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The New Due Process: Rights And Remedies, Doug R. Rendleman
The New Due Process: Rights And Remedies, Doug R. Rendleman
Doug Rendleman
This article discusses the "new" due process. Perhaps new is a misnomer. Due process was not discovered recently. It has been around a long time protecting varying interests from arbitrary action. The discovery called the "new" due process is merely that procedural protections are not so limited as previously thought. This article will examine the interests encompassed by the new due process and the remedial apparatus now being developed to protect those interests.
Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent, Doug Rendleman, Douglas Laycock
Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent, Doug Rendleman, Douglas Laycock
Doug Rendleman
Restitution may be a casualty in a collision with the constitutional law of standing. Article III is traditionally said to require an “injury in fact” for standing to be a plaintiff in federal court. Edwards, who alleges that First American paid a bribe or kickback in violation of the federal Real Estate Settlement Procedures Act, seeks to recover the statutory penalty. Defendant argues that even if it violated the Act, Edwards suffered no “injury in fact.” Our amicus brief in support of Edwards alerts the Supreme Court to the many restitutionary claims either for a wrongdoer’s profits or to set …
Cheer On Separation Of School, Religious Messages, Alan E. Garfield
Cheer On Separation Of School, Religious Messages, Alan E. Garfield
Alan E Garfield
No abstract provided.
Takings And Transitions, Holly Doremus
The Constitutional Right To Education In India: Horizontal Dimensions, Shubhankar Dam
The Constitutional Right To Education In India: Horizontal Dimensions, Shubhankar Dam
Shubhankar Dam
No abstract provided.
Police Can Stop You For Having A License Plate Bracket On Your Car, Beau James Brock, Rikki Weger
Police Can Stop You For Having A License Plate Bracket On Your Car, Beau James Brock, Rikki Weger
Beau James Brock
The Fourth Amendment must be protected from police excesses. Now, law enforcement is relying upon the most hyper-technical of violations to stop a vehicle. Both attorneys and judges must guard against the temptation that the ends will justify the means, only to find out later we sold out our freedom to the golden calf of drug interdiction.
Supreme Court Ponders Drug-Detection Dog's 'Sniff Test', Alan E. Garfield
Supreme Court Ponders Drug-Detection Dog's 'Sniff Test', Alan E. Garfield
Alan E Garfield
No abstract provided.
Affirmative Action In Education Weighed Again, Alan E. Garfield
Affirmative Action In Education Weighed Again, Alan E. Garfield
Alan E Garfield
No abstract provided.
What's Wrong With Us Political System?, Alan E. Garfield
What's Wrong With Us Political System?, Alan E. Garfield
Alan E Garfield
No abstract provided.
Ethnicity And The Constitution: Beyond The Black And White Binary Constitution, Juan F. Perea
Ethnicity And The Constitution: Beyond The Black And White Binary Constitution, Juan F. Perea
Juan F. Perea
No abstract provided.
Can He Legally Do That? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival
Can He Legally Do That? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival
Robert Percival
No abstract provided.
Habeas Verité, Lee B. Kovarsky
Habeas Verité, Lee B. Kovarsky
Lee Kovarsky
Three recent books from varied academic disciplines demonstrate that habeas is as much about power as it is about liberty - the power of some judges over other magistrates, the power of the judiciary over coordinagte governing institutions, and the power of dominant political coalitions ovefr the opposition.
Health Care Back Where It Belongs, Before The Voters, Alan E. Garfield
Health Care Back Where It Belongs, Before The Voters, Alan E. Garfield
Alan E Garfield
No abstract provided.
El Fin Último De La Constitución, Juan Carlos Riofrío Martínez-Villalba
El Fin Último De La Constitución, Juan Carlos Riofrío Martínez-Villalba
Juan Carlos Riofrío Martínez-Villalba
El artículo analiza cómo todos los fines constitucionales apuntan a desarrollar un fin último de todos ellos: la vida digna, la buena vida o "sumak kawsay" de la Constitución ecuatoriana. Ello refleja también una jerarquía intraconstitucional de fines, principios y derechos, conforme se analiza en este estudio.
Freedom Of Speech And The ‘Occupy’ Protests: ‘Narrowly Tailored To Further Significant Government Interests’, Mel Cousins
Freedom Of Speech And The ‘Occupy’ Protests: ‘Narrowly Tailored To Further Significant Government Interests’, Mel Cousins
Mel Cousins
This note examines the spate of recent court decisions concerning efforts by Occupy protestors in various cities of the USA to prevent the removal (or restriction) of their protests. In general, though by no means in all cases, the courts, applying existing freedom of speech principles, have upheld the protestors’ right to protest to some extent but have placed narrow limits around the manner in which this right may be exercised. Following a short introduction (Part 1), Part 2 discuses the approach which has been taken by the courts in recent cases. The approach adopted contrasts sharply with the Supreme …
United States V. Klein, Then And Now, Gordon G. Young
United States V. Klein, Then And Now, Gordon G. Young
Gordon G. Young
United States v. Klein, decided during Reconstruction, was the first Supreme Court case to invalidate a statutory restriction on federal courts’ jurisdiction. It is the only one to do so by finding a violation of Article III of the Constitution. Klein has been cited in thirty-three United States Supreme Court opinions, and roughly five hundred times each by lower federal courts and law journal articles. Recent commentators have read Klein both too broadly and narrowly. Its central holding is that Congress may not grant federal courts jurisdiction to decide a set of cases on the merits while depriving them …
Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber
Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber
Mark Graber
The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of …
Religious Right Versus Government Interest, Alan E. Garfield
Religious Right Versus Government Interest, Alan E. Garfield
Alan E Garfield
No abstract provided.
