Law Commons^™

The Meaning Of “Life”: The Morning-After-Pill, The Question Of When Life Begins, And Judicial Review, Jason M. Horst

ExpressO

The Article foresees that certain state legislation limiting access to the morning-after-pill will thrust the question of when life begins onto the courts. This is due both to fact that the morning-after-pill has the potential to act at a point when the existence of potential life is in dispute and largely a matter of belief and to the fact that the constitutionality of the legislation may depend on whether courts consider the morning-after-pill abortion or contraception.

The Article argues that courts should address the question of whether to consider the morning-after-pill abortion or contraception by attempting to adopt and apply …

Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder

Indiana Law Journal

Symposium: War, Terrorism and Torture: Limits on Presidential Power in the 21st Century. Convened by the American Constitution Society for Law and Policy and the Indiana University School of Law- Bloomington, prominent legal scholars, human rights advocates and government lawyers gathered in Bloomington on October 7, 2005.

Light From The Trees: The Story Of Minors Oposa And The Russian Forest Cases , Oliver Austin Houck

ExpressO

This article describes two lawsuits in the late twentieth century that changed their countries in ways from which there will be no return. One took place in the Philippines, emerging from the reign of Fernando Marcos, and the other in Russia, following a near century of communist rule. They have two things in common. They declared the rights of their citizens to challenge, and reverse, government decisions. And they were about the environment, more particularly, trees. What we learn is that notions of environmental protection, citizen enforcement and judicial review have traveled the world and that, in differing legal systems, …

When Worlds Collide: Federal Construction Of State Institutional Competence, Marcia L. Mccormick

ExpressO

The federal courts routinely encounter issues of state law. Often a state court will have already analyzed the law at issue, either in a separate case or in the very situation before the federal court. In every one of those cases, the federal courts must decide whether to defer to the state court analysis and, if so, how much. The federal courts will often defer, but many times have not done so, and they rarely explain the reasons for the departures they make. While this lack of transparency gives the federal courts the greatest amount of discretion and power, it …

Popular Sovereignty, Judicial Supremacy, And The American Revolution: Why The Judiciary Cannot Be The Final Arbiter Of Constitutions, William J. Watkins

ExpressO

Key to understanding the connection between popular sovereignty and judicial review is the historical development of the theory of sovereignty in England and America. Section One of this article traces the defeat of divine right theory in England and the emergence of parliamentary sovereignty. Section Two considers the American colonists’ rejection of parliamentary sovereignty during the Revolution and their establishment of popular sovereignty as the cardinal principle of American constitutionalism. Section Three studies English precedent often cited as providing the basis for the American doctrine of judicial review and shows that these English cases were simply exercises in statutory construction …

Brief Of Law Professors David D. Cole Et Al. As Amici Curiae Supporting Petitioner (Geneva-Enforceability), Hamdan V. Rumsfield, No. 05-184 (U.S. Jan. 6, 2006), David Cole, Julie R. O'Sullivan, Carlos Manuel Vázquez

U.S. Supreme Court Briefs

No abstract provided.

Las Paradojas De La Democracia Deliberativa / The Paradoxes Of Deliberative Democracy, Andres Palacios Lleras

Andrés Palacios Lleras

Este artículo argumenta por qué la teoría de la democracia deliberativa es problemática y paradójica, y por lo tanto inadecuada para desarrollar las instituciones democráticas contemporáneas, o para reemplazarlas por otras. Es una teoría problemática porque parte de una postura epistemológica difícilmente sostenible. Es paradójica porque a pesar de ser presentada como incluyente a nivel social, la idea de deliberación que presenta y considera como deseable, es demasiado exigente como para ser realizada por toda clase de personas; y es de hecho, elitista en este aspecto. Pero también porque señala que las instancias que están mejor diseñadas para tomar decisiones …

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

Faculty Scholarship

No abstract provided.

