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Sidestepping Lassiter On The Path To Civil Gideon: Civil Douglas, Steven D. Schwinn Jul 2006

Sidestepping Lassiter On The Path To Civil Gideon: Civil Douglas, Steven D. Schwinn

Faculty Scholarship

Civil Gideon advocates have at each turn faced the scourge of Lassiter v. Department of Social Services, which established (apparently out of whole cloth) a presumption that indigent litigants are entitled to appointed counsel only when physical liberty is at stake. This article proposes side-stepping that presumption by seeking a right to counsel on appeal via Douglas v. California, not a right to counsel at trial via Gideon v. Wainwright. Once established, a civil right to counsel on appeal would presage the inevitable downfall of Lassiter and the establishment of Civil Gideon. This article poses the argument in federal constitutional ...


Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber Jan 2006

Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber

Faculty Scholarship

This paper interprets the constitution of 1791 in light of the constitution of 1787. The persons responsible for the original constitution thought they had secured fundamental rights by a combination of representation, the separation of powers, and the extended republic. The Bill of Rights, in their view, was a minor supplement to the strategies previously employed for preventing abusive government practices. Proposed amendments were less a list of fundamental freedoms than an enumeration of those rights likely to appease moderate anti-Federalists. That many vaguely phrased rights lacked clear legal meaning was of little concern to their Federalist sponsors, who trusted ...


"The Most Extraordinarily Powerful Court Of Law The World Has Ever Known"? - Judicial Review In The United States And Germany, Peter E. Quint Jan 2006

"The Most Extraordinarily Powerful Court Of Law The World Has Ever Known"? - Judicial Review In The United States And Germany, Peter E. Quint

Faculty Scholarship

No abstract provided.


Leading A Constitutional Court: Perspectives From The Federal Republic Of Germany, Peter E. Quint Jan 2006

Leading A Constitutional Court: Perspectives From The Federal Republic Of Germany, Peter E. Quint

Faculty Scholarship

This article, which was a contribution to a Symposium on the office of the Chief Justice of the United States, compares that office with the office of President of the Federal Constitutional Court of Germany. The article concludes that, while the American Chief Justice possesses more authority in most formal respects, the President of the German Court has on occasion exercised an informal public or private influence that goes well beyond anything of the sort that has been attempted (recently at least) by the American Chief Justice.


Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber Jan 2006

Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber

Faculty Scholarship

No abstract provided.


Failed Lessons Of History: The Predictable Shortcomings Of The Partial-Birth Abortion Ban Act, Nancy Kubasek, Daniel Tagliarina Jan 2006

Failed Lessons Of History: The Predictable Shortcomings Of The Partial-Birth Abortion Ban Act, Nancy Kubasek, Daniel Tagliarina

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


A Prayer For Constitutional Comparativism In Eighth Amendment Cases, David C. Gray Jan 2006

A Prayer For Constitutional Comparativism In Eighth Amendment Cases, David C. Gray

Faculty Scholarship

No abstract provided.


Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber Jan 2006

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Faculty Scholarship

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the ...


Gender And Constitutional Design, Paula A. Monopoli Jan 2006

Gender And Constitutional Design, Paula A. Monopoli

Faculty Scholarship

Does the allocation of power between the legislative and executive branches, and the way we define the scope of the executive affect whether women ascend to executive office? In this article, Professor Monopoli argues that the constitutional process of boundary-drawing between the legislative and executive branches of government has implications for how successful women will be in ascending to executive positions. She posits that the Hamiltonian vision of an expansive executive with plenary power is the model least likely to result in women’s ascending to executive office. The essay traces the philosophical heritage of Hamilton’s vision and outlines ...


Sequencing The Dna Of Comparative Constitutionalism: A Thought Experiment, Gordon Silverstein Jan 2006

Sequencing The Dna Of Comparative Constitutionalism: A Thought Experiment, Gordon Silverstein

Maryland Law Review

No abstract provided.


Delegation To Courts And Legitimacy, Karol Soltan Jan 2006

Delegation To Courts And Legitimacy, Karol Soltan

Maryland Law Review

No abstract provided.


Is There A Political Tilt To "Juristocracy"?, Carol Nackenoff Jan 2006

Is There A Political Tilt To "Juristocracy"?, Carol Nackenoff

Maryland Law Review

No abstract provided.


