Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Law (42)
- Constitutional Law (33)
- Courts (8)
- Jurisprudence (7)
- Torts (6)
-
- First Amendment (4)
- Law and Society (4)
- Legal Remedies (4)
- Administrative Law (3)
- Civil Rights and Discrimination (3)
- International Law (3)
- Jurisdiction (3)
- Legal History (3)
- State and Local Government Law (3)
- Tax Law (3)
- Taxation-State and Local (3)
- Construction Law (2)
- Criminal Law (2)
- Criminal Procedure (2)
- Fourteenth Amendment (2)
- Law and Economics (2)
- Business Organizations Law (1)
- Civil Procedure (1)
- Common Law (1)
- Comparative and Foreign Law (1)
- Conflict of Laws (1)
- Elder Law (1)
- European Law (1)
- Health Law and Policy (1)
- Intellectual Property Law (1)
- Publication Year
- Publication
- Publication Type
Articles 1 - 30 of 58
Full-Text Articles in Entire DC Network
The Lost History Of Delegation At The Founding, Christine Chabot
The Lost History Of Delegation At The Founding, Christine Chabot
Georgia Law Review
The new Supreme Court is poised to bring the administrative state to a grinding halt. Five Justices have endorsed Justice Gorsuch’s dissent in Gundy v. United States—an opinion that threatens to invalidate countless regulatory statutes in which Congress has delegated significant policymaking authority to the Executive Branch. Justice Gorsuch claimed that the “text and history” of the Constitution required the Court to replace a longstanding constitutional doctrine that permits broad delegations with a more restrictive one. But the supposedly originalist arguments advanced by Justice Gorsuch and like-minded scholars run counter to the understandings of delegation that prevailed in the Founding …
Twenty-Week Abortion Statutes: Four Arguments, Randy Beck
Twenty-Week Abortion Statutes: Four Arguments, Randy Beck
Scholarly Works
The Supreme Court has never justified the conclusion that the Constitution bars any substantial regulation designed to protect fetal life prior to viability. No majority opinion has ever offered a rationale for the viability rule, and the arguments recited in non-majority opinions are either conclusory or fail to distinguish viability from earlier lines that might be drawn. The most coherent academic attempt to justify the rule — Professor Laurence Tribe’s argument that a woman can “transfer nurture of [a viable] fetus to other hands” — rests on the erroneous assumption that a pregnant woman can arrange for premature delivery of …
What Did The Supreme Court Hold In Heffernan V. City Of Paterson?, Michael Wells
What Did The Supreme Court Hold In Heffernan V. City Of Paterson?, Michael Wells
Scholarly Works
As a favor to his mother, Jeffrey Heffernan picked up a political yard sign. His supervisors demoted him, in the mistaken belief that he had engaged in protected speech. In Heffernan v. City of Patterson, 136 S.Ct. 1412 (2016), the Supreme Court held that a public employee can sue a local government under 42 U.S.C. § 1983 when a supervisor acts for constitutionally impermissible motives, even though he has not in fact exercised First Amendment rights. But the grounds for that holding are unclear. The Court may have ruled that the city, through its police chief, violated Heffernan’s First Amendment …
The Media Exemption Puzzle Of Campaign Finance Laws, Sonja R. West
The Media Exemption Puzzle Of Campaign Finance Laws, Sonja R. West
Scholarly Works
In the 2010 case of Citizens United v. Federal Election Commission, the United States Supreme Court solidified the media exemption dilemma in campaign finance law. When attempting to address concerns about corporate campaign expenditures (i.e., corporate political speech), legislatures are now stuck between a rock and a hard place. Regulate media corporations, and they violate press freedoms. Exempt media corporations from the regulations, however, and they are accused of speaker discrimination.
