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Articles 1 - 18 of 18
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The Executive And The Avoidance Canon, H. Jefferson Powell
The Executive And The Avoidance Canon, H. Jefferson Powell
Faculty Scholarship
No abstract provided.
Private Business As Public Good: Hotel Development And Kelo, Joseph Blocher
Private Business As Public Good: Hotel Development And Kelo, Joseph Blocher
Faculty Scholarship
In the summer of 2004, New Haven Mayor John DeStefano, Jr. announced plans to demolish the all-but-derelict New Haven Coliseum and replace it with a publicly financed redevelopment that would include a 300-room hotel. Critics of the plan immediately objected that the hotel-even if it were completed-was a poor public investment, that there was no demand for such a hotel, and that the money could be better spent elsewhere. Some critics pointed to New Haven's own checkered history of major development projects, especially the failed downtown mall and the famously catastrophic Oak Street redevelopment. As of February 2006, the city …
The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos
The Commerce Power And Criminal Punishment: Presumption Of Constitutionality Or Presumption Of Innocence?, Margaret H. Lemos
Faculty Scholarship
The Constitution requires that the facts that expose an individual to criminal punishment be proved to a jury beyond a reasonable doubt. In recent years, the Supreme Court has taken pains to ensure that legislatures cannot evade the requirements of proof beyond a reasonable doubt and jury presentation through artful statutory drafting. Yet current Commerce Clause jurisprudence permits Congress to do just that. Congress can avoid application of the reasonable-doubt and jury-trial rules with respect to certain critical facts-the facts that establish the basis for federal action by linking the prohibited conduct to interstate commerce-by finding those facts itself rather …
Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler
Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler
Faculty Scholarship
No abstract provided.
Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder
Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder
Faculty Scholarship
No abstract provided.
Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer
Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer
Faculty Scholarship
No abstract provided.
Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler
Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler
Faculty Scholarship
No abstract provided.
Presidential Signing Statements And Executive Power, Curtis A. Bradley, Eric A. Posner
Presidential Signing Statements And Executive Power, Curtis A. Bradley, Eric A. Posner
Faculty Scholarship
A recent debate about the Bush administration's use of presidential signing statements has raised questions about their function, legality, and value. We argue that presidential signing statements are legal and that they provide a useful way for the president to disclose his views about the meaning and constitutionality of legislation. In addition, basic tenets of positive political theory suggest that signing statements do not undermine the separation of powers or the legislative process and that, under certain circumstances, they can provide relevant evidence of statutory meaning. Although President Bush has raised many more constitutional challenges within his signing statements than …
Military Commissions And Terrorist Enemy Combatants, Curtis A. Bradley
Military Commissions And Terrorist Enemy Combatants, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
Parsing The Commander In Chief Power: Three Distinctions, Curtis A. Bradley
Parsing The Commander In Chief Power: Three Distinctions, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
The Assumptions Of Federalism, Erwin Chemerinsky
The Assumptions Of Federalism, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
Kelo’S Moral Failure, Laura S. Underkuffler
Grand Visions In An Age Of Conflict, H. Jefferson Powell
Grand Visions In An Age Of Conflict, H. Jefferson Powell
Faculty Scholarship
Last spring Professor Laurence H. Tribe commented that federal constitutional law is in a state of intellectual disarray: "[I]n area after area, we find ourselves at a fork in the road--a point at which it's fair to say things could go in any. of several directions" and we have "little common ground from which to build agreement." No doubt fortuitously, two of our most formidable constitutional scholars, Akhil R. Amar and Jed Rubenfeld, have recently published systematic studies that implicitly challenge Tribe's conclusion that "ours [is] a peculiarly bad time to be going out on a limb to propound a …
Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher
Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher
Faculty Scholarship
No abstract provided.
Universal Rights And Wrongs, Michael E. Tigar
Universal Rights And Wrongs, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz
Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz
Faculty Scholarship
Constitutions are generally made by people with no previous experience in constitution making. The assistance they receive from outsiders is often less useful than it may appear. The most pertinent foreign experience may reside in distant countries, whose lessons are unknown or inaccessible. Moreover, although constitutions are intended to endure, they are often products of the particular crisis that forced their creation. Drafters are usually heavily affected by a desire to avoid repeating unpleasant historical experiences or to emulate what seem to be successful constitutional models. Theirs is a heavily constrained environment, made even more so by distrust and dissensus …
The Assault On The Constitution: Executive Power And The War On Terrorism, Erwin Chemerinsky
The Assault On The Constitution: Executive Power And The War On Terrorism, Erwin Chemerinsky
Faculty Scholarship
The Bush administration has made unprecedented claims of unchecked executive power. The Constitution reflects a simple model that two branches of government should have to be involved in virtually all major government actions. The Bush administration, however, has claimed the ability to detain individuals, to engage in electronic eavesdropping, and to authorize torture even in violation of federal statutes. The solution must be for courts to reject these broad claims of presidential authority.
Checks And Balances: Congress And The Federal Court, Paul D. Carrington
Checks And Balances: Congress And The Federal Court, Paul D. Carrington
Faculty Scholarship
This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of …