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Avoiding Independent Agency Armageddon, Kent H. Barnett May 2012

Avoiding Independent Agency Armageddon, Kent H. Barnett

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In Free Enterprise Fund v. Public Company Accounting Oversight Board, the U.S. Supreme Court invalidated Congress’ use of two layers of tenure protection to shield Public Company Accounting Oversight Board (PCAOB) members from the President’s removal. The SEC could appoint and remove PCAOB members. An implied tenure-protection provision protected the SEC from the President’s at-will removal. And a statutory tenure-protection provision protected PCAOB members from the SEC’s at-will removal. The Court held that these “tiered” tenure protections unconstitutionally impinged upon the President’s removal power because they prevented the President from holding the SEC responsible for ...


A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine Jan 2012

A Look At The Establishment Clause Through The Prism Of Religious Perspectives: Religious Majorities, Religious Minorities, And Nonbelievers, Samuel J. Levine

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This article traces the Court’s Establishment Clause jurisprudence through several decades, examining a number of landmark cases through the prism of religious minority perspectives. In so doing, the Article aims to demonstrate the significance of religious perspectives in the development of both the doctrine and rhetoric of the Establishment Clause. The Article then turns to the current state of the Establishment Clause, expanding upon these themes through a close look at the 2004 and 2005 cases Elk Grove Unified School District v. Newdow, Van Orden v. Perry, and McCreary County v. American Civil Liberties Union of Kentucky. The article ...


Between Dependency And Liberty: The Conundrum Of Children’S Rights In The Gilded Age, David S. Tanenhaus Jan 2005

Between Dependency And Liberty: The Conundrum Of Children’S Rights In The Gilded Age, David S. Tanenhaus

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Although legal scholars often assume that the history of children's rights in the United States did not begin until the mid twentieth century, this essay argues that a sophisticated conception of children's rights existed a century earlier, and analyzes how lawmakers articulated it through their attempts to define the rights of dependent children. How to handle their cases raised fundamental questions about whether children were autonomous beings or the property of either their parents and/or the state. And, if the latter, what were the limits of parental authority and/or the power of the state acting as ...


"A" Students Go To Court: Is Membership In The National Honor Society A Cognizable Legal Right?, Thomas A. Schweitzer Jan 2000

"A" Students Go To Court: Is Membership In The National Honor Society A Cognizable Legal Right?, Thomas A. Schweitzer

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No abstract provided.


Gateway Widens Doorway To Imposing Unfair Binding Arbitration On Consumers, Jean R. Sternlight Jan 1997

Gateway Widens Doorway To Imposing Unfair Binding Arbitration On Consumers, Jean R. Sternlight

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Hill v. Gateway, is but the most extreme example of a series of court decisions that allow large companies to impose potentially unfair binding arbitration agreements on unwitting consumers. The outcome in Gateway, however, is questionable on federal statutory, common law, and constitutional grounds.


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.


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 Bill Of Rights, Social Contract Theory, And The Rights “Retained” By The People, Thomas B. Mcaffee Jan 1992

The Bill Of Rights, Social Contract Theory, And The Rights “Retained” By The People, Thomas B. Mcaffee

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The Ninth Amendment provides that “[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” There is no question that this Amendment was designed as a savings clause, to ensure that the specification of particular rights would not raise an inference that the Bill of Rights exhausted the rights which the people held as against the newly-created national government. But there is an ongoing debate as to nature of these additional rights retained by the people and as to the sort of claim they might support against the ...


Uncommon Law And The Bill Of Rights: The Woes Of Constitutionalizing State Common-Law Torts, Elaine W. Shoben Jan 1992

Uncommon Law And The Bill Of Rights: The Woes Of Constitutionalizing State Common-Law Torts, Elaine W. Shoben

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During the two-hundred-year history of the Bill of Rights, the Supreme Court occasionally has used those first ten Amendments to constitutionalize state common-law torts. In this essay, Professor Elaine Shoben argues that the Court would be well advised to forgo that practice. Pointing to the Court's experience in constitutionalizing defamation law under the First Amendment, Professor Shoben says when the Court meddles in state tort law, the result is a highly complex and very unsatisfactory body of law. On the Bicentennial of the Bill of Rights, this author recommends that if the Court feels compelled to reform a state ...


Abortion Rights (Symposium: The Supreme Court And Local Government Law; The 1989-90 Term), Eileen Kaufman Jan 1990

Abortion Rights (Symposium: The Supreme Court And Local Government Law; The 1989-90 Term), Eileen Kaufman

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No abstract provided.