Thus the question of how to treat the press in campaign finance law can no longer be ignored. Can legislatures, without running afoul of the First Amendment, ever regulate …
The Pros And Cons Of Politically Reversible 'Semisubstantive' Constitutional Rules, Dan T. Coenen
The Pros And Cons Of Politically Reversible 'Semisubstantive' Constitutional Rules, Dan T. Coenen
Scholarly Works
Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment. …
The Partially Prudential Doctrine Of Mootness, Matthew I. Hall
The Partially Prudential Doctrine Of Mootness, Matthew I. Hall
Scholarly Works
The conventional understanding of mootness doctrine is that it operates as a mandatory bar to federal court jurisdiction, derived from the "cases or controversies" clause of the United States Constitution, Article III. In two crucial respects, however, this Constitutional model - which was first adopted by the Supreme Court less than 45 years ago - fails to account for the manner in which courts actually address contentions of mootness. First, the commonly-applied exceptions to the mootness bar are not derived from the "cases or controversies" clause and cannot be reconciled with the Constitutional account of mootness. Second, courts regularly consider …
The Supreme Courts Municipal Bond Decision And The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen
The Supreme Courts Municipal Bond Decision And The Market-Participant Exception To The Dormant Commerce Clause, Dan T. Coenen
Scholarly Works
Does it violate the dormant Commerce Clause for a state to exempt interest earned on its own bonds, but no others, from income taxation? In a recent decision, the Supreme Court answered this question in the negative. Six members of the Court found the case controlled by the state-self-promotion exception to the dormancy doctrine's antidiscrimination rule. Three of those Justices, however, went further by also invoking the longstanding market-participant exception to sustain the discriminatory state tax break. This Essay challenges that alternative line of analysis. According to the author, the plurality's effort to apply the market-participant principle: (1) invites a …
"Sociological Legitimacy" In Supreme Court Opinions, Michael Wells
"Sociological Legitimacy" In Supreme Court Opinions, Michael Wells
Scholarly Works
Analysis of a Supreme Court opinion ordinarily begins from the premise that the opinion is a transparent window into the Court's thinking, such that the reasons offered by the Court are, or ought to be, the reasons that account for the holding. Scholars debate the strength of the Court's reasoning, question or defend the Court's candor, and propose alternative ways of justifying the ruling. This Article takes issue with the transparency premise, on both descriptive and normative grounds. Especially in controversial cases, the Court is at least as much concerned with presenting its holding in a way that will win …
Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy L. Meyer
Federalism And Accountability: State Attorneys General, Regulatory Litigation, And The New Federalism, Timothy L. Meyer
Scholarly Works
This Comment will examine how one particular state institution, state attorneys general (SAGs), has operated within a unique set of institutional and political constraints to create state-based regulation with nationwide impact in policy areas including consumer protection, antitrust, environmental regulation, and securities regulation. This state-based regulation casts doubt on one of the principle rationales advanced in the Supreme Court's anticommandeering line of cases for limiting federal power; namely, that such a move enhances electoral accountability, a concept central to our democracy. If in the absence of federal regulation a series of narrowly accountable state-based actors can create nationwide regulation in …
The Essential Holding Of Casey: Rethinking Viability, J. Randy Beck
The Essential Holding Of Casey: Rethinking Viability, J. Randy Beck
Scholarly Works
The Planned Parenthood of Southeastern Pennsylvania v. Casey plurality acknowledged an obligation to "justify the lines we draw." The corollary would seem to be an obligation to eschew lines that defy principled justification. In the decades since Roe v. Wade, the Court has offered no adequate rationale for the viability standard, notwithstanding persistent judicial and academic critiques. Exacerbating this country's divisions over abortion and placing us out of step with the world community, the viability rule seems a strong candidate for abandonment as the Court continues to rethink its abortion jurisprudence in the aftermath of Casey.
