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Articles 1 - 30 of 445
Full-Text Articles in Law
Review Of The Complete Bill Of Rights: The Drafts, Debates, Sources And Origins, By Neil Cogan, And Declaring Rights: A Brief History With Documents, By Jack N. Rakove, Charles Baron
Charles H. Baron
No abstract provided.
Rapport De Charles Baron, Charles Baron
Suspicionless Drug Testing And Chandler V. Miller: Is The Supreme Court Making The Right Decisions, Ross H. Parr
Suspicionless Drug Testing And Chandler V. Miller: Is The Supreme Court Making The Right Decisions, Ross H. Parr
William & Mary Bill of Rights Journal
During the last decade, the United States Supreme Court has rendered four major decisions regarding the validity of suspicionless drug testing policies. Such drug testing policies have become a common way for employers and other interested parties-including the government-both to deter the use of drugs and to determine who is acting under the influence of illegal narcotics. Because government officials often randomly select individuals for drug testing, some of these individuals have charged that a governmental drug testing policy violates the Fourth Amendment. The Supreme Court found this argument unconvincing in three cases decided between 1989 and 1997, but in …
Protecting The Fetus: The Criminalization Of Prenatal Drug Use, Kellam T. Parks
Protecting The Fetus: The Criminalization Of Prenatal Drug Use, Kellam T. Parks
William & Mary Journal of Race, Gender, and Social Justice
No abstract provided.
Original Intent: Does The Double Jeopardy Clause Apply To Incarceration?, Bruce Ledewitz
Original Intent: Does The Double Jeopardy Clause Apply To Incarceration?, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
Lincoln, Vallandingham, And Anti-War Speech In The Civil War, Michael Kent Curtis
Lincoln, Vallandingham, And Anti-War Speech In The Civil War, Michael Kent Curtis
William & Mary Bill of Rights Journal
In the early morning hours of May 5, 1863, Union soldiers forcibly arrested Clement L. Vallandigham, a prominent Democratic politician and former congressman, for an anti-war speech which he had given a few days earlier in Mount Vernon, Ohio. Vallandigham's arrest ignited debate about freedom of speech in a democracy during a time of war and the First Amendment rights of critics of an administration. This Article is one in a series by Professor Curtis which examines episodes in the history of free speech before and during the Civil War.
In this Article, Professor Curtis explores the First Amendment's guarantee …
State Sales & Use Tax On Internet Transactions, Sandi Owen
State Sales & Use Tax On Internet Transactions, Sandi Owen
Federal Communications Law Journal
The explosive growth of electronic commerce raises serious questions about the viability of the current state sales and use tax system. Sales via the Internet and other electronic means are changing both the form and substance of consumer transactions, and such sales often do not satisfy the traditional nexus requirement for state taxation because on-line vendors frequently lack physical presence in the purchaser’s home state. The inability to collect taxes on this growing segment of the retail sales market will impair states’ efforts to raise revenues and cause economically similar transactions to be treated differently. Consequently, Congress must act pursuant …
Overcoming Overbreadth: Facial Challenges And The Valid Rule Requirement , Marc E. Isserles
Overcoming Overbreadth: Facial Challenges And The Valid Rule Requirement , Marc E. Isserles
American University Law Review
No abstract provided.
Remarks By U.S. Senator Robert C. Byrd The Constitution In Peril, Robert C. Byrd
Remarks By U.S. Senator Robert C. Byrd The Constitution In Peril, Robert C. Byrd
West Virginia Law Review
No abstract provided.
