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Articles 1 - 15 of 15
Full-Text Articles in Law
Honor's Constitutional Moment: The Oath And Presidential Transitions, Paul Horwitz
Honor's Constitutional Moment: The Oath And Presidential Transitions, Paul Horwitz
NULR Online
No abstract provided.
Is Military Law Relevant To The "Evolving Standards Of Decency" Embodied In The Eighth Amendment?, Corey Rayburn Yung
Is Military Law Relevant To The "Evolving Standards Of Decency" Embodied In The Eighth Amendment?, Corey Rayburn Yung
NULR Online
No abstract provided.
Continuing The Debate About Presidential Debates, Alexander J. Blenkinsopp
Continuing The Debate About Presidential Debates, Alexander J. Blenkinsopp
NULR Online
No abstract provided.
Beyond Guantánamo, Obstacles And Options (Part Ii), Gregory S. Mcneal
Beyond Guantánamo, Obstacles And Options (Part Ii), Gregory S. Mcneal
NULR Online
No abstract provided.
Beyond Guantánamo, Obstacles And Options, Gregory S. Mcneal
Beyond Guantánamo, Obstacles And Options, Gregory S. Mcneal
NULR Online
No abstract provided.
Child Rape, Moral Outrage, And The Death Penalty, Susan A. Bandes
Child Rape, Moral Outrage, And The Death Penalty, Susan A. Bandes
NULR Online
No abstract provided.
Rediscovering The Law's Moral Roots, Morris B. Hoffman
Rediscovering The Law's Moral Roots, Morris B. Hoffman
NULR Online
No abstract provided.
Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas
Engaging Capital Emotions, Douglas A. Berman, Stephanos Bibas
NULR Online
No abstract provided.
Substantive Due Process After Gonzales V. Carhart, Steven G. Calabresi
Substantive Due Process After Gonzales V. Carhart, Steven G. Calabresi
Faculty Working Papers
This Essay begins in Part I with a doctrinal evaluation of the status of Washington v. Glucksberg ten years after that decision was handed down. Discussion begins with consideration of the Roberts Court's recent decision in Gonzales v. Carhart and then turns to the subject of Justice Kennedy's views in particular on substantive due process. In Part II, the Essay goes on to consider whether the Glucksberg test for substantive due process decision making is correct in light of the original meaning of the Fourteenth Amendment. The Essay concludes in Parts II and III that Glucksberg is right to confine …
Beyond The Article I Horizon: Congress’S Enumerated Powers And Universal Jurisdiction Over Drug Crimes, Eugene Kontorovich
Beyond The Article I Horizon: Congress’S Enumerated Powers And Universal Jurisdiction Over Drug Crimes, Eugene Kontorovich
Faculty Working Papers
This paper explores the Article I limits faced by Congress in exercising universal jurisdiction (UJ) – that is, regulating extraterritorial conduct by foreigners with no affect on or connection the U.S. While UJ is becoming increasingly popular in Europe for the punishment of human rights offenses, Congress's primary use of UJ today is under the Maritime Drug Law Enforcement Act. This obscure law allows the U.S. to punish for violating U.S. drug laws foreign defendants on foreign vessels in international waters. The MDLEA's UJ provisions raise fundamental questions about the source and extent of Congress's constitutional power to regulate purely …
The Mismatch Between Public Nuisance Law And Global Warming, David A. Dana
The Mismatch Between Public Nuisance Law And Global Warming, David A. Dana
Faculty Working Papers
The federal courts using the common law method of case-by-case adjudication may have institutional advantages over the more political branches, such as perhaps more freedom from interest group capture and more flexibility to tailor decisions to local conditions. Any such advantages, however, are more than offset by the disadvantages of relying on the courts in common resource management in general and in the management of the global atmospheric commons in particular. The courts are best able to serve a useful function resolving climate-related disputes once the political branches have acted by establishing a policy framework and working through the daunting …
Originalism: Lessons From Things That Go Without Saying, Robert William Bennett
Originalism: Lessons From Things That Go Without Saying, Robert William Bennett
Faculty Working Papers
After setting the originalism "stage" and discussion of some of its tribulations, the article turns to the problem of constitutional silences. These come in many shadings, and the article concentrates on three that illustrate different sorts of problems: 1) the failure of the Guarantee Clause to provide a more precise definition of a "republican form of government"; 2) the deafening silence about any role for political parties in the nation's politics and governance; and 3) the absence of guidance about "discretion" to be exercised by presidential elections, which surfaces these days as the problem of the "faithless elector," one who …
Exclusionary Eminent Domain, David A. Dana
Exclusionary Eminent Domain, David A. Dana
Faculty Working Papers
This Article explores the phenomenon of "exclusionary eminent domain" – the exercise of eminent domain that has the effect of excluding low-income households from an otherwise predominantly or entirely middle-class or wealthy neighborhood or locality, whether or not exclusion itself was the purpose of the condemnation. All condemnations exclude the condemned owner (and his or her tenants, if any) from the condemned property. Exercises of what I am calling "exclusionary eminent domain" are doubly exclusive because the displaced residents are unable to afford new housing in the same neighborhood or locality as their now-condemned, former homes. In exclusionary eminent domain, …
Commercial Speech, First Amendment Intuitionism And The Twilight Zone Of Viewpoint Discrimination, Martin H. Redish
Commercial Speech, First Amendment Intuitionism And The Twilight Zone Of Viewpoint Discrimination, Martin H. Redish
Faculty Working Papers
In this article, I seek to demonstrate that arguments made by scholars against First Amendment protection for commercial speech may be divided into three categories: (1) rationalist, (2) intuitionist, and (3) ideological. I argue that all three forms of opposition to commercial speech protection suffer, either directly or indirectly, from the same fundamental flaw: each constitutes or at the very least facilitates creation of a constitutionally destructive form of viewpoint discrimination. I show that all of the specific rationales for opposing First Amendment protection for commercial speech are fatally and illogically underinclusive: In each case the justification asserted to support …
Corruption Of Religion And The Establishment Clause, Andrew Koppelman
Corruption Of Religion And The Establishment Clause, Andrew Koppelman
Faculty Working Papers
Government neutrality toward religion is based on familiar considerations: the importance of avoiding religious conflict, alienation of religious minorities, and the danger that religious considerations will introduce a dangerous irrational dogmatism into politics and make democratic compromise more difficult. This paper explores one consideration, prominent at the time of the framing, that is often overlooked: the idea that religion can be corrupted by state involvement with it. This idea is friendly to religion but, precisely for that reason, is determined to keep the state away from religion.
If the religion-protective argument for disestablishment is to be useful today, it cannot …