U.S. Supreme Court Justice Thomas Makes Third Visit To Georgia Law Since 2003, Office Of Communications And Public Relations
U.S. Supreme Court Justice Thomas Makes Third Visit To Georgia Law Since 2003, Office Of Communications And Public Relations
Other Lectures and Presentations
In October 2006, U.S. Supreme Court Justice Clarence Thomas spent three days at Georgia Law, where he lectured in constitutional law and education law classes, met with various student groups, held a question and answer session with the student body and mingled with alumni at a tailgate prior to the Mississippi State football game, which he attended as a guest of UGA President Michael F. Adams. Justice Clarence Thomas spoke at a lunch with members of the Davenport-Benham Black Law Students Association.
The Story Of Me: The Underprotection Of Autobiographical Speech, Sonja R. West
The Story Of Me: The Underprotection Of Autobiographical Speech, Sonja R. West
Scholarly Works
This Article begins the debate over the constitutional underprotection of autobiographical speech. While receiving significant historical, scientific, religious, and philosophical respect for centuries, the timehonored practice of talking about yourself has been ignored by legal scholars. A consequence of this oversight is that current free speech principles protect the autobiographies of the powerful but leave the stories of “ordinary” people vulnerable to challenge. Shifting attitudes about privacy combined with advanced technologies, meanwhile, have led to more people than ever before having both the desire and the means to tell their stories to a widespread audience. This Article argues that truthful …
The Roberts Court: Year 1, Lori A. Ringhand
The Roberts Court: Year 1, Lori A. Ringhand
Scholarly Works
This paper is an empirical analysis of the Supreme Court's recently-ended 2005 term, including an examination of the issues raised by, and the ideological direction of, the decisions issued by the Court. In addition to reviewing the work of the Court as a whole, the paper also separately examines the jurisprudence of new Justices Roberts and Alito. In doing so, it raises the possibility that these justices may have more in common with each other than with the Court's more established conservative members. The paper also demonstrates that the Court, pursuant to one of Justice Roberts' frequently stated goals, was …
Federal Constitutional Restraints On Tax Competition Among The American States, Walter Hellerstein
Federal Constitutional Restraints On Tax Competition Among The American States, Walter Hellerstein
Scholarly Works
This article examines the judicially developed rules limiting interstate tax competition in the United States and the constitutional framework out of which they arise.
Taking Your Case To The Court Of Public Opinion – Strategic, Legal And Ethical Implications Conference, Geoffrey C. Hazard Jr., C. Ronald Ellington, Lonnie T. Brown, David L. Balser, Sally Yates, Peter Canfield, Bruce Harvey, Paul Butler, Joseph Gladden, Larry D. Thompson, Robert Rothman, Linda Disantis, Kenneth Canfield, Adam Liptak
Taking Your Case To The Court Of Public Opinion – Strategic, Legal And Ethical Implications Conference, Geoffrey C. Hazard Jr., C. Ronald Ellington, Lonnie T. Brown, David L. Balser, Sally Yates, Peter Canfield, Bruce Harvey, Paul Butler, Joseph Gladden, Larry D. Thompson, Robert Rothman, Linda Disantis, Kenneth Canfield, Adam Liptak
Conferences and Symposia to 2010
During the daylong conference, judges, lawyers and members of the news media debated the professional and moral consequences of discussing legal cases with the media.
Economic Development And The Dormant Commerce Clause: The Lessons Of Cuno V. Daimlerchrysler And Its Effect On State Taxation Affecting Interstate Commerce, Walter Hellerstein
Economic Development And The Dormant Commerce Clause: The Lessons Of Cuno V. Daimlerchrysler And Its Effect On State Taxation Affecting Interstate Commerce, Walter Hellerstein
Presentations and Speeches
Testimony before the Subcommittees on the Constitution and on Commercial and Administrative Law "to examine the status of State economic growth and development through tax incentive plans in light of the Sixth Circuit's recent decision in Cuno v. DaimlerChrysler Inc."
