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Original Intent And Article Iii, Michael L. Wells, Edward J. Larson Nov 1995

Original Intent And Article Iii, Michael L. Wells, Edward J. Larson

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Article III of the United States Constitution sets limits on the ability of the legislature to expand or contract the jurisdiction of the federal courts. The Supreme Court has generally held that Article III's restraints on the power of the legislature to restrict the jurisdiction of the federal courts are few and extremely permissive. Many scholars, however, argue that Article III imposes some strong limitations on the legislature's ability to define federal jurisdiction. Strangely, both sides of the debate rely on originalist arguments. This Article argues that reliance on the Framers' intent to resolve issues of federal courts ...


Commerce Clause Restraints On State Taxation After Jefferson Lines, Walter Hellerstein, Michael J. Mcintyre, Richard D. Pomp Oct 1995

Commerce Clause Restraints On State Taxation After Jefferson Lines, Walter Hellerstein, Michael J. Mcintyre, Richard D. Pomp

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The Supreme Court's 1977 decision in Complete Auto Transit, Inc. v. Brady signaled a paradigmatic shift in the Court's approach to state tax adjudication under the dormant Commerce Clause. In Complete Auto, the Court repudiated the formalistic school of interpretation that once had governed Commerce Clause analysis of state taxation because it bore ‘no relationship to economic realities.’ In its place, the Court embraced a decisional framework that ‘considered not the formal language of the tax statute but rather its practical effect.’ In furtherance of this objective, the Court suggested a four-part test to guide the constitutional analysis ...


Constitutional Torts: Combining Diverse Doctrines And Practicality, Thomas A. Eaton, Michael Wells Mar 1995

Constitutional Torts: Combining Diverse Doctrines And Practicality, Thomas A. Eaton, Michael Wells

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Constitutional Torts is, in part, a response to our sense that the upper level curriculum could be improved by courses that bring together areas of doctrine that are often studied in isolation. We think there is substantial value in bringing together seemingly disparate areas of doctrine that bear on a common real-world problem. Students benefit from learning how to put together concepts from different substantive areas in order to solve problems they will face in practice.


Employment Discrimination: Recent Developments In The Supreme Court (Symposium: The Supreme Court And Local Government Law, 1993-1994 Term), Eileen Kaufman Jan 1995

Employment Discrimination: Recent Developments In The Supreme Court (Symposium: The Supreme Court And Local Government Law, 1993-1994 Term), Eileen Kaufman

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No abstract provided.


The Supreme Court's Land Use Decisions (Symposium - The Supreme Court And Local Government Law, 1993-94 Term), Leon D. Lazer Jan 1995

The Supreme Court's Land Use Decisions (Symposium - The Supreme Court And Local Government Law, 1993-94 Term), Leon D. Lazer

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No abstract provided.


Hate Speech On Campus And The First Amendment: Can They Be Reconciled?, Thomas A. Schweitzer Jan 1995

Hate Speech On Campus And The First Amendment: Can They Be Reconciled?, Thomas A. Schweitzer

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No abstract provided.


The Progeny Of Lee V. Weisman: Can Student-Invited Prayer At Public School Graduation Still Be Constitutional?, Thomas A. Schweitzer Jan 1995

The Progeny Of Lee V. Weisman: Can Student-Invited Prayer At Public School Graduation Still Be Constitutional?, Thomas A. Schweitzer

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No abstract provided.


The Constitution Of Belarus: A Good First Step Towards The Rule Of Law, Gary M. Shaw Jan 1995

The Constitution Of Belarus: A Good First Step Towards The Rule Of Law, Gary M. Shaw

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No abstract provided.


The Commerce Clause Quartet, Martin A. Schwartz, Leon D. Lazer Jan 1995

The Commerce Clause Quartet, Martin A. Schwartz, Leon D. Lazer

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No abstract provided.


Brown And The Doctrine Of Precedent: A Concurring Opinion, Thomas B. Mcaffee Jan 1995

Brown And The Doctrine Of Precedent: A Concurring Opinion, Thomas B. Mcaffee

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This article is part of a symposium sponsored by Southern Illinois University regarding Brown v. Board of Education. In this article, the author addresses the question of what opinion he would have written had he been a justice on the U.S. Supreme Court when the case was decided.

The author indicates he would have concurred in those opinions finding a violation of the Equal Protection Clause of the Fourteenth Amendment in Brown v. Board of Education. The author finds persuasive the argument that any other decision would permit states to evade the core purpose of the Fourteenth Amendment. Nevertheless ...


Taking Liberties With The First Amendment: Congress, Section 5, And The Religious Freedom Restoration Act, Jay S. Bybee Jan 1995

Taking Liberties With The First Amendment: Congress, Section 5, And The Religious Freedom Restoration Act, Jay S. Bybee

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In 1993 Congress enacted the Religious Freedom Restoration Act (“RFRA”), which provided that government, including the United States and the states, “shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability” except where the government can demonstrate that the burden furthers “a compelling governmental interest” and is “the least restrictive means of furthering that interest.”

Unfortunately, whatever consistency RFRA might bring to the substance of church-state relations comes at the expense of clarity in federal-state relations. This is unfortunate because the First Amendment does not address church-state relations; it ...


Substance Above All: The Utopian Vision Of Modern Natural Law Constitutionalists, Thomas B. Mcaffee Jan 1995

Substance Above All: The Utopian Vision Of Modern Natural Law Constitutionalists, Thomas B. Mcaffee

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Modern natural law constitutionalists assert that the Constitution, properly understood, includes a kind of general trump card in the form of a moral reality which provides (or is, at any rate, thought to provide) a measure of all positive legal acts--whether framed in terms of the values of natural equality, natural rights, or “simple justice.”

This article explores why “trump card” natural law constitutionalism cannot by its nature adequately confront crucial issues of institutional design and democratic theory. In thus putting questions of moral substance ahead of crucial issues of authority, natural law constitutionalism appears to rest on a naive ...


The Brown Symposium – An Introduction, Thomas B. Mcaffee Jan 1995

The Brown Symposium – An Introduction, Thomas B. Mcaffee

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This article is an introduction to a symposium sponsored by Southern Illinois University regarding Brown v. Board of Education.


Comment, The Augustan Constitution And Our Natural Rights Tradition: Is There A Conflict?, Thomas B. Mcaffee Jan 1995

Comment, The Augustan Constitution And Our Natural Rights Tradition: Is There A Conflict?, Thomas B. Mcaffee

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Professor Hoffheimer has provided us with a striking picture of two important strands of our constitutional heritage. The first, which he labels “Augustan constitutionalism,” descended from classical political thought and the English constitution. Its focus is on the governmental powers that it legitimates, and its themes relate to the forms of government; in the American context, this means that its focus is on separation of powers, checks and balances, and (in general) the problem of organizing and dividing government authority. The second, which he calls the “natural rights tradition,” roots government's legitimacy--and indeed its origin and purpose--in the protection ...


The Impact Of The Garcia Decision On The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen Jan 1995

The Impact Of The Garcia Decision On The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen

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In National League of Cities v. Usery, the Supreme Court recognized a strong state-sovereignty-based limit on Congress's exercise of its commerce power. In Garcia v. San Antonio Metropolitan Transit Authority, however, the Court overruled National League of Cities, relying in part on past difficulties in trying to distinguish between protected state “governmental” activities and unprotected state “proprietary” activities. In the wake of Garcia, commentators have urged that its reasoning undermines the Court's longstanding exemption of state proprietary activities from dormant Commerce Clause challenge under the so-called “market-participant” doctrine.

In this article, Professor Dan Coenen refutes this argument by ...