Digital Commons Network^™

We The Unconventional American People, James E. Fleming

Faculty Scholarship

In his 1991 volume, We the People: Foundations, Bruce Ackerman urged us as Americans to declare our independence from European models of government and to “look inward” to rediscover our distinctive constitutional scheme--dualist democracy.1 In his new volume, We the People: Transformations, he exhorts us as dualist democrats to break up the monopoly that Article V of the Constitution has held on our vision of constitutional amendment. He urges us to move “beyond Article V” and to embrace a pluralist understanding of the sources of higher lawmaking (pp 15-17). Only by doing so, he argues, will we be able …

Ultra Vires Takings, Matthew D. Zinn

Michigan Law Review

When does legislative or administrative regulatory action "go[] too far" and effectively amount to an .appropriation of private property for which the Fifth Amendment requires just compensation? This question has turned out to be one of the thorniest in American constitutional law. The Supreme Court has identified several circumstances in which one can expect to find a regulatory taking, but its numerous pronouncements on the subject give no clear rule to distinguish compensable takings from noncompensable interference with property rights. Notwithstanding its volume, the commentary on the Takings Clause by and large addresses only proper governmental action that rises to …

Trends. Clinton/Lewinsky, Star Chambers, The Starr Report: E Pluribus Unum Or E Uno Plures?, Ibpp Editor

International Bulletin of Political Psychology

The author discusses the effect of lying on the presidency and impeachment.

The Supreme Court As An Enforcement Agency, Harold J. Krent

Washington and Lee Law Review

No abstract provided.

Constitutional Remedies, Section 1983 And The Common Law, Michael L. Wells

Scholarly Works

Constitutional tort law marries the substantive rights granted by the Constitution to the remedial mechanism of tort law. The sweeping language of 42 U.S.C. 1983 provides that "[e]very person who, under color of any [state law] subjects, or causes to be subjected, any [person] to the deprivation of any [constitutional rights] shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Constitutional tort suits raise, in a new context, many tort-like remedial questions relating to causation, immunity, and damages--and therein lies a problem. The usual source of answers to …

Lie Detection: The Supreme Court's Polygraph Decision, Bennett L. Gershman

Elisabeth Haub School of Law Faculty Publications

In United States v. Scheffer, decided this past Term, the Supreme Court considered for the first time the admissibility of polygraph evidence. The Court held that exclusion of such evidence on behalf of a criminal defendant was supported by valid justifications and offended no constitutional right to present a defense.

Imperfect Death Penalty Not Acceptable, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

The Scope Of Eleventh Amendment Immunity From Suits Arising Under Patent Law After Seminole Tribe V. Florida , Kristen Healey

American University Law Review

No abstract provided.

God And Man In The Yale Dormitories, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Tribute To Professor Richard B. Tyler, William B. Fisch

Faculty Publications

Tribute to Professor Richard B. Tyler

The Ex Post Facto Clause And The Jurisprudence Of Punishment, Wayne A. Logan

Scholarly Publications

No abstract provided.

Endangered Species Act: Standing To Sue. Bennett V. Spear, 117 S. Ct. 1154 (1997)., R. Margaret Dobson

University of Arkansas at Little Rock Law Review

No abstract provided.

Seeley V. State: The Need For Definitional Balancing In Washington Substantive Due Process Law, Kristiana L. Farris

Washington Law Review

Seeley v. State, concerning the medical use of marijuana, underscored yet again the fundamental tensions and flaws in federal substantive due process analysis. The U.S. Supreme Court has increasingly restricted the definition of fundamental rights, leaving many important interests exposed to the highly deferential rational relationship standard for state regulation. Under the bifurcated federal substantive due process test, the initial classification of an individual interest as fundamental or non-fundamental is highly outcome determinative, leading to contorted definitions of individual rights before the test for the validity of a regulation is even applied. Washington has generally followed federal constitutional law …

Remedies For The Misappropriation Of Intellectual Property By State And Municipal Governments Before And After Seminole Tribe: The Eleventh Amendment And Immunity Doctrines, Paul J. Heald, Michael L. Wells

Scholarly Works

Part I of this Article addresses relief available to intellectual property owners under the Takings Clause of the Fifth Amendment. Before Congress's express abrogation of state sovereign immunity in 1992, federal, state, and local governments were nonetheless potentially liable for misappropriations of intellectual property that constituted takings without just compensation. This examination of the Supreme Court's Fifth Amendment jurisprudence is also key to answering the critical question of whether federal patent, copyright, and trademark laws establish rights in “property” for the purposes of the Fourteenth Amendment, for only under section 5 of the Fourteenth Amendment may Congress abrogate a state's …

L'Indépendance Judiciaire Et La Cour Suprême: Reconstruction Historique Douteuse Et Théorie Constitutionnelle De Complaisance, Jean Leclair, Yves-Marie Morissette