The Constitutional Bounding Of Adjudication: A Fuller(Ian) Explanation For The Supreme Court's Mass Tort Jurisprudence, Donald G. Gifford
The Constitutional Bounding Of Adjudication: A Fuller(Ian) Explanation For The Supreme Court's Mass Tort Jurisprudence, Donald G. Gifford
Donald G Gifford
In this Article, I argue that the Supreme Court is implicitly piecing together a constitutionally mandated model of bounded adjudication governing mass torts, using decisions that facially rest on disparate constitutional provisions. This model constitutionally restricts common law courts from adjudicating the rights, liabilities, and interests of persons who are neither present before the court nor capable of being defined with a reasonable degree of specificity. I find evidence for this model in the Court’s separate decisions rejecting tort-based climate change claims, global settlements of massive asbestos litigation, and punitive damages awards justified as extra-compensatory damages. These new forms of …
Obama Didn't Deny Court's Right Of Review, Alan E. Garfield
Obama Didn't Deny Court's Right Of Review, Alan E. Garfield
Alan E Garfield
No abstract provided.
Federalist Or Friends Of Adams: The Marshall Court And Party Politics, Mark A. Graber
Federalist Or Friends Of Adams: The Marshall Court And Party Politics, Mark A. Graber
Mark Graber
No abstract provided.
The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins
The Anatomy Of A Search: Intrusiveness And The Fourth Amendment, Renée Mcdonald Hutchins
Renée M. Hutchins
No abstract provided.
Farm Workers, Equal Treatment And Insurability: Griego V New Mexico Workers’ Compensation Administration, Mel Cousins
Farm Workers, Equal Treatment And Insurability: Griego V New Mexico Workers’ Compensation Administration, Mel Cousins
Mel Cousins
The US courts have considered a number of cases where a person has argued that his or her exclusion from insurability (either in social security, unemployment insurance or workers compensation) was in breach of the guarantee of equal protection in federal and/or state constitutions. The Social Security Act had originally entirely excluded domestic and agricultural workers. Early cases upholding the constitutionality of the Social Security Act had, inter alia, held that the exclusion of certain classes of worker from the scope of coverage did not render the legislation unconstitutional. However, these cases had not involved claims of racial, economic or …
Liberty Isn't The Issue In Health Care Case, Alan E. Garfield
Liberty Isn't The Issue In Health Care Case, Alan E. Garfield
Alan E Garfield
No abstract provided.
Defining Corruption And Constitutionalizing Democracy, Deborah Hellman
Defining Corruption And Constitutionalizing Democracy, Deborah Hellman
Deborah Hellman
The central front in the battle over campaign finance laws is the definition of corruption. The Supreme Court has allowed restrictions on giving and spending money in connection with elections only when they serve to avoid corruption or its appearance. The constitutionality of such laws, therefore, depends on how the Court defines corruption. Over the years, campaign finance cases have conceived of corruption in both broad and narrow terms, with the most recent cases defining it especially narrowly. While supporters and critics of campaign finance laws have argued for and against these different formulations, both sides have missed the more …
Disclosure's Effects: Wikileaks And Transparency, Mark Fenster
Disclosure's Effects: Wikileaks And Transparency, Mark Fenster
Mark Fenster
When Is A Lie An Affront To The Law?, Alan E. Garfield
When Is A Lie An Affront To The Law?, Alan E. Garfield
Alan E Garfield
No abstract provided.
The Curious Case Of Tribunalization, Khagesh Gautam Prof.
The Curious Case Of Tribunalization, Khagesh Gautam Prof.
Khagesh Gautam
No abstract provided.
Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber
Hollow Hopes And Exaggerated Fears: The Canon/Anticanon In Context, Mark A. Graber
Mark Graber
Students of American constitutionalism should add constitutional decisions made by elected officials to the constitutional canon and the constitutional anticanon. Neither the canonical nor the anticanonical constitutional decisions by the Supreme Court have produced the wonderful results or horrible evils sometimes attributed to them. In many cases, elected officials made contemporaneous constitutional decisions that had as much influence as the celebrated or condemned judicial rulings. More often than not, judicial rulings matter more as a result of changing the political dynamics than by directly changing public policy. Law students and others interested in constitutional change, for these reasons, need to …
Plus Or Minus One: The Thirteenth And Fourteenth Amendments, Mark A. Graber
Plus Or Minus One: The Thirteenth And Fourteenth Amendments, Mark A. Graber
Mark Graber
The consensus that the Fourteenth Amendment incorporates the Thirteenth Amendment has come under sharp criticism in recent years. Several new works suggest that the Thirteenth Amendment, properly interpreted, protects some substantive rights not protected by the Fourteenth Amendment. Some of this scholarship is undoubtedly motivated by an effort to avoid hostile Supreme Court precedents. Nevertheless, more seems to be going on than mere litigation strategy. Scholars detected different rights and regime principles in the Thirteenth Amendment than they find in the Fourteenth Amendment. The 2011 Maryland Constitutional Law Schoomze, to which this is an introduction, provided an opportunity for law …