Law Commons^™

Mélanges Jean Beetz, Teresa Scassa

Dalhousie Law Journal

Melanges Jean Beetz is a collection of essays honouring the late Supreme Court of Canadajudge who died in 1991 after a lengthy battle with illness. The timing of the publication of the book, some five years after his death, places the work within what is perhaps a fitting social and political context. The constitutional crises that have plagued this country continue in what seems to be a period of heightened alienation between Quebec and the rest of Canada. An exploration of the contribution of Justice Beetz to the jurisprudence of the Supreme Court of Canada may be of assistance in …

Choice Of Law And The Forgiving Constitution, Gene R. Shreve

Indiana Law Journal

No abstract provided.

Measured Constitutional Steps, Lisa A. Kloppenberg

Indiana Law Journal

No abstract provided.

Consistently Inconsistent: The Supreme Court And The Confusion Surrounding Proportionality In Non-Capital Sentencing, Steven P. Grossman

All Faculty Scholarship

(Adapted by permission from 84 Ky. L. J. 107 (1995)) This article examines the Supreme Court's treatment of the Eighth Amendment with respect to claims of excessiveness regarding prison sentences. Specifically, it addresses the issue of whether and to what degree the Eighth Amendment requires that a punishment not be disproportional to the crime punished. In analyzing all of the modern holdings of the Court in this area, one finds significant fault with each. The result of this series of flawed opinions from the Supreme Court is that the state of the law with respect to proportionality in sentencing is …

The Fourth Revolution, Robert C. Power

Robert C Power

No abstract provided.

Mistretta Versus Marbury: The Foundations Of Judicial Review, Maxwell L. Stearns

Faculty Scholarship

No abstract provided.

Constitutional Law: The Progeny Of United States V. Lopez And The Future Of Judicial Review Of Federal Power Under The Commerce Clause, Charles Barnes Goodwin

Oklahoma Law Review

No abstract provided.

A Congressional Call To Arms: The Time Has Come For Congress To Enforce The Fifth Amendment's Takings Clause, Mark W. Smith

Oklahoma Law Review

No abstract provided.

California’S Proposition 187--Does It Mean What It Says? Does It Say What It Means? A Textual And Constitutional Analysis, Lolita K. Buckner Inniss

Publications

No abstract provided.

Double Jeopardy—Civil Forfeitures And Criminal Punishment: Who Determines What Punishments Fit The Crime, Barbara A. Mack

Seattle University Law Review

This Article will attempt to distill from this confusion a meaningful double jeopardy policy, applicable to parallel civil and criminal proceedings, that takes into account the history of double jeopardy, recent changes in statutory law, and the contemporary chaotic state of parallel civil and criminal proceedings. Under current law, double jeopardy protects against three abuses: (1) a second prosecution for the same offense after acquittal, (2) a second prosecution for the same offense after conviction, and (3) multiple punishments for the same offense. This Article will show that the multiple punishments prong has little basis in law, other than reliance …

The Double Jeopardy Implications Of In Rem Forfeiture Of Crime-Related Property: The Gradual Realization Of A Constitutional Violation, Andrew L. Subin

Seattle University Law Review

Over the past decade, the government has escalated its "war on drugs." Although the "war" has not decreased drug use or limited the availability of drugs on the street, the government continues to sacrifice the constitutional rights of its citizens in an effort to escalate the hostility. Since the "zero tolerance" policy of the Reagan Administration, the government has relied heavily on the forfeiture of property related to drug crimes as a tool to deter and punish the illegal distribution of drugs. The federal forfeiture statute, 21 U.S.C. § 881, allows the government to seize any property used to facilitate …

The Organic Constitution: Aboriginal Peoples And The Evolution Of Canada, Brian Slattery

Osgoode Hall Law Journal

Despite recent advances in the law of aboriginal rights, most Canadian lawyers still tacitly view the Constitution as the outgrowth of European legal traditions, transplanted into North America. This article identifies the main features of this model of the Constitution and proposes a more appropriate model to replace it, one that recognizes the Constitution's deep roots in Canadian history and traditions, and acknowledges the distinctive contributions of Aboriginal peoples and their long-standing relations with the Crown.

Note, Civil Forfeiture And Innocent Owners, Deborah Challener

Journal Articles

Although forfeiture is an ancient practice, its constitutional validity has only recently been seriously questioned. Historically, the Supreme Court has relied on a legal fiction-that the property itself is guilty-to confiscate property without regard to the Constitution. Cloaking itself in the "guilty property fiction," the Court has virtually ignored the property owner's culpability. In Bennis, the Court decided whether an owner's interest in property is subject to forfeiture when the owner entrusts the property to a party who uses it to commit a crime, even if the owner has no knowledge of the illegal use.

The War Powers In French Constitutional Law, Elisabeth Zoller

Articles by Maurer Faculty

No abstract provided.

The Term Limits Dissent: What Nerve, Robert F. Nagel

Publications

No abstract provided.

The Future Of Federalism, Robert F. Nagel

Publications

No abstract provided.