Law And Human Dignity: The Judicial Soul Of Justice Brennan, Stephen J. Wermiel
Law And Human Dignity: The Judicial Soul Of Justice Brennan, Stephen J. Wermiel
William & Mary Bill of Rights Journal
The concept of human dignity has emerged in the United States in recent decades as an important theoretical and sometimes practical source of individual rights and liberties. Human dignity is cited in jurisprudential writings and discussed in some court opinions as a means of enhancing the broad phrases of the Bill of Rights and the Fourteenth Amendment. This Essay examines the pivotal role that the late Justice William J. Brennan, Jr., played on the United States Supreme Court in making concepts of human dignity a valued and essential part of rights formulation. This essay explores Justice Brennan 's vision of …
Physician-Assisted Suicide: State Legislation Teetering At The Pinnacle Of A Slippery Slope, Eunice Park
Physician-Assisted Suicide: State Legislation Teetering At The Pinnacle Of A Slippery Slope, Eunice Park
William & Mary Bill of Rights Journal
Physician-assisted suicide has become the subject of a hotly contested legal and political debate, both in the United States and abroad. In 1997, the United States Supreme Court rendered two decisions concerning physician-assisted suicide, and two states recently enacted legislation on this issue: Oregon in 1997 and Virginia in 1998. Nevertheless, the legality of physician-assisted suicide remains unclear as doctors, pharmacists, legal commentators, and a growing segment of the general population continue to argue over the line between "letting die" and "killing." This Note analyzes both the constitutional and political aspects of the right-to-die debate, focusing primarily on the political …
An Original Model Of The Independent Counsel Statute, Ken Gormley
An Original Model Of The Independent Counsel Statute, Ken Gormley
Michigan Law Review
On Friday, October 19, 1973, President Richard M. Nixon took a risky step to de-fang the Watergate investigation that had become a "viper in the bosom" of his Presidency. The U.S. Court of Appeals had just directed him to tum over tape-recordings subpoenaed by Watergate Special Prosecutor Archibald Cox; these taperecordings might prove or disprove White House involvement in the Watergate cover-up. Rather than challenge this ruling, the President conceived a new plan. The White House would prepare summaries of the nine tape-recordings in question, which would be verified by Senator John Stennis, a seventy-two-year-old Democrat from Mississippi, working alone …
The Qualitative Dimension Of Fourth Amendment "Reasonableness", Sherry F. Colb
The Qualitative Dimension Of Fourth Amendment "Reasonableness", Sherry F. Colb
Cornell Law Faculty Publications
Supreme Court doctrine protects two seemingly distinct kinds of interests under the heading of privacy rights: one "substantive," the other "procedural." The Fourth Amendment guarantee against "unreasonable searches and seizures" has been generally interpreted to protect procedural privacy. Searches are typically defined as governmental inspections of activities and locations in which an individual has a reasonable expectation of privacy from observation. In the typical case, this reasonable expectation of privacy may be breached only where the government has acquired a quantitatively substantial objective basis for believing that the search would uncover evidence of a crime. Substantive privacy rights have not …
Why Basic Liberties Are Bilateral, James W. Nickel
The Treaty Power And American Federalism, Curtis A. Bradley
The Treaty Power And American Federalism, Curtis A. Bradley
Michigan Law Review
For much of this century, American foreign affairs law has assumed that there is a sharp distinction between what is foreign and what is domestic, between what is external and what is internal. This assumption underlies a dual regime of constitutional law, in which federal regulation of foreign affairs is subject to a different, and generally more relaxed, set of constitutional restraints than federal regulation of domestic affairs. In what is perhaps its most famous endorsement of this proposition, the Supreme Court stated in 1936 that "the federal power over external affairs [is] in origin and essential character different from …
Equal Rights, Special Rights, And The Nature Of Antidiscrimination Law, Peter J. Rubin
Equal Rights, Special Rights, And The Nature Of Antidiscrimination Law, Peter J. Rubin
Michigan Law Review
Despite the continued belief held by most Americans that certain characteristics should not form the basis for adverse decisions about individuals in employment, housing, public accommodations, and the provision of a wide range of governmental and private services and opportunities, antidiscrimination laws have increasingly come under attack on the ground that they provide members of the group against whom discrimination is forbidden with "special rights." The "special rights" objection has been voiced most strongly, but not exclusively, against laws that seek to prohibit discrimination on the basis of sexual orientation. This line of attack has not always been effective, but …
Formalism And State Sovereignty In Printz V. United States: Cooperation By Consent, Andrew S. Gold
Formalism And State Sovereignty In Printz V. United States: Cooperation By Consent, Andrew S. Gold
Faculty Scholarship
No abstract provided.
A Loss Of Control: Privilege Cases Diminish Presidential Power, Neal Devins
A Loss Of Control: Privilege Cases Diminish Presidential Power, Neal Devins
Popular Media
No abstract provided.
The New American Caste System: The Supreme Court And Discrimination Among Civil Rights Plaintiffs, Melissa L. Koehn
The New American Caste System: The Supreme Court And Discrimination Among Civil Rights Plaintiffs, Melissa L. Koehn
University of Michigan Journal of Law Reform
Fifteen percent of the decisions issued by the Supreme Court during its 1996-97 Term centered around section 1983. Section 1983 provides civil rights plaintiffs with a procedural mechanism for vindicating their federally protected rights, including those enshrined in the Constitution. The Court's decisions from its 1996-97 Term reflect a continuation of the alarming trend that has permeated section 1983 for the last two decades-a movement to decrease the scope of section 1983, regardless of the impact on constitutional rights. The Supreme Court appears to be creating a hierarchy both of constitutional rights and of plaintiffs: free speech and takings claims …
Choppy Waters Are Forecast For Academic Free Speech, Rachel E. Fugate
Choppy Waters Are Forecast For Academic Free Speech, Rachel E. Fugate
Florida State University Law Review
No abstract provided.