Smoke, Not Fire, Neal Devins Jan 2006

Smoke, Not Fire, Neal Devins

Maryland Law Review

No abstract provided.


The Maryland/Georgetown Constitutional Law Schmooze - Foreword: From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber Jan 2006

The Maryland/Georgetown Constitutional Law Schmooze - Foreword: From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber

Maryland Law Review

No abstract provided.


"The Most Extraordinarily Powerful Court Of Law The World Has Ever Known"? Judicial Review In The United States And Germany, Peter E. Quint Jan 2006

"The Most Extraordinarily Powerful Court Of Law The World Has Ever Known"? Judicial Review In The United States And Germany, Peter E. Quint

Maryland Law Review

No abstract provided.


Distinguishing Formal From Institutional Democracy, Paul Frymer Jan 2006

Distinguishing Formal From Institutional Democracy, Paul Frymer

Maryland Law Review

No abstract provided.


Assessing Juristocracy: Are Judges Rulers Or Agents?, George I. Lovell, Scott E. Lemieux Jan 2006

Assessing Juristocracy: Are Judges Rulers Or Agents?, George I. Lovell, Scott E. Lemieux

Maryland Law Review

No abstract provided.


Beyond Manicheanism: Assessing The New Constitutionalism, Lisa Hilbink Jan 2006

Beyond Manicheanism: Assessing The New Constitutionalism, Lisa Hilbink

Maryland Law Review

No abstract provided.


Juristocracy In The American States?, Robert F. Williams Jan 2006

Juristocracy In The American States?, Robert F. Williams

Maryland Law Review

No abstract provided.


The Justices And The Generals: A Critical Examination Of The U.S. Supreme Court's Tradition Of Deference To The Military, 1918-2004, Steven B. Lichtman Jan 2006

The Justices And The Generals: A Critical Examination Of The U.S. Supreme Court's Tradition Of Deference To The Military, 1918-2004, Steven B. Lichtman

Maryland Law Review

No abstract provided.


Judges, Legislators, And Europe's Law: Common-Law Constitutionalism And Foreign Precedents, Noga Morag-Levine Jan 2006

Judges, Legislators, And Europe's Law: Common-Law Constitutionalism And Foreign Precedents, Noga Morag-Levine

Maryland Law Review

No abstract provided.


Juristocracy In The Trenches: Problem-Solving Judges And Therapeutic Jurisprudence In Drug Treatment Courts And Unified Family Courts, Richard Boldt, Jana Singer Jan 2006

Juristocracy In The Trenches: Problem-Solving Judges And Therapeutic Jurisprudence In Drug Treatment Courts And Unified Family Courts, Richard Boldt, Jana Singer

Maryland Law Review

No abstract provided.


Judicial Power And Mobilizable History, Richard A. Primus Jan 2006

Judicial Power And Mobilizable History, Richard A. Primus

Maryland Law Review

No abstract provided.


Freedom Of Dress: State And Private Regulation Of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, And Piercing, Gowri Ramachandran Jan 2006

Freedom Of Dress: State And Private Regulation Of Clothing, Hairstyle, Jewelry, Makeup, Tattoos, And Piercing, Gowri Ramachandran

Maryland Law Review

No abstract provided.


The Robin Hood Antithesis – Robbing From The Poor To Give To The Rich: How Eminent Domain Is Used To Take Property In Violation Of The Fifth Amendment, Daniel C. Orlaskey Jan 2006

The Robin Hood Antithesis – Robbing From The Poor To Give To The Rich: How Eminent Domain Is Used To Take Property In Violation Of The Fifth Amendment, Daniel C. Orlaskey

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber Jan 2006

From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber

Faculty Scholarship

No abstract provided.


The New Commerce Clause Doctrine In Game Theoretical Perspective, Maxwell L. Stearns Jan 2006

The New Commerce Clause Doctrine In Game Theoretical Perspective, Maxwell L. Stearns

Faculty Scholarship

The Roberts Court emerges at a critical juncture in the development of Commerce Clause doctrine. While the Commerce Clause doctrine implicates concerns for federalism and separation of powers, both of which are rooted in the earliest part of our constitutional history, the new Court presents an ideal opportunity to critically assess existing doctrines and to develop new analytical paradigms. The Rehnquist Court succeeded for the first time in sixty years in imposing substantive limits on the scope of this important source of Congressional power. That Court proved far less successful, however, in developing a coherent normative theory that reconciles the ...