Commercial Speech In The United States And Europe, Oxana Valeryevna Gassy-Wright
Commercial Speech In The United States And Europe, Oxana Valeryevna Gassy-Wright
LLM Theses and Essays
his research focuses on the protection of the commercial speech in the United States and Europe. The protection of commercial speech is regarded as one of the most controversial issues in both European and American free speech jurisprudence. The purpose of this work is to compare different approaches to the protection of the commercial speech in the American and European countries through an analysis of the decisions of the United States Supreme Court, the European Court of Human Rights and the European Court of Justice of the European Union. This analysis demonstrates that the U.S. Supreme Court gives commercial speech …
Constitutional Norms In A State Of Permanent Emergency, Sanford V. Levinson
Constitutional Norms In A State Of Permanent Emergency, Sanford V. Levinson
Sibley Lecture Series
The U.S. Constitution, drafted by our nation’s founding fathers well over 200 years ago, remains as the primary document guiding our nation’s system of democracy. However, in times of national emergencies, absolute adherence is sometimes set aside to meet immediate needs. The events of September 11 provide the most recent example of this conflict between strict constitutional fidelity and presidential emergency powers. Introduction by Professor Kevin Heller.
The Patriot Act Of 2002: Myths, Misperceptions And Malapropisms Q&A, Joe D. Whitley
The Patriot Act Of 2002: Myths, Misperceptions And Malapropisms Q&A, Joe D. Whitley
Other Lectures and Presentations
Alumnus Joe D. Whitley (J.D.'75), general counsel for the Department of Homeland Security, provides an insider's look at the controversial act. This is the question and answer session that followed the Joseph Henry Lumpkin Society Educational Seminar Series address by Department of Homeland Security General Counsel Joe D. Whitley (J.D.’75) on Dec. 3, 2004.
The Patriot Act Of 2002: Myths, Misperceptions And Malapropisms, Joe D. Whitley
The Patriot Act Of 2002: Myths, Misperceptions And Malapropisms, Joe D. Whitley
Other Lectures and Presentations
Alumnus Joe D. Whitley (J.D.'75), general counsel for the Department of Homeland Security, provides an insider's look at the controversial act.
The Institutional Framework Of The European Union For The Conduct Of Foreign Affairs, Frederic Eggermont
The Institutional Framework Of The European Union For The Conduct Of Foreign Affairs, Frederic Eggermont
LLM Theses and Essays
This thesis will analyze the evolution in the institutional framework for the conduct of foreign policy in the European Union until the Draft Treaty establishing a Constitution for Europe. This evolution will be compared with the institutional development in the United States. The intention of this thesis is to focus on the European Union and to point to similar evolutions in the United States.
International Norms In Constitutional Law, Michael Wells
International Norms In Constitutional Law, Michael Wells
Scholarly Works
Whether the Supreme Court should look to international law in deciding constitutional issue depends largely on what is meant by "looking to" international law. Some international norms are legally binding on American courts, either because we have agreed to follow them by adopting treaties or because they form part of the federal common law. I certainly agree that the Supreme Court, like the rest of us, ought to obey these aspects of international law. But the role of international norms in American courts has recently attracted attention for a different reason. In Lawrence v. Texas the Supreme Court, overruling Bowers …
The Use Of International Sources In Constitutional Opinion, Daniel M. Bodansky
The Use Of International Sources In Constitutional Opinion, Daniel M. Bodansky
Scholarly Works
My argument for the use of international materials to interpret the Constitutional will proceed in four parts. First, I will argue that international law has a venerable history in constitutional interpretation. Second, I will argue that American courts and foreign courts are engaged in a common legal enterprise and could learn from one another. Third, I will argue that the text of certain constitutional provisions invites the use of international materials. Finally, I will argue that taking international opinion into account has strong pragmatic justifications.
