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Articles 61 - 90 of 102
Full-Text Articles in Law
Children Of Distant Fathers: Sketching An Ethos Of Constitutional Liberty, Gene R. Nichol
Children Of Distant Fathers: Sketching An Ethos Of Constitutional Liberty, Gene R. Nichol
Faculty Publications
In this article, Professor Gene R. Nichol argues for a constitutional right to self-governance that legitimizes the court's inquiry into the nature of fundamental personal rights. He locates this right in the ninth amendment, which affords protection to unlisted liberties. The clearest statement of the American commitment to selfgovernance, he argues, is found in Thomas Jefferson's Declaration of Independence, and in the philosophy of Jeffersonian individualism. Drawing on the writing of Jefferson and Lincoln, Professor Nichol asserts that our society has committed itself to "the progressive unfolding of individual sovereignty." Critics of the United States Supreme Court's decisions that give …
The Second Death Of Federalism, William W. Van Alstyne
The Second Death Of Federalism, William W. Van Alstyne
Faculty Publications
In 1976, in National League of Cities v. Usery, the Supreme Court distinguished acts of Congress regulating commercial relations from acts of Congress commanding the terms of state services. Last Term, in Garcia v. San Antonio Metropolitan Transit Authority, the Court abandoned the distinction and held that it was principally for Congress to determine federalism questions. In this Comment, Professor Van Alstyne criticizes the Court on both counts.
Beyond Carolene Products, Bruce A. Ackerman
Beyond Carolene Products, Bruce A. Ackerman
Addison Harris Lecture
No abstract provided.
The Market Participant Test In Dormant Commerce Clause Analysis - Protecting Protectionism?, Richard Henry Seamon
The Market Participant Test In Dormant Commerce Clause Analysis - Protecting Protectionism?, Richard Henry Seamon
Articles
No abstract provided.
Property Rules, Liability Rules, And Adverse Possession, Thomas W. Merrill
Property Rules, Liability Rules, And Adverse Possession, Thomas W. Merrill
Faculty Scholarship
The law of adverse possession tends to be regarded as a quiet backwater. Both judicial opinions and leading treatises treat the legal doctrine as settled. The theory underlying the doctrine, although routinely discussed in the opening weeks of first-year property courses, is only rarely aired in the law reviews any more. Indeed, the most frequently cited articles on adverse possession date from the 1930s and earlier. Perhaps most tellingly, adverse possession seems to have completely escaped the attention of the modem law and economics movement – almost a sure sign of obscurity in today's legal-academic world.
Nevertheless, two recent events …
Government–Owned Media: The Government As Speaker And Censor, Linda L. Berger
Government–Owned Media: The Government As Speaker And Censor, Linda L. Berger
Scholarly Works
When government operates a communications medium, it may either promote first amendment values, by ensuring a diverse marketplace of ideas, or hinder them, by censoring the information and ideas it conveys. This Note proposes a synthesis of government speech and government forum analyses which would provide first amendment limitations on government-operated media while still allowing government to exercise editorial discretion.
