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Articles 1 - 30 of 90
Full-Text Articles in Entire DC Network
The New Due Process: Rights And Remedies, Doug R. Rendleman
The New Due Process: Rights And Remedies, Doug R. Rendleman
Doug Rendleman
This article discusses the "new" due process. Perhaps new is a misnomer. Due process was not discovered recently. It has been around a long time protecting varying interests from arbitrary action. The discovery called the "new" due process is merely that procedural protections are not so limited as previously thought. This article will examine the interests encompassed by the new due process and the remedial apparatus now being developed to protect those interests.
Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent, Doug Rendleman, Douglas Laycock
Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent, Doug Rendleman, Douglas Laycock
Doug Rendleman
Restitution may be a casualty in a collision with the constitutional law of standing. Article III is traditionally said to require an “injury in fact” for standing to be a plaintiff in federal court. Edwards, who alleges that First American paid a bribe or kickback in violation of the federal Real Estate Settlement Procedures Act, seeks to recover the statutory penalty. Defendant argues that even if it violated the Act, Edwards suffered no “injury in fact.” Our amicus brief in support of Edwards alerts the Supreme Court to the many restitutionary claims either for a wrongdoer’s profits or to set …
American Constitutionalism: Volume Ii: Rights & Liberties, Howard Gillman, Mark Graber, Keith Whittington
American Constitutionalism: Volume Ii: Rights & Liberties, Howard Gillman, Mark Graber, Keith Whittington
Mark Graber
Constitutionalism in the United States is not determined solely by decisions made by the Supreme Court. Moving beyond traditional casebooks, renowned scholars Howard Gillman, Mark A. Graber, and Keith E. Whittington take a refreshingly innovative approach in American Constitutionalism. Organized according to the standard two-semester sequence--in which Volume I covers Structures of Government and Volume II covers Rights and Liberties--this text is unique in that it presents the material in a historical organization within each volume, as opposed to the typical issues-based organization.
Cheer On Separation Of School, Religious Messages, Alan E. Garfield
Cheer On Separation Of School, Religious Messages, Alan E. Garfield
Alan E Garfield
No abstract provided.
Takings And Transitions, Holly Doremus
The Constitutional Right To Education In India: Horizontal Dimensions, Shubhankar Dam
The Constitutional Right To Education In India: Horizontal Dimensions, Shubhankar Dam
Shubhankar Dam
No abstract provided.
Sacred Cows, Holy Wars, Kenneth Lasson
Sacred Cows, Holy Wars, Kenneth Lasson
Kenneth Lasson
ED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …
Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas
Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas
Michael Pappas
Eastern states, though they have enjoyed a history of relatively abundant water, increasingly face the need to conserve water, particularly to protect water-dependent ecosystems. At the same time, growing water demands, climate change, and an emerging water-oriented economy have intensified pressure for interstate water transfers. Thus, even traditionally wet states are seeking to protect or secure their water supplies. However, restrictions on water sales and exports risk running afoul of the Dormant Commerce Clause. This Article offers guidance for states, partciularly eastern states concerned with maintaining and improving water-dependent ecosystems, in seeking to restrict water exports while staying within the …
Police Can Stop You For Having A License Plate Bracket On Your Car, Beau James Brock, Rikki Weger
Police Can Stop You For Having A License Plate Bracket On Your Car, Beau James Brock, Rikki Weger
Beau James Brock
The Fourth Amendment must be protected from police excesses. Now, law enforcement is relying upon the most hyper-technical of violations to stop a vehicle. Both attorneys and judges must guard against the temptation that the ends will justify the means, only to find out later we sold out our freedom to the golden calf of drug interdiction.
Supreme Court Ponders Drug-Detection Dog's 'Sniff Test', Alan E. Garfield
Supreme Court Ponders Drug-Detection Dog's 'Sniff Test', Alan E. Garfield
Alan E Garfield
No abstract provided.
Affirmative Action In Education Weighed Again, Alan E. Garfield
Affirmative Action In Education Weighed Again, Alan E. Garfield
Alan E Garfield
No abstract provided.
Ensayos Sobre Derecho Comparado Y Constitución, Teresa M. G. Da Cunha Lopes
Ensayos Sobre Derecho Comparado Y Constitución, Teresa M. G. Da Cunha Lopes
Teresa M. G. Da Cunha Lopes
No abstract provided.