Undoing The New Deal Through The New Presidentialism, Cynthia R. Farina
Undoing The New Deal Through The New Presidentialism, Cynthia R. Farina
Cornell Law Faculty Publications
The Shifting Preemption Paradigm: Conceptual And Interpretive Issues, Karen A. Jordan
The Shifting Preemption Paradigm: Conceptual And Interpretive Issues, Karen A. Jordan
Vanderbilt Law Review
Recent decisions have signaled a subtle shift away from the Supreme Court's categorical approach to the issue of federal preemption of state law, and toward a preemption continuum in which the implied preemption theories may inform an express preemption analysis. Yet, the Court as a whole has avoided addressing the issues arising from the integration of the doctrines. In this Article, Professor Jordan explores some of these difficult issues. The conceptual issues concern when and how the implied theories should be used in an analysis involving an express preemption clause. She analyzes the Court's recent use of the implied theories …
The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck
The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck
Faculty Publications
This Article inquires into whether the singular purpose of the Establishment Clause is to secure individual rights, as is conventionally believed, or whether its role is more properly understood as a structural restraint on governmental power. If the Clause is indeed structural in nature, then its task is to negate from the purview of civil governance all matters "respecting an establishment of religion." Conceptualizing the role of the Establishment Clause as either rights-securing or structural has profound consequences for the nation's constitutional settlement concerning the interrelationship of government and religion.
Rethinking The Clear And Present Danger Test, David R. Dow, R. Scott Shieldes
Rethinking The Clear And Present Danger Test, David R. Dow, R. Scott Shieldes
Indiana Law Journal
No abstract provided.
The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf
The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf
Cornell Law Faculty Publications
No abstract provided.
The "Dirty Little Secret": Why Class Actions Have Emerged As The Only Viable Option For Women Inmates Attempting To Satisfy The Subjective Prong Of The Eighth Amendment In Suits For Custodial Sexual Abuse, Amy Laderberg
William & Mary Law Review
No abstract provided.
Separation Of Powers In State Constitutional Law - Introduction, Carl T. Bogus
Separation Of Powers In State Constitutional Law - Introduction, Carl T. Bogus
Law Faculty Scholarship
No abstract provided.
Challenging Defamatory Opinions As An Alternative To Media Self-Regulation, James F. Ponsoldt
Challenging Defamatory Opinions As An Alternative To Media Self-Regulation, James F. Ponsoldt
Scholarly Works
This Essay analyzes defamation law as it applies to the media. Part I summarizes the state of defamation law prior to the 1990 Supreme Court decision in Milkovich v. Lorain Journal Co., when opinion was presumed immune from liability. Part II examines the holding in Milkovich, which suggests the potential liability for recklessly defamatory statements couched as or in the context of opinion. Part III reviews post-Milkovich decisions during the 1990's. This Essay concludes that the predictions of Milkovich were accurate in many jurisdictions and could apply to televised allegations during the coverage of the Clinton affair. …
We The Unconventional American People, James E. Fleming
We The Unconventional American People, James E. Fleming
Faculty Scholarship
In his 1991 volume, We the People: Foundations, Bruce Ackerman urged us as Americans to declare our independence from European models of government and to “look inward” to rediscover our distinctive constitutional scheme--dualist democracy.1 In his new volume, We the People: Transformations, he exhorts us as dualist democrats to break up the monopoly that Article V of the Constitution has held on our vision of constitutional amendment. He urges us to move “beyond Article V” and to embrace a pluralist understanding of the sources of higher lawmaking (pp 15-17). Only by doing so, he argues, will we be able …
The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John Copeland Nagle
The Commerce Clause Meets The Delhi Sands Flower-Loving Fly, John Copeland Nagle
Michigan Law Review
The protagonist in our story has six legs, is one inch long, and dies two weeks after it emerges from the ground. To the untrained eye, the Delhi Sands Flower-Loving Fly looks like, well, a big fly. Entomologists know better. This particular fly can hover like a hummingbird as it uses its long tubular nose to extract nectar from flowers. It can only live in particular fine soils - the Delhi sands - that appear in patches over a forty square mile stretch from Colton to Ontario, California. Today only a few hundred Delhi Sands Flower-Loving Flies survive in less …