Punishment And Procedure: A Different View Of The American Criminal Justice System, William T. Pizzi

Publications

No abstract provided.

Direct Democracy And Hastily Enacted Statutes, John C. Nagle

Journal Articles

Phil Frickey qualifies as the leading explorer of the borderline between statutory interpretation and constitutional law. Frickey explores ways to mediate the borderline between statutory interpretation and constitutional adjudication in the context of direct democracy. His is an enormously helpful attempt to reconcile the constitutional issues discussed by Julian Eule and the statutory interpretation issues discussed by Jane Schacter. I agree with many of Frickey's suggestions. Indeed, I will suggest some additional devices that can perform the same role. But I wonder whether Frickey has proved more than he set out to accomplish. The problems of direct democracy are special, …

Judicial Restraint And Constitutional Federalism: The Supreme Court's Lopez And Seminole Tribe Decisions, Herbert J. Hovenkamp

All Faculty Scholarship

The Senate hearings considering Elena Kagan’s Supreme Court nomination called new attention to the Constitution's Commerce Clause. That concern might seem odd, given the typical lack of strong grassroots concern over the commerce power. But the 2010 election year is different. One characteristic of the largely conservative "Tea Party" movement is a wish to roll back Constitutional time to the regime envisioned by its founders. As the New York Times reported in early July, 2010, members of the movement believe that the “commerce clause in particular has been pushed beyond recognition.” Members of the movement imagine that Congressional power over …

A Text Is Just A Text, Paul F. Campos

Publications

No abstract provided.

Progress And Constitutionalism, Robert F. Nagel

Publications

No abstract provided.

Hiding The Ball, Pierre Schlag

Publications

No abstract provided.

Is There A General Trend In Constitutional Democracies Toward Parliamentary Control Over War-And-Peace Decisions?, Lori Fisler Damrosch

Faculty Scholarship

My hypothesis is that there is a general trend toward subordinating war powers to constitutional control, and that this trend includes a subtrend toward greater parliamentary control over the decision to introduce troops into situations of actual or potential hostilities. UN peace operations present one variant of a recurring problem for constitutional democracies, as do collective security and collective enforcement operations under the auspices of the United Nations or a regional body such as the North Atlantic Treaty Organization (NATO).

Preface: Double Jeopardy In Washington And Beyond, Justice Philip A. Talmadge

Seattle University Law Review

The prohibition against double jeopardy is of ancient lineage in western civilization. In a ringing and scholarly dissent that rewards reflection, Justice Hugo Black said:

Fear and abhorrence of governmental power to try people twice for the same conduct is one of the oldest ideas found in western civilization. Its roots run deep into Greek and Roman times. Even in the Dark Ages, when so many other principles of justice were lost, the idea that one trial and one punishment were enough remained alive through the canon law and the teachings of the early Christian writers. By the thirteenth century …

Confusing Punishment With Custodial Care: The Troublesome Legacy Of Estelle V. Gamble, Philip Genty

Faculty Scholarship

For the better part of two centuries, imprisonment has been the primary means of punishment for non-capital offenses in the United States. A person, once convicted, is turned over to an institution that will regulate every minute of her or his life. Yet, despite the central role that prisons have long played in our society, the use of the Constitution to regulate conditions of confinement in prisons is a relatively recent phenomenon. Certainly, part of this has to do with the fact that constitutional litigation did not begin in earnest until the "rediscovery" of the Civil War era civil rights …

Secret Proceedings In Canada, Ian Leigh

Osgoode Hall Law Journal

National security and constitutionalism are often thought to be fundamentally incompatible. Recent reforms in Canada involve creative attempts to recognize constitutional rights to fair procedure within processes in which individuals' rights are in conflict with state security interests, such as security clearance, deportation, or access to information. The procedures examined in this article include in camera and ex parte review by Federal Court judges and the use of the Security Intelligence Review Committee. The analysis draws on interviews with participants and compares these procedures with other situations in which restrictions upon open justice have faced Charter challenge, especially under sections …

S. 1629b The Tenth Amendment Enforcement Act Of 1996: Hearings On S. 1629 Before The Committee On Governmental Affairs 104th Cong. 2d Sess. 232-241 & 247-257, Mary Brigid Mcmanamon

Mary Brigid McManamon

No abstract provided.

New Federalism And Constitutional Criminal Procedure: Are We Repeating The Mistakes Of The Past?, James W. Diehm

James W. Diehm

H. Jefferson Powell On The American Constitutional Tradition: A Conversation, Randy Lee

Randy Lee

No abstract provided.

Principle, History, And Power: The Limits Of The First Amendment Religion Clauses, Stephen M. Feldman

Stephen M. Feldman

This article addresses whether the religion clauses of the U.S. Constitution prohibit the injection of religious values into political debate. I argue that Christianity hegemonically controls American society and culturally oppresses outgroup religions, particularly the prototypical minority religion of Judaism. I critically analyze how the constitutional principle of separation of church and state contributes to the current orientation of power within American society. I approach the problem of Christian social power from three perspectives: symbolic power, structural power, and the relationship between symbolic and structural power.