Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- Georgetown University Law Center (24)
- BLR (14)
- Columbia Law School (14)
- University of Pennsylvania Carey Law School (12)
- William & Mary Law School (11)
-
- Boston University School of Law (9)
- Duke Law (7)
- Case Western Reserve University School of Law (6)
- Pace University (6)
- Duquesne University (5)
- Roger Williams University (5)
- University of Colorado Law School (5)
- University of Maryland Francis King Carey School of Law (5)
- University of San Diego (5)
- Vanderbilt University Law School (5)
- Chicago-Kent College of Law (4)
- Maurer School of Law: Indiana University (4)
- University of Georgia School of Law (4)
- University of Michigan Law School (4)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (4)
- University of Pittsburgh School of Law (4)
- Valparaiso University (4)
- Brooklyn Law School (3)
- Cornell University Law School (3)
- Florida A&M University College of Law (3)
- Florida State University College of Law (3)
- New York Law School (3)
- St. John's University School of Law (3)
- The Peter A. Allard School of Law (3)
- University at Buffalo School of Law (3)
- Keyword
-
- Constitutional Law (30)
- Constitutional law (18)
- Judicial review (14)
- Supreme Court (14)
- Federalism (13)
-
- Constitution (11)
- United States Supreme Court (11)
- First Amendment (10)
- Law (10)
- Public Law and Legal Theory (8)
- Separation of powers (8)
- United States (8)
- Civil rights (7)
- Criminal Law and Procedure (7)
- Democracy (7)
- History (7)
- Politics (7)
- Affirmative action (6)
- Discrimination (6)
- First amendment (6)
- Religion (6)
- Civil Rights and Discrimination (5)
- Government (5)
- Jurisprudence (5)
- Philosophy (5)
- Takings (5)
- Theology (5)
- Administrative law (4)
- Courts (4)
- Death penalty (4)
- Publication
-
- Faculty Scholarship (42)
- Faculty Publications (22)
- Georgetown Law Faculty Publications and Other Works (21)
- All Faculty Scholarship (20)
- Articles (12)
-
- Journal Articles (8)
- Scholarly Works (8)
- George Mason University School of Law Working Papers Series (7)
- Elisabeth Haub School of Law Faculty Publications (6)
- Law Faculty Publications (6)
- Ledewitz Papers (5)
- Publications (5)
- University of San Diego Public Law and Legal Theory Research Paper Series (5)
- Vanderbilt Law School Faculty Publications (5)
- Articles by Maurer Faculty (4)
- Law Faculty Scholarship (4)
- All Faculty Publications (3)
- Articles & Chapters (3)
- Cornell Law Faculty Publications (3)
- Journal Publications (3)
- Scholarly Publications (3)
- Testimony Before Congress (3)
- The Ohio State University Moritz College of Law Working Paper Series (3)
- Articles & Book Chapters (2)
- Faculty Articles (2)
- Faculty Journal Articles and Book Chapters (2)
- Faculty Works (2)
- Law Faculty Articles and Essays (2)
- Nevada Supreme Court Summaries (2)
- Popular Media (2)
Articles 31 - 60 of 242
Full-Text Articles in Law
Foreign Law And The U.S. Constitution, Kenneth Anderson
Foreign Law And The U.S. Constitution, Kenneth Anderson
Popular Media
The use of foreign law and unratified international treaty law by U.S. courts in U.S. constitutional adjudication has emerged as a major debate among justices of the U.S. Supreme Court, with Justice Anthony Kennedy writing for a majority approving the practice in the March 2005 decision of Roper v. Simmons, and Justices Antonin Scalia and Stephen Breyer undertaking an unusual public discussion of the practice in January 2005 at American University law school. This article examines the arguments made by Justices Kennedy, Scalia, and Breyer for and against the practice, setting them in the broader context of constitutional theory. It …
Civil And Criminal Recidivists: Extraterritoriality In Tort And Crime, Wayne A. Logan
Civil And Criminal Recidivists: Extraterritoriality In Tort And Crime, Wayne A. Logan
Scholarly Publications
Historically, punitive damage awards and criminal sentences have shared the common justifications of punishment and deterrence, with the culpability of tortfeasors and criminals alike being enhanced as a result of repeat misconduct. The Supreme Court’s 2003 decision in State Farm v. Campbell suggests, however, that the parallels now in effect stop at the state line. The extraterritorial misconduct of tortfeasors is permitted to play a very limited role, if any, in the assessment of punitive damage awards. Meanwhile, such misconduct continues to be used by courts to significantly enhance the sentences of criminal defendants, an asymmetry accentuated by California v. …
The Constitutional Limits To Court-Stripping, Michael J. Gerhardt
The Constitutional Limits To Court-Stripping, Michael J. Gerhardt
Faculty Publications
This Article is part of a colloquy between Professor Michael J. Gerhardt and Professor Martin Redish about the constitutionality of court-stripping measures. Court-stripping measures are laws restricting federal court jurisdiction over particular subject matters. In particular, the authors discuss the constitutionality of the Marriage Protection Act of 2004. Professor Gerhardt argues that the Act is unconstitutional and threatens to destroy the principles of separation of powers, federalism and due process. It prevents Supreme Court review of Congressional action and hinders the uniformity and finality of constitutional law. Furthermore, the Act violates the equal protection component of the Fifth Amendment Due …
Supreme Court Watch, Reginald Oh
Supreme Court Watch, Reginald Oh
Law Faculty Articles and Essays
Discusses the March 1, 2005 U.S. Supreme Court decision regarding the constitutionality of the death penalty in Roper v. Simmons, 125 S. Ct. 1183 (2005). The Court held that the death penalty cannot be applied to individuals under the age of eighteen at the time the crime was committed without violating the Eighth Amendment's prohibition against cruel and unusual punishment.
