauer
The copyright regime and the First Amendment seek to promote the same goals. Both seek the creation and dissemination of more, better, and more diverse literary, pictorial, musical and other works. But, they use significantly different means to achieve those goals. The copyright Laws afford to the creator of a work the exclusive right to reproduce, distribute, transform, and perform that work for an extended period of time. The First Amendment, on the other hand, proclaims that Congress "shall make no Law... abridging the freedom of speech or of the press, " thus at least nominally indicating that limitations on …
Courting Power, Anil Kalhan
Table Annexed To Article: Secrecy Broken: Reports Of The Delegates Following The Federal Convention, Peter J. Aschenbrenner
Table Annexed To Article: Secrecy Broken: Reports Of The Delegates Following The Federal Convention, Peter J. Aschenbrenner
Peter J. Aschenbrenner
Despite the measures taken to ensure the secrecy of the proceedings during the federal convention, many delegates made reports to their states and explained the choices behind various clauses. However, no delegate had access to the official journal of the constitutional convention.
Table Annexed To Article: Our Constitutional Kinesis: Words That Can Go Like A Machine, Peter J. Aschenbrenner
Table Annexed To Article: Our Constitutional Kinesis: Words That Can Go Like A Machine, Peter J. Aschenbrenner
Peter J. Aschenbrenner
Constitution II, the Philadelphia constitution (1787), inspired many ‘machine/ry’ references. OCL catalogs, with the help of acknowledged secondary sources, a working list of metaphors which were deployed to credit and discredit our second constitution.
Table Annexed To Article: Congress And Parliament Deploy Appraisives (1801-1802), Peter J. Aschenbrenner
Table Annexed To Article: Congress And Parliament Deploy Appraisives (1801-1802), Peter J. Aschenbrenner
Peter J. Aschenbrenner
Parliament (primary text writer, the House of Commons) produced 24,647 words beginning in 1801; in in a comparable interval, Congress produced 27,123 words. By coincidence, this was the first year that Parliament served as the text-writer for the newly-minted United Kingdom of Great Britain and Ireland. Appraisives in the English language, numbering 3,683 have been tested against the Early Constitution. Appraisives in the Early Constitution, 2 OCL 193. This investigation tests the known class of appraisives in these target vocabularies employed by Congress and Parliament. Mean words between ‘hits’ are returned.
“The Pursuit Of Happiness” Comes Home To Roost? Same-Sex Union, The Summum Bonum, And Equality, Patrick Brennan
“The Pursuit Of Happiness” Comes Home To Roost? Same-Sex Union, The Summum Bonum, And Equality, Patrick Brennan
Patrick McKinley Brennan
John Locke understood human happiness to amount to the removal of "uneasiness." This paper argues that,to the extent that the United States is a nation dedicated to "the pursuit of happiness" understood as the removal of "uneasiness," same-sex unions or marriages should be given legal recognition. While Locke defended a variation on traditional marriage on the grounds of progenitiveness and care for dependent offspring, his more foundational commitment to the importance of the removal of uneasiness precludes, on pain of inconsistency, limiting marriage to opposite-sex couples. This paper argues, furthermore, that conservatives and neo-conservatives who celebrate this nation's being …
The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Brennan
The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Brennan
Patrick McKinley Brennan
This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is “mostly illusory” and that Christians, therefore, should practice “faithful presence” in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce contest. The wild …
Legal Affinities: Explorations In The Legal Form Of Thought, Patrick Brennan
Legal Affinities: Explorations In The Legal Form Of Thought, Patrick Brennan
Patrick McKinley Brennan
This is my Introduction to Legal Affinities: Explorations in the Legal Form of Thought (forthcoming 2012) (co-edited with H. Jefferson Powell and Jack Sammons), a volume of essays dedicated to exploring the work of Joseph Vining. The Introduction introduces Vining’s phenomenology of law and surveys the themes and topics developed by the volume’s eight authors: Joseph Vining, Judge John T. Noonan, Jr., Rev. John McCausland, H. Jefferson Powell, Jack Sammons, Steve Smith, James Boyd White, and Patrick Brennan.
The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Mckinley Brennan
The Mighty Work Of Making Nations Happy: A Response To James Davison Hunter, Patrick Mckinley Brennan
Patrick McKinley Brennan
This article is an invited response to James Davison Hunter’s much-discussed book To Change the World: The Irony, Tragedy, and Possibility of Christianity in the Late Modern World (Oxford University Press, 2010). Hunter, a sociologist at UVA and a believing Protestant, claims that law’s capacity to contribute to social change is “mostly illusory” and that Christians, therefore, should practice “faithful presence” in the public square rather than seek to influence law directly. My response is that it is, in fact, law’s stunning ability to alter and limit available choices that makes it an object of deservedly fierce contest. The wild …
The Liberty Of The Church: Source, Scope And Scandal, Patrick Brennan
The Liberty Of The Church: Source, Scope And Scandal, Patrick Brennan
Patrick McKinley Brennan
This article was presented at a conference, and is part of a symposium, on "The Freedom of the Church in the Modern Era." The article argues that the liberty of the Church, libertas Ecclesiae, is not a mere metaphor, pace the views of some other contributions to the conference and symposium and of the mentality mostly prevailing over the last five hundred years. The argument is that the Church and her directly God-given rights are ontologically irreducible in a way that the rights of, say, the state of California or even of the United States are not. Based on a …
Resisting The Grand Coalition In Favor Of The Status Quo By Giving Full Scope To The Libertas Ecclesiae, Patrick Brennan
Resisting The Grand Coalition In Favor Of The Status Quo By Giving Full Scope To The Libertas Ecclesiae, Patrick Brennan
Patrick McKinley Brennan
This paper argues that questions about "religious freedom" must be subordinated to the fundamental principle of the liberty of the Church, libertas Ecclesiae. The First Amendment's agnosticism with respect to the liberty of the Church is not ultimately normative. Catholics and others who merely seek religious "accommodation," as with the HHS mandate, for example, are agents of a status quo that illegitimately has comfortable self-preservation as its highest value. It is Catholic doctrine that "creation was for the sake of the Church," not for the sake of, say, religious freedom. The paper argues that the contingent constitution of …