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Constitutional Law

1988

Institution
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A Preface To Constitutional Theory, David B. Lyons Jan 1988

A Preface To Constitutional Theory, David B. Lyons

Faculty Scholarship

We have a plethora of theories about judicial review, including theories about theories, but their foundations require stricter scrutiny. This Essay presents some aspects of the problem through an examination of two important and familiar ideas about judicial review.

The controversy over "noninterpretive" review concerns the propriety of courts' deciding constitutional cases by using extraconstitutional norms. But the theoretical framework has not been well developed and appears to raise the wrong questions about judicial review. Thayer's doctrine of extreme judicial deference to the legislature has received much attention, but his reasoning has been given less careful notice. Thayer's rule rests …

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The Misadventures Of State Postconviction Remedies, Larry Yackle Jan 1988

The Misadventures Of State Postconviction Remedies, Larry Yackle

Faculty Scholarship

In a colloquium concentrating on the lower federal courts' jurisdiction to determine federal claims, it falls to me to treat state court opportunities to adjudicate the same issues in advance of, as an aid to, or in place of federal litigation. To do that, I will have to recount some conventional wisdom regarding the development of federal habeas corpus and state postconviction remedies in tandem during the last half century. In due course, I hope to solicit support for an unconventional conclusion to be drawn from that experience.

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Mind And Hand: Economics And Engineering At The Massachusetts Institute Of Technology, Richard Adelstein Dec 1987

Mind And Hand: Economics And Engineering At The Massachusetts Institute Of Technology, Richard Adelstein

Richard Adelstein

The role of political economy in the curriculum of MIT, with special attention to the thought of Francis Amasa Walker.

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Article Iii As A Fundamental Value -- The Demise Of Northern Pipeline And Its Implications For Congressional Power, George D. Brown Dec 1987

Article Iii As A Fundamental Value -- The Demise Of Northern Pipeline And Its Implications For Congressional Power, George D. Brown

George D. Brown

No abstract provided.

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The Paradox Of A Title: Discrimination Within The Anti-Discrimination Provisions Of The Immigration Reform And Control Act Of 1986, Michael Scaperlanda Dec 1987

The Paradox Of A Title: Discrimination Within The Anti-Discrimination Provisions Of The Immigration Reform And Control Act Of 1986, Michael Scaperlanda

Michael A. Scaperlanda

No abstract provided.

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The Constitutional Priority Of The Charter, Brian Slattery Dec 1987

The Constitutional Priority Of The Charter, Brian Slattery

Brian Slattery

What rules determine the relative priority of the various Constitution Acts among themselves? In particular, how do the Constitution Act, 1982 and the Canadian Charter of Rights and Freedoms stand relative to constitutional provisions enacted after 1982? To what extent do they have the capacity to control later amendments? Various answers might be given to this question. This paper looks first at an answer with strong initial appeal. This invokes a principle of sequential ordering, which maintains that the priority between constitutional enactments is determined simply by the temporal sequence in which they were enacted. While this approach admits that …

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Privatization Of Prisons: An Analysis Of The State Action Requirement Of The Fourteenth Amendment And 42 U.S.C. § 1983, Ira P. Robbins Dec 1987

Privatization Of Prisons: An Analysis Of The State Action Requirement Of The Fourteenth Amendment And 42 U.S.C. § 1983, Ira P. Robbins

Ira P. Robbins

Introduction: The privatization of prisons raises important issues with respect to liability in suits brought by inmates. If a private company operates the prison, the state likely will be directly involved in some aspects of prison life, such as using force when necessary or making quasi-judicial decisions, but it may not be directly involved in the day-to-day operation of the institution. This dichotomy of involvement may lead to con- fusion over responsibility and accountability when a violation of rights is alleged to have occurred. When a private party, as opposed to a government employee, is charged with abridging rights guaranteed …

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The Unconstitutional Seizure Of Vehicles: Iowa Towing Statutes Collide With The Federal Constitution, David Walter Dec 1987

The Unconstitutional Seizure Of Vehicles: Iowa Towing Statutes Collide With The Federal Constitution, David Walter

David Walter

No abstract provided.

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