Osgoode Hall Law Journal

The recent decision of the Supreme Court of Canada in the Reference re: Remuneration of Judges in the Provincial Court of Prince Edward Island has given judicial independence a surprising interpretation. A majority of the Court stated that this principle requires legislative bodies to establish independent procedures for setting judicial salaries. The Court maintained that the basis of judicial independence is to be found in the preamble of the Constitution Act, 1867, rather than the express provisions of the constitutional text. The authors argue in Part I of this article that the Court transformed fundamentally and without reason traditional conceptions …

Equal Educational Opportunity And Constitutional Theory: Preliminary Thoughts On The Role Of School Choice And The Autonomy Principle, Michael Heise

Cornell Law Faculty Publications

Inadequate schools impede America's long-standing quest for greater equal educational opportunity. The equal educational opportunity doctrine, traditionally moored in terms of race, has expanded to include notions of educational adequacy. Educational adequacy is frequently construed in terms of educational spending and framed in terms largely incident to constitutional litigation.

This paper explores the potential intersections of the school choice and school finance movements, particularly as they relate to litigation and policy. The paper argues that school choice policies constitute a viable remedy for successful school finance litigation and form a remedy that simultaneously advances individual autonomy, one critical constitutional principle.

The Constitutionalism Of Mary Ann Glendon, Donald P. Kommers

Journal Articles

Mary Ann Glendon is an accomplished legal scholar whose books and essays in the field of marriage and family law have received universal acclaim among her peers in the legal academy. More recently, and particularly in the last decade, she has emerged as a notable public intellectual. In this capacity, she has focused her careful reflections on topics such as abortion, religious liberty, social welfare legislation, the changing nature of the legal profession, and the condition of political discourse in America. One of the things that makes her recent work, as well as her earlier publications on family law, so …

O Estado De Necessidade Legislativo E As Medidas Provisórias, Ivo T. Gico Jr., Danielle C. Lanius

Ivo Teixeira Gico Jr.

As medidas legislativas de urgência são geralmente motivadas por uma necessidade premente de normatização que não comporta - em tese - o trâmite legislativo normal. O presente trabalho explora a regulação desse Estado de Necessidade Legislativo no Brasil e no Direito Comparado para tentar identificar limites jurídicos à legislação de urgência.

Constitutional Law, Robin Jean Davis, Louis J. Palmer Jr.

West Virginia Law Review

No abstract provided.

Constitutionalizing Kwik-E-Mart, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

The Continuing Validity Of Disparate Impact Analysis For Federal-Sector Age Discrimination Claims , Keith R. Fentonmiller

American University Law Review

No abstract provided.

Sex-Based Discrimination In U.S. Immigration Law: The High Court's Lost Opportunity To Bridge The Gap Between What We Say And What We Do , Debra L. Satinoff

American University Law Review

No abstract provided.

From George Carlin To Matt Drudge: The Constitutional Implications Of Bringing The Paparazzi To America , Lyle Denniston

American University Law Review

No abstract provided.

The Unnecessary Demise Of The Line Item Veto Act: The Clinton Administration's Costly Failure To Seek Acknowledgement Of "National Security Rescission" , Roy E. Brownell_Ii

American University Law Review

No abstract provided.

Vigilantism Revisited: An Economic Analysis Of The Law Of Extra-Judicial Self-Help Or Why Can't Dick Shoot Henry For Stealing Jane's Truck? , Kelly D. Hine

American University Law Review

No abstract provided.

Chemical Castration: Constitutional Issues Of Due Process, Equal Protection, And Cruel And Unusual Punishment, Linda Beckman

West Virginia Law Review

No abstract provided.

Remedies For The Misappropriation Of Intellectual Property By State And Municipal Governments Before And After Seminole Tribe: The Eleventh Amendment And Other Immunity Doctrines, Paul J. Heald, Michael L. Wells

Washington and Lee Law Review

No abstract provided.

The Moral Failure Of The Clear And Present Danger Test, David R. Dow

William & Mary Bill of Rights Journal

The clear and present danger test has been used for almost a century to determine the speech the government may restrain. This test assumes that at some point speech transforms into an act and at that moment the speech becomes punishable. Under the clear and present danger test, the First Amendment does not protect speech that is an incitement to imminent lawless action. Professor Dow suggests that the clear and present danger test protects too little speech. He posits that speech should be protected unless the following three conditions are met: (1) the speaker's specific intent in uttering the words …

Justice Or Injustice For The Poor?: A Look At The Constitutionality Of Congressional Restrictions On Legal Services, J. Dwight Yoder

William & Mary Bill of Rights Journal

Upon enacting the Legal Services Corporation Act in 1974, Congress created the Legal Services Corporation (LSC), which provides federal funding to grantees that perform legal services for low-income individuals. In recent years, Congress has enacted restrictions upon grantees' receipt of such federal funding, limiting the legal services these legal aid attorneys can provide to their clients. This move has sparked great debate. Proponents of the restrictions argue that they are needed to correct abuse and misuse of the legal services program, while opponents argue that the restrictions only harm low-income individuals.

In this Note, the author addresses this controversial issue …

The Evolution Of Religious Beliefs In A Constitutional Text, Alfredo Quispe Correa

BYU Law Review

No abstract provided.