The Fight For Free Speech, Even If It's Offensive, Alan E. Garfield
The Fight For Free Speech, Even If It's Offensive, Alan E. Garfield
Alan E Garfield
No abstract provided.
What's Wrong With Us Political System?, Alan E. Garfield
What's Wrong With Us Political System?, Alan E. Garfield
Alan E Garfield
No abstract provided.
Ethnicity And The Constitution: Beyond The Black And White Binary Constitution, Juan F. Perea
Ethnicity And The Constitution: Beyond The Black And White Binary Constitution, Juan F. Perea
Juan F. Perea
No abstract provided.
Can He Legally Do That? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival
Can He Legally Do That? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival
Robert Percival
No abstract provided.
Crime Fighters And Border Guards: The Scottish Law Officers In Comparative Perspective, Iain Field
Crime Fighters And Border Guards: The Scottish Law Officers In Comparative Perspective, Iain Field
Iain Field
This article examines two ways in which the law officer role in Scotland has been affected by this ‘new constitutional wave’, and draws comparisons with the role of law officers in Australia and, where appropriate, other UK jurisdictions. The first is by virtue of s 57 of the Scotland Act 1998 (the ‘Scotland Act’), which has exposed the ‘acts of the Lord Advocate’ to judicial scrutiny and the requirements of the HRA and the ECHR. The second arises as a more general consequence of devolution, which imposes upon the Scottish Law Officers new functions with respect to the legislative and …
Robert, Sebelius, And Constitution Day, Kent Greenfield
Robert, Sebelius, And Constitution Day, Kent Greenfield
Kent Greenfield
No abstract provided.
When The Cheering (For Gideon ) Stops: The Defense Bar And Representation At Initial Bail Hearings, Douglas Colbert
When The Cheering (For Gideon ) Stops: The Defense Bar And Representation At Initial Bail Hearings, Douglas Colbert
Douglas L. Colbert
This article suggests that the absence of representation at the beginning of a State criminal prosecution must come to a screeching halt. The criminal defense bar should take a leadership role and dedicate Gideon's anniversary to making certain that an accused's right to the effective assistance of counsel begins at the initial bail hearing. Indeed, guaranteeing vigorous representation should be the defense bar's number one priority.
Habeas Verité, Lee B. Kovarsky
Habeas Verité, Lee B. Kovarsky
Lee Kovarsky
Three recent books from varied academic disciplines demonstrate that habeas is as much about power as it is about liberty - the power of some judges over other magistrates, the power of the judiciary over coordinagte governing institutions, and the power of dominant political coalitions ovefr the opposition.
The U.S. Constitution And The Commerce Clause Power, Dean A. Cantalupo Esq.
The U.S. Constitution And The Commerce Clause Power, Dean A. Cantalupo Esq.
Dean A Cantalupo Esq.
The U.S. Constituion and the Commerce Clause Power
Property Rights, The "Gang Of Four" & The Fifth Vote: Stop The Beach From Renourishment, Inc. V. Florida Department Of Environmental Protection (U.S. Supreme Court 2010), Garrett Power
Garrett Power
In 2010 The U.S. Supreme Court decided the case of Stop the Beach Renourishment v. Florida Department of Environmental Protection (SBR v. Fla. EPA). Justice Antonin Scalia announced the judgment of the Court. All Justices agreed that Florida had not violated the Takings Clause of the Federal Constitution’s Fifth Amendment. But then in a plurality opinion Justice Scalia joined by the Chief Justice Roberts and Justices Thomas and Alito proposed profound changes in the law of “regulatory takings.” As the spokesman for the Court’s property rights absolutists Scalia advanced two novel legal propositions. First he argued that federal courts had …
Health Care Back Where It Belongs, Before The Voters, Alan E. Garfield
Health Care Back Where It Belongs, Before The Voters, Alan E. Garfield
Alan E Garfield
No abstract provided.
El Fin Último De La Constitución, Juan Carlos Riofrío Martínez-Villalba
El Fin Último De La Constitución, Juan Carlos Riofrío Martínez-Villalba
Juan Carlos Riofrío Martínez-Villalba
El artículo analiza cómo todos los fines constitucionales apuntan a desarrollar un fin último de todos ellos: la vida digna, la buena vida o "sumak kawsay" de la Constitución ecuatoriana. Ello refleja también una jerarquía intraconstitucional de fines, principios y derechos, conforme se analiza en este estudio.