The Most Sacred Text: The Supreme Court's Use Of The Federalist Papers, James G. Wilson
The Most Sacred Text: The Supreme Court's Use Of The Federalist Papers, James G. Wilson
Law Faculty Articles and Essays
In interpreting the Constitution the Supreme Court has increasingly referred to The Federalist papers, a series of essays written by Alexander Hamilton, James Madison, and John Jay during the struggle to ratify the Constitution. This article describes in narrative form how the Court has incorporated The Federalist into its opinions, and summarizes how constitutional historians and political scientists have evaluated The Federalist and the Constitution. This format highlights the limited nature of the Court's historical inquiry by demonstrating that the Court and constitutional scholars have been traveling in parallel universes. Either the Court has ignored or been unaware of the …
Environmental Regulation And The Constitution, James E. Krier
Environmental Regulation And The Constitution, James E. Krier
Book Chapters
Indirectly, at least, the Constitution provides the federal government with power to regulate on behalf of environ-mental quality, but it also sets limits on the power. It sets limits, likewise, on the regulatory power of the states. What it does not do, at present, is grant the ‘‘constitutional right to a clean environment’’ so avidly sought in the hey-day of environmental concern, the decade of the 1970s. Thus, the one unique aspect of the general topic consid-ered here has no doctrinal standing; the remaining aspects are matters of doctrine, but they are not unique to envi-ronmental regulation. It is quite …
Less Than The Sum Of Its Parts, Charles F. Abernathy
Less Than The Sum Of Its Parts, Charles F. Abernathy
Georgetown Law Faculty Publications and Other Works
Constitutional Choices is not a newly created treatise but a collection of essays on a diverse range of topics. Most were printed previously in serial publications, and the others, one suspects, arose from projects undertaken independently of one another over the last few years. Such reprintings may strike some as a waste of paper and purchasers' money, but, as The New Yorker Album of Drawings amply proves, additional insight is often gained from seeing parts brought together as a whole. But that is not the case here, for the whole of Tribe's new book is less than the sum of …
The Origins And Original Significance Of The Just Compensation Clause Of The Fifth Amendment, William Michael Treanor
The Origins And Original Significance Of The Just Compensation Clause Of The Fifth Amendment, William Michael Treanor
Georgetown Law Faculty Publications and Other Works
The principle that the state necessarily owes compensation when it takes private property was not generally accepted in either colonial or revolutionary America. Uncompensated takings were frequent and found justification first in appeals to the crown and later in republicanism, the ideology of the Revolution. The post-independence movement for just compensation requirements at the state and national level was part of a broader ideological shift away from republicanism, which stressed the primacy of the common good, and toward liberalism. At the time the Bill of Rights was adopted, that shift had not been completed, but the trends of the revolutionary …
The Capital Defendant's Right To Make A Personal Plea For Mercy: Common Law Allocution And Constitutional Mitigation, J. Thomas Sullivan
The Capital Defendant's Right To Make A Personal Plea For Mercy: Common Law Allocution And Constitutional Mitigation, J. Thomas Sullivan
Faculty Scholarship
No abstract provided.
The Power Of The President To Enforce The Fourteenth Amendment, Bruce Ledewitz
The Power Of The President To Enforce The Fourteenth Amendment, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.
Edmond Cahn's Sense Of Injustice: A Contemporary Reintroduction, Bruce Ledewitz
Edmond Cahn's Sense Of Injustice: A Contemporary Reintroduction, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.
Maternal Duties During Pregnancy: Toward A Conceptual Framework, Maxwell L. Stearns
Maternal Duties During Pregnancy: Toward A Conceptual Framework, Maxwell L. Stearns
Faculty Scholarship
No abstract provided.
Book Review Of Reconsecrating America, By George Goldberg, Ruti G. Teitel
Book Review Of Reconsecrating America, By George Goldberg, Ruti G. Teitel
Other Publications
No abstract provided.
Nonoriginalist Constitutional Rights And The Problem Of Judicial Finality, Daniel O. Conkle
Nonoriginalist Constitutional Rights And The Problem Of Judicial Finality, Daniel O. Conkle
Articles by Maurer Faculty
No abstract provided.
"We The People": John Locke, Collective Constitutional Rights, And Standing To Challenge Government Action, Donald L. Doernberg
"We The People": John Locke, Collective Constitutional Rights, And Standing To Challenge Government Action, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
The Article is presented in three Parts. Part I documents the enormous effect that Locke's political philosophy had on the Constitution's Framers and traces the idea of collective rights through Locke's Second Treatise, showing how Locke viewed government as a trustee and society as the settlor-beneficiary that forms and gives legitimacy to the government. Part II reviews the development of the current doctrine of standing and demonstrates how the current standing model creates a class of cases where government may, with impunity, violate the Constitution. Part III demonstrates the anomaly of the Supreme Court's current doctrine in a society founded …
Commentary, Ralph Michael Stein
Commentary, Ralph Michael Stein
Elisabeth Haub School of Law Faculty Publications
During the past year, the Court of Appeals for the Second Circuit decided a number of significant appeals involving constitutional issues. As is generally the case, most of the issues presented to the Second Circuit were also under judicial scrutiny in other federal appellate courts. Four first amendment cases decided by the court—three dealing primarily with freedom of religion and a fourth with freedom of the press—are particularly noteworthy and merit review.