A Government Of Limited Powers, Carl E. Schneider
A Government Of Limited Powers, Carl E. Schneider
Articles
Roscoe C. Filburn owned a small farm in Ohio where he raised poultry, dairy cows, and a modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. The Agricultural Adjustment Act of 1938 limited the wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits. Mr. Filburn sued. He said Claude Wickard, the Secretary of Agriculture, could not enforce the AAI's limits because Congress lacked authority to regulate wheat grown for one's own use. He reasoned: In our federal system, the states …
Fourth Amendment Federalism? The Court's Vacillating Mistrust And Trust Of State Search And Seizure Laws, Kathryn R. Urbonya
Fourth Amendment Federalism? The Court's Vacillating Mistrust And Trust Of State Search And Seizure Laws, Kathryn R. Urbonya
Faculty Publications
No abstract provided.
Miranda And Reasonableness, Peter B. Rutledge
Miranda And Reasonableness, Peter B. Rutledge
Scholarly Works
Last term's decisions in Yarborough v. Alvarado and Missouri v. Seibert shed important light on the state of the Miranda doctrine in the Supreme Court. In Yarborough, a slim majority held that a state appellate court's failure to consider a defendant's age and history of contact with law enforcement in its “custody” determination was not “contrary to” or an “unreasonable application of” clearly established Supreme Court case law. In Seibert, a fractured majority affirmed the Missouri Supreme Court's decision to exclude a defendant's confession where police officers strategically withheld a suspect's Miranda rights at the outset of a …
Despite Alarmists, 'Kelo' Decision Protects Property Owners And Serves The General Good, John R. Nolon, Jessica A. Bacher
Despite Alarmists, 'Kelo' Decision Protects Property Owners And Serves The General Good, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
The United States Supreme Court’s decision in Kelo v. City of New London, has spurred national debate, as many people portray the court’s decision as a damaging blow to private property rights. In Kelo, the court confirmed local government’s ability to condemn property in an area designated as blighted by the state, in order to encourage economic development. This article highlights several positive examples of this sort of condemnation in New York case law, where the public interest was served by economic redevelopment. The article goes further, to distinguish several legal decisions from Kelo, where courts invalidated condemnations upon a …
'Takings' Clarified: U.S. Supreme Court Provides Clear Direction, John R. Nolon, Jessica A. Bacher
'Takings' Clarified: U.S. Supreme Court Provides Clear Direction, John R. Nolon, Jessica A. Bacher
Elisabeth Haub School of Law Faculty Publications
The United States Supreme Court holding in Lingle v. Chevron U.S.A., Inc. clarified years of takings jurisprudence and overturned a controversial decision in the case of Agins v. City of Tiburon. This article discusses how the Lingle court denounced the “substantially advances” test created in Agins, as a due process inquiry rather than a proper takings test. The Lingle court instead opted to create a clear four-category paradigm for takings cases, which focuses on the burden the government places on private property rights in order to distinguish takings categories.
Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar
Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar
University of San Diego Public Law and Legal Theory Research Paper Series
It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.