Bankruptcy And The Myth Of "Uniform Laws", Daniel A. Austin
Bankruptcy And The Myth Of "Uniform Laws", Daniel A. Austin
Daniel A. Austin
The Bankruptcy Clause of the Constitution empowers Congress to enact “uniform Laws on the subject of bankruptcies.” Common definitions of the word uniform include “always the same” and “not variable.” Yet the rights and remedies of debtors and creditors in a bankruptcy case vary significantly depending upon the state and federal jurisdiction in which the case is filed. Rather than a single uniform law of bankruptcy, the U.S. has multiple bankruptcy laws and regimes based upon geography.
The cause of bankruptcy nonuniformity lies in the structure of our bankruptcy system. Many sections of the Bankruptcy Code incorporate state law, which …
"Dignitizing" Free Speech In Israel: The Impact Of The Constitutional Revolution On Free Speech Protection, Guy E. Carmi
"Dignitizing" Free Speech In Israel: The Impact Of The Constitutional Revolution On Free Speech Protection, Guy E. Carmi
Guy E Carmi
This Article examines the changes in the approach to the analysis of free speech rights in Israel. It demonstrates the growing shift from the American liberty-based influence in the 1980s to a more dignity-based, and principally Canadian- and German-inspired, model following the adoption of the partial Bill of Rights in the 1990s. This is demonstrated both by a statistical analysis of the Israeli Supreme Court free speech rulings in the past thirty years and by a substantive analysis of recent rulings in the areas of prior restraint, pornography, and libel.
The statistical findings demonstrate that while human dignity rarely played …
Freedom Of Speech And The ‘Occupy’ Protests: ‘Narrowly Tailored To Further Significant Government Interests’, Mel Cousins
Freedom Of Speech And The ‘Occupy’ Protests: ‘Narrowly Tailored To Further Significant Government Interests’, Mel Cousins
Mel Cousins
This note examines the spate of recent court decisions concerning efforts by Occupy protestors in various cities of the USA to prevent the removal (or restriction) of their protests. In general, though by no means in all cases, the courts, applying existing freedom of speech principles, have upheld the protestors’ right to protest to some extent but have placed narrow limits around the manner in which this right may be exercised. Following a short introduction (Part 1), Part 2 discuses the approach which has been taken by the courts in recent cases. The approach adopted contrasts sharply with the Supreme …
A ‘Simple Test’: Posthumously Conceived Children And Social Security Entitlements In Astrue V Capato, Mel Cousins
A ‘Simple Test’: Posthumously Conceived Children And Social Security Entitlements In Astrue V Capato, Mel Cousins
Mel Cousins
This case note examines a recent Supreme Court decision concerning the interpretation of the provisions of the Social Security Act concerning entitlement to survivor’s benefits in respect of children. The case involved the correct construction of the term ‘child’ in the Act but arose, more specifically, from a series of cases concerning posthumously conceived children. Courts of Appeal had come to different interpretations as to correct interpretation of the Act and the Supreme Court intervened to resolve the conflict. The Court accepted the Social Security Agency’s (SSA) interpretation of the legislation. However, although legally correct, this does little if anything …
United States V. Klein, Then And Now, Gordon G. Young
United States V. Klein, Then And Now, Gordon G. Young
Gordon G. Young
United States v. Klein, decided during Reconstruction, was the first Supreme Court case to invalidate a statutory restriction on federal courts’ jurisdiction. It is the only one to do so by finding a violation of Article III of the Constitution. Klein has been cited in thirty-three United States Supreme Court opinions, and roughly five hundred times each by lower federal courts and law journal articles. Recent commentators have read Klein both too broadly and narrowly. Its central holding is that Congress may not grant federal courts jurisdiction to decide a set of cases on the merits while depriving them …
Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber
Subtraction By Addition?: The Thirteenth And Fourteenth Amendments, Mark A. Graber
Mark Graber
The celebration of the Thirteenth Amendment in many Essays prepared for this Symposium may be premature. That the Thirteenth Amendment arguably protects a different and, perhaps, wider array of rights than the Fourteenth Amendment may be less important than the less controversial claim that the Fourteenth Amendment was ratified after the Thirteenth Amendment. If the Fourteenth Amendment covers similar ground as the Thirteenth Amendment, but protects a narrower set of rights than the Thirteenth Amendment, then the proper inference may be that the Fourteenth Amendment repealed or modified crucial rights originally protected by the Thirteenth Amendment. The broad interpretation of …