Legal Structures Of European Security And Defense Policy And War Powers Under The U.S. Constitution, Heiko Buesing
Legal Structures Of European Security And Defense Policy And War Powers Under The U.S. Constitution, Heiko Buesing
LLM Theses and Essays
The EU is developing new structures for its Security and Defense Policy and tries to achieve a more integrated security and defense policy. Currently, the principle of unanimity controls the conduct of the EU’s Common Security and Defense Policy. This is one main reason why the EU is in some cases unable to speak with one voice. In the U.S., the President and Congress are the main players in the area of war powers. The President is the most important actor in the area of foreign affairs. However, Congress has the power of the purse and the power to declare …
Regulation Of Hate Speech, Haiping Deng
Regulation Of Hate Speech, Haiping Deng
LLM Theses and Essays
Facing an increase of hate speech incidents on campus and in society at large, egalitarians have made great efforts to advocate (when there is no regulation) or to defend (when there is regulation) hate speech regulation. Meanwhile, civil libertarians have counter argued forcefully. This paper is designed to do an internal critique of various egalitarian arguments. Part I is introduction. Part II and Part III give a concise description of many egalitarian arguments. Part IV tries to do an internal critique of those arguments. Part V is the conclusion: though egalitarians have made a great effort to advocate or defend …
Technological Advances Leading To The Diminishing Of Privacy Rights, Anabelle Maria D'Souza
Technological Advances Leading To The Diminishing Of Privacy Rights, Anabelle Maria D'Souza
LLM Theses and Essays
The Purpose of this thesis is to bring about the awareness of the importance of privacy in our lives. Privacy is an essential element of a free society without which individuals would lose the ability to interact with one another in private. With the advancement in police surveillance technology there is a clash between an individuals right to keep a secret and the State’s power to penetrate that secret. State of the art technologies such as the financial crimes enforcement network, wearable computing and surveillance cameras are some of the latest devices invading privacy. These technological advances have become so …
The Heart Of Federalism: Pretext Review Of Means-End Relationships, J. Randy Beck
The Heart Of Federalism: Pretext Review Of Means-End Relationships, J. Randy Beck
Scholarly Works
Section I of this article seeks to correct a common scholarly misconception regarding the sort of pretext review envisioned by McCulloch v. Maryland. All students of McCulloch understand the decision to call for judicial review of the means-end relationship underlying a federal statute. But McCulloch also indicated that the Court would strike down legislation "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government." Various constitutional scholars construe this pretext passage to contemplate a second inquiry--separate from the Court's scrutiny of means-end relationships--into whether the legislative motive behind a …
An End To The Political Question Doctrine In Korea?: A Comparative Analysis, Myeong-Sik Kim
An End To The Political Question Doctrine In Korea?: A Comparative Analysis, Myeong-Sik Kim
LLM Theses and Essays
The political question doctrine is one of the controversial issues in Korea and U.S. The most important point is, however, that the current trend on political questions in Korea is in line with that of American judicial activism. In other words, both countries are trying to narrow the range of the doctrine. Nonetheless, the two are proceeding in sharply opposite directions. Fully matured, even excessively extended American judicial activism should return to the classical separation of powers doctrine. In contrast, a developing Korean judicial activism should be accelerated by the support and encouragement of the people, in support of the …
Means/Ends Analysis In Copyright Law: Eldred V. Ashcroft In One Act, Dan T. Coenen, Paul J. Heald
Means/Ends Analysis In Copyright Law: Eldred V. Ashcroft In One Act, Dan T. Coenen, Paul J. Heald
Scholarly Works
The authors examine Eldred v. Ashcroft in a play setting where one of the characters plays a constitutional law professor and the other character plays an intellectual property professor.
Freedom Of Speech, Cinema And Censorship: A Comparative Analysis Of Issues Of Freedom Of Speech Violations As A Result Of The Rating Regulation Authorities In The Motion Picture Industry In France And The United States, Stephanie Grenier
LLM Theses and Essays
Motion pictures may be the single greatest cultural influence on the collective psyche, along with television. The silver screen has become a reflection of France (where it was first invented) and the United States (where cinema is a major art form) as nations. With, arguably, [sic] is the national character of these countries at stake; one would expect the government to assert a substantial interest in monitoring this powerful cultural instrument. They do so in France, the industry in charge of it in the United States. Therefore, the success of the motion picture industry has come at the expense of …