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 …

The End Of Preclearance As We Knew It: How The Supreme Court Transformed Section 5 Of The Voting Rights Act, Peyton Mccrary, Christopher Seaman, Richard Valelly

Michigan Journal of Race and Law

This Article’s analysis reveals that by the 1990s the intent, or purpose, prong of Section 5 had become the dominant basis for objections to discriminatory voting changes. During that decade an astonishing 43 percent of all objections were, according to this assessment, based on discriminatory purpose alone. Thus, a key issue for Congress in determining how to deal with the preclearance requirement of the Act due to expire in 2007-assuming it seeks to restore the protection of minority voting rights that existed before January 2000-is whether to revise the language of Section 5 so as to restore the long-accepted definition …

Delegation To Courts And Legitimacy, Karol Soltan

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

Maryland Law Review

No abstract provided.

Smoke, Not Fire, Neal Devins

Maryland Law Review

No abstract provided.

Beyond Manicheanism: Assessing The New Constitutionalism, Lisa Hilbink

Maryland Law Review

No abstract provided.

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

Maryland Law Review

No abstract provided.

Judicial Power And Mobilizable History, Richard A. Primus

Maryland Law Review

No abstract provided.

Juristocracy In The American States?, Robert F. Williams

Maryland Law Review

No abstract provided.

Judicial Review Of Special Interest Spending: The General Welfare Clause And The Fiduciary Law Of The Founders, Robert G. Natelson

Faculty Law Review Articles

This article explores the fiduciary law of the founding fathers to determine whether it was part of the constitutional design for the Judiciary to review special interest appropriations, and, if so, how the courts might proceed. The author’s findings suggest that, at least from the standpoint of the original understanding of the Constitution, prior judicial deference to the Legislature has been excessive and that there are solid constitutional grounds in arguing for a more searching standard of review.

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.

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

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

Maryland Law Review

No abstract provided.

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

Maryland Law Review

No abstract provided.

Distinguishing Formal From Institutional Democracy, Paul Frymer

Maryland Law Review

No abstract provided.

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

Maryland Law Review

No abstract provided.

Popular Constitutionalism In The Civil War: A Trial Run, Daniel W. Hamilton

Scholarly Works

No abstract provided.

A Symposium On The People Themselves: Popular Constitutionalism And Judicial Review; Introduction, Daniel W. Hamilton

Scholarly Works

No abstract provided.

Section 1983 Cases In The October 2004 Term, Martin A. Schwartz

Touro Law Review

No abstract provided.

Beyond Coercion: Justice Kennedy's Aversion To Animus, Steven Goldberg

Georgetown Law Faculty Publications and Other Works

In evaluating the constitutionality of religious displays, Justice Kennedy adheres to the coercion test. A crèche on the courthouse steps is acceptable because it does not coerce anyone to support or participate in a religious exercise. He rejects the endorsement test, which asks whether the display makes reasonable nonadherents feel like outsiders, finding it to be “flawed in its fundamentals and unworkable in practice.” Yet in the free exercise context, Kennedy has focused on whether a community shows hostility to minority faiths, and his opinions in Romer and Lawrence stress that legislatures acted unconstitutionally in showing animus to gays. Suppose …

Evolving Objective Standards: A Developmental Approach To Constitutional Review Of Morals Legislation, Christian J. Grostic

Michigan Law Review

This Note argues that the Supreme Court's recent jurisprudence regarding morals legislation mirrors the findings of empirical research on moral and psychological development. Specifically, the Supreme Court upholds morals legislation only if it is justified by stage five reasoning. Part I examines significant Supreme Court cases related to morals legislation over the last 50 years and argues that the Supreme Court has consistently upheld morals legislation that is justified by stage five reasoning, while consistently striking down as unconstitutional morals legislation that is not. Part II argues that a developmental approach to constitutional review of morals legislation, while consistent with …

Personal Reflections On The Chief, Richard W. Garnett

Journal Articles

My favorite William Rehnquist quote is this, from Kansas v. Colorado: “The Arkansas River rises on the east side of the Continental Divide, between Climax and Leadville, Colorado. Thence it flows south and east through Colorado, Kansas, Oklahoma, and Arkansas, emptying into the Mississippi River, which in turn flows into the Gulf of Mexico. As if to prove that the ridge that separates them is indeed the Continental Divide, a short distance away from the source of the Arkansas, the Colorado River rises and thence flows southwest through Colorado, Utah, and Arizona, and finally empties into the Gulf of Baja, …