The First Amendment And Distributional Voting Rights Controversies, Emily M. Calhoun
The First Amendment And Distributional Voting Rights Controversies, Emily M. Calhoun
Publications
No abstract provided.
The Privilege Against Self-Incrimination In A Rescue Situation, William T. Pizzi
The Privilege Against Self-Incrimination In A Rescue Situation, William T. Pizzi
Publications
No abstract provided.
Book Review, Pierre Schlag
Causing The Conditions Of One's Own Defense: A Study In The Limits Of Theory In Criminal Law Doctrine, Paul H. Robinson
Causing The Conditions Of One's Own Defense: A Study In The Limits Of Theory In Criminal Law Doctrine, Paul H. Robinson
All Faculty Scholarship
One widely-stated goal of criminal law theory is to create the set of rules that best implements our collective sense of justice. To reach this goal, the theorist continuously adjusts his theory so that it generates rules that better reflect our fundamental notions of justice. These rules, moreover, must function as workable doctrine, which in the context of criminal law means precise statutory provisions. It is this process of theoretical refinement and translation that is the topic of this article. Can good theory generate results that approximate our collective sense of justice? Can the theoretical refinements be translated into workable …
Liberty And Community In Constitutional Law: The Abortion Cases In Comparative Perspective, Donald P. Kommers
Liberty And Community In Constitutional Law: The Abortion Cases In Comparative Perspective, Donald P. Kommers
Journal Articles
In the mid-1970s the high courts of several western democracies handed down constitutional decisions concerning the legal regulation of abortion. All of the courts sustained their abortion statutes except the United States and West Germany, which moved in opposite directions. The US Supreme Court voided the conservative abortion statutes of various states while West Germany's highest court nullified an abortion statute that took a liberal stance on abortion. The extended opinions of the American and German courts and their contrasting grounds for decision make them fitting candidates for a comparative analysis of abortion jurisprudence. The abortion issue illustrates the tension …
The Formulaic Constitution, Robert F. Nagel
The Formulaic Constitution, Robert F. Nagel
Publications
The Supreme Court's constitutional jurisprudence of late has been filled with formulae - tests that must be met, hurdles that must be overcome. This multi-pronged analytical technique is, according to Professor Nagel, distancing the Justices from both their audience, the American public, and their text, the Constitution. In an effort to retain the authority of that text, the Court is instead displacing it; in an effort to persuade that audience, the Court is instead excluding it. Furthermore, the Court's attempt to constrain judges has actually created an irresponsible judicial freedom, while its attempt to locate a middle ground between the …
Rules And Standards, Pierre Schlag
Framers Intent: The Illegitimate Uses Of History, Pierre Schlag
Framers Intent: The Illegitimate Uses Of History, Pierre Schlag
Publications
No abstract provided.
Cooperative Federalism Under The Surface Mining Control And Reclamation Act: Is This Any Way To Run A Government?, Mark Squillace
Cooperative Federalism Under The Surface Mining Control And Reclamation Act: Is This Any Way To Run A Government?, Mark Squillace
Publications
No abstract provided.
Two Models Of The Fourth Amendment, Craig M. Bradley
Two Models Of The Fourth Amendment, Craig M. Bradley
Articles by Maurer Faculty
No abstract provided.
Another Way Of Looking At School Aid, John H. Garvey
Another Way Of Looking At School Aid, John H. Garvey
Scholarly Articles
No abstract provided.
Electronic Tracking Devices And The Fourth Amendment: Knotts, Karo, And The Questions Still Unanswered, Clifford S. Fishman
Electronic Tracking Devices And The Fourth Amendment: Knotts, Karo, And The Questions Still Unanswered, Clifford S. Fishman
Scholarly Articles
This article will examine the Knotts and Karo decisions, analyze the unanswered questions relating to the use of electronic tracking devices, and outline legislation that might best resolve those questions and strike a proper balance between the often conflicting values of individual privacy and effective law enforcement.