In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” …
The Chief Prosecutor, Sai Prakash
The Chief Prosecutor, Sai Prakash
University of San Diego Public Law and Legal Theory Research Paper Series
Since Watergate, legal scholars have participated in a larger debate about the President’s constitutional relationship to prosecutions. In particular, many legal scholars sought to debunk the received wisdom that prosecution was an executive function subject to presidential control. Revisionist scholars cited early statutes and practices meant to demonstrate that early presidents lacked control over prosecution. Among other things, scholars asserted that early presidents could not control either the federal district attorneys or the popular prosecutors who brought qui tam suits to enforce federal law. In fact, many of the revisionist claims are wrong and others are beside the point. Despite …
Pursuing Justice For The Mentally Disabled, Grant H. Morris
Pursuing Justice For The Mentally Disabled, Grant H. Morris
University of San Diego Public Law and Legal Theory Research Paper Series
This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization …
The Paradox Of Omnipotence: Courts, Constitutions, And Commitments, David S. Law
The Paradox Of Omnipotence: Courts, Constitutions, And Commitments, David S. Law
University of San Diego Public Law and Legal Theory Research Paper Series
Sovereigns, like individuals, must sometimes make commitments that limit their own freedom of action in order to accomplish their goals. Social scientists have observed that constitutional arrangements can, by restricting a sovereign's power, enable the sovereign to make such commitments. This paper advances several claims about the commitment problems that sovereigns face. First, constitutions do not necessarily solve such problems but can instead aggravate them, by entrenching inalienable governmental powers and immunities. Second, sovereigns and other actors face two distinct varieties of commitment problems - undercommitment and overcommitment - between which they must steer: an actor that can bind itself …
Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith
Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith
University of San Diego Public Law and Legal Theory Research Paper Series
Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that "[w]e are a religious people whose institutions presuppose a Supreme Being." What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's "Supreme Being" assertion be reconciled with the "no endorsement" prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. …
Abu Ghraib, Diane Marie Amann
Abu Ghraib, Diane Marie Amann
Scholarly Works
This article posits a theoretical framework within which to analyze various aspects of post-September 11 detention policy - including the widespread prisoner abuse that has been documented in the leaks and official releases that began with publication of photos made at Iraq's Abu Ghraib prison. Examined are the actions of civilian executive officials charged with setting policy, of judicial officers who evaluated it, and military personnel who implemented it. Abuse has been attributed to failures of training or planning. The article concentrates on a different failure, the failure of law to keep lawlessness in check. On September 11, law's map …
Foreword: Beyond Blakely And Booker: Pondering Modern Sentencing Process, Douglas A. Berman
Foreword: Beyond Blakely And Booker: Pondering Modern Sentencing Process, Douglas A. Berman
The Ohio State University Moritz College of Law Working Paper Series
The Supreme Court’s landmark decision in Blakely v. Washington and its federal follow-up United States v. Booker are formally about the meaning and reach of the Sixth Amendment’s right to a jury trial. But these decisions implicate and reflect, both expressly and implicitly, a much broader array of constitutional provisions and principles, in particular, the Due Process Clause of the Fifth and Fourteenth Amendments and the notice provision of the Sixth Amendment. And the future structure and operation of modern sentencing systems may greatly depend on how courts and others approach the due process provisions and principles which lurk in …
Rehnquist And Federalism: An Empirical Perspective, Ruth Colker, Kevin Scott
Rehnquist And Federalism: An Empirical Perspective, Ruth Colker, Kevin Scott
The Ohio State University Moritz College of Law Working Paper Series
We attempt to articulate a vision of federalism, particularly the Rehnquist version of federalism. We find that there is little consistent thought on the role of the judiciary in protecting federalism. This lack of consensus makes it difficult to predict the decisions federalists might make, but we attempt to outline Chief Justice Rehnquist's contributions to understanding the role courts should play in protecting federalism. We then attempt to assess if Rehnquist adheres to his own vision of federalism. Using his votes since his elevation to Chief Justice in 1986, we test several hypotheses designed to determine if Chief Justice Rehnquist …
Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon
Causing Constitutional Harm: How Tort Law Can Help Determine Harmless Error In Criminal Trials, Jason M. Solomon
Scholarly Works
This Article proceeds in four parts. Part II is a brief overview of harmless-error doctrine in the context of habeas challenges to state criminal convictions, focusing on the nature of the inquiry and the doctrinal deadlock described above. Part III is an empirical analysis of the post-Brecht cases in the federal courts of appeals. To search for a way out of the doctrinal deadlock, I started with a relatively straightforward question: what has happened to harmless-error analysis since Brecht? To answer this question, I reviewed and, with the help of a research assistant, coded all of the 315 …
The End Of American Democracy?, Bruce Ledewitz
The End Of American Democracy?, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
Fig Leaf Federalism And Tenth Amendment Exceptionalism, Nelson Lund
Fig Leaf Federalism And Tenth Amendment Exceptionalism, Nelson Lund
George Mason University School of Law Working Papers Series
The Supreme Court’s jurisprudence of federalism is at best undergoing an unfinished transformation, and is at worst just troubled and unsatisfying. In a little-noticed dissent in Tennessee v. Lane, Justice Scalia proposed an approach that could be generalized well beyond the specific position that he took in that case. Thus generalized, this approach may be understood as an elaboration of a proposal made by Justice O’Connor in her dissenting opinion twenty years ago in Garcia v. San Antonio Metro. Transit Auth. If adopted by the Court, this synthesis of the O’Connor and Scalia suggestions could work a real transformation in …
Tyranny Of The Majority, Richard E. Day
Tyranny Of The Majority, Richard E. Day
Curriculum and Instruction Faculty and Staff Scholarship
The Kentucky Supreme Court decision upholding a temporary injunction preventing Dana Seum Stephenson from serving as a state senator was welcome relief. I was beginning to wonder whether the Senate majority was simply going to be allowed to disregard the law, outvote the minority and bend the rules to fit their fancy. One thing is certain: With a super majority hanging in the balance, a lame court would have produced even more disregarding, outvoting and bending in the Senate.
Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne
Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne
Faculty Publications
No abstract provided.
Courtside, Paul M. Smith, Katherine A. Fallow, Daniel Mach, Aaron-Andrew P. Bruhl
Courtside, Paul M. Smith, Katherine A. Fallow, Daniel Mach, Aaron-Andrew P. Bruhl
Popular Media
No abstract provided.
The Ten Commandments Return To School And Legal Controversy Follows Them, Leora Harpaz
The Ten Commandments Return To School And Legal Controversy Follows Them, Leora Harpaz
Faculty Scholarship
The United States Supreme Court confronted the issue of a classroom display of the Ten Commandments almost 25 years ago in the case of Stone v. Graham. In that case, the Court struck down a Kentucky statute that required the posting of the Ten Commandments in all public school classrooms. In a per curiam opinion, the Court summarily reversed a decision of the Supreme Court of Kentucky and concluded that the statute violated the First Amendment's Establishment Clause because it had no secular purpose. The outcomes of recent judicial decisions considering the constitutionality of the display of the Ten Commandments …
Roger Williams On Liberty Of Conscience, Edward J. Eberle
Roger Williams On Liberty Of Conscience, Edward J. Eberle
Law Faculty Scholarship
No abstract provided.
Presidential Elections - The Right To Vote And Access To The Ballot, John B. Anderson, Mitchell W. Berger, Grace E. Robson
Presidential Elections - The Right To Vote And Access To The Ballot, John B. Anderson, Mitchell W. Berger, Grace E. Robson
Faculty Scholarship
The following article is a tripartite effort by Mitchell Berger and Grace E. Robson, members of the Florida Bar; John B. Anderson, a member of the Nova Southeastern University's Shepard Broad Law Center faculty; and a team of two of the students at that law school, Jason Blank and Tom Brogan, to examine the subject of ballot access for non-major party candidates in presidential elections in the wake of the recent decision of the Supreme Court of Florida in Reform Party of Florida v. Black.' Mr. Berger has furnished a critical analysis of that decision. Our team of students has …
The Coherentism Of Democracy And Distrust, Michael C. Dorf
The Coherentism Of Democracy And Distrust, Michael C. Dorf
Cornell Law Faculty Publications
No abstract provided.
The Limited Path Dependency Of Precedent, Michael J. Gerhardt
The Limited Path Dependency Of Precedent, Michael J. Gerhardt
Faculty Publications
No abstract provided.
Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben
Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben
Faculty Publications
Scholars have approached arbitration, especially under the Federal Arbitration Act, from a variety of perspectives, including doctrinal, historical, empirical, and practical. One aspect that has not yet been fully considered, however, is the relationship between arbitration and constitutional democracy. Yet, as a dispute-resolution process that is often sanctioned by the government, that sometimes inextricably intertwines governmental and private conduct, and that derives its legitimacy from the government, it is appropriate--indeed, our responsibility--to ask whether arbitration furthers the goals of democratic governance. It is only sensible that state-supported dispute resolution in a democracy should strengthen, rather than diminish, democratic governance and …
Supreme Court Watch, Reginald Oh
Supreme Court Watch, Reginald Oh
Law Faculty Articles and Essays
Discusses the case in the 2004-05 U.S. Supreme Court Term which decided a constitutional challenge to the State of California's practice of temporarily racially segregating its prisoners. On November 2, 2004, the Court heard oral arguments in Johnson v. California, a lawsuit brought by an African-American prison inmate in the California Department of Corrections. The petitioner contends that the state's longstanding policy of racially segregating prisoners for sixty days violates the Equal Protection Clause. On February 23, 2005, the Court issued its opinion in ]ohnson v. California, 125 S. Ct. 1141 (2005), and held that the policy of …