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Articles 31 - 59 of 59
Full-Text Articles in Law
A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf
A Nonoriginalist Perspective On The Lessons Of History, Michael C. Dorf
Cornell Law Faculty Publications
No abstract provided.
A Text Is Just A Text, Paul F. Campos
Progress And Constitutionalism, Robert F. Nagel
Hiding The Ball, Pierre Schlag
Forty Years In The Desert, Paul F. Campos
Forty Years In The Desert, Paul F. Campos
Publications
The author uses Brown v. Board of Education and the volumes of commentary it has provoked to illustrate that coherent constitutional interpretation is a useless exercise. He argues that the decision should be accepted as political reality and moral necessity and that we should cease debating its merit as constitutional interpretation.
A Heterodox Catechism, Paul Campos
The State Interest In The Good Citizen: Constitutional Balance Between The Citizen And The Perfectionist State, Steve Sheppard
The State Interest In The Good Citizen: Constitutional Balance Between The Citizen And The Perfectionist State, Steve Sheppard
Steve Sheppard
Judges must have flexibility when responding to the changing norms of justice in society, but they must also maintain predictability to enhance the cultural acceptance of the Court’s authority and the authority of law in society. Predictability demands that a rationale for each decision be communicated by the authors of opinions so that it can be replicable by other courts.
The debate over a preferred method of adjudication, balancing or categorical, is moot because the two methods are not mutually exclusive. The important issue is the definition of interests to be promoted or discouraged by law, which must also be …
Three Mistakes About Interpretation, Paul Campos
Name-Calling And The Clear Error Rule, Robert F. Nagel
Name-Calling And The Clear Error Rule, Robert F. Nagel
Publications
No abstract provided.
How To Do Things With The First Amendment, Pierre Schlag
How To Do Things With The First Amendment, Pierre Schlag
Publications
No abstract provided.
Disagreement And Interpretation, Robert F. Nagel
Against Constitutional Theory, Paul Campos
Bats And Owls And The Insane Moon: The Search For The Republic's Unwritten Constitution, E. F. Roberts
Bats And Owls And The Insane Moon: The Search For The Republic's Unwritten Constitution, E. F. Roberts
Cornell Law Faculty Publications
No abstract provided.
Progressive And Conservative Constitutionalism, Robin West
Progressive And Conservative Constitutionalism, Robin West
Georgetown Law Faculty Publications and Other Works
American constitutional law in general, and fourteenth amendment jurisprudence in particular, is in a state of profound transformation. The "liberal-legalist" and purportedly politically neutral understanding of constitutional guarantees that dominated constitutional law and theory during the fifties, sixties, and seventies, is waning, both in the courts and in the academy. What is beginning to replace liberal legalism in the academy, and what has clearly replaced it on the Supreme Court, is a very different conception - a new paradigm - of the role of constitutionalism, constitutional adjudication, and constitutional guarantees in a democratic state. Unlike the liberal-legal paradigm it is …
Missing Pieces: A Cognitive Approach To Law, Pierre Schlag
Missing Pieces: A Cognitive Approach To Law, Pierre Schlag
Publications
No abstract provided.
Judicial Conscience And Natural Rights: A Reply To Professor Jaffa, Bruce Ledewitz
Judicial Conscience And Natural Rights: A Reply To Professor Jaffa, Bruce Ledewitz
Seattle University Law Review
This Article replies to Professor Harry V. Jaffa’s article “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?” The Article focuses on the gap the author argues Professor Jaffa left between the consciousness of the Framers and the practice of judicial review today. The author argues that the understanding that Professor Jaffa brings to the intent of the Framers is one that opens up the Constitution to the call of justice, but the author critiques the utility of Professor Jaffa’s work in resolving the contentious constitutional issues of today, including abortion and capital punishment.
Foreword: On Jaffa, Lincoln, Marshall, And Original Intent, Lewis E. Lehrman
Foreword: On Jaffa, Lincoln, Marshall, And Original Intent, Lewis E. Lehrman
Seattle University Law Review
This Foreword introduces the article to follow written by Harry V. Jaffa, scholar of Abraham Lincoln’s political philosophy. The Foreward provides background material necessary to contextualize the ongoing debate surrounding constitutional interpretation emphasizing original intent addressed in Jaffa's article.
Rationalism In Constitutional Law, Robert F. Nagel
Fish V. Zapp: The Case Of The Relatively Autonomous Self, Pierre Schlag
Fish V. Zapp: The Case Of The Relatively Autonomous Self, Pierre Schlag
Publications
No abstract provided.
What Were The "Original Intentions" Of The Framers Of The Constitution Of The United States?, Harry V. Jaffa
What Were The "Original Intentions" Of The Framers Of The Constitution Of The United States?, Harry V. Jaffa
Seattle University Law Review
This Article explains how the doctrine of original intent might be defended as the basis for interpreting the Constitution. The deepest political differences in American history have always been differences concerning the meaning of the Constitution, whether as originally intended, or as amended. Since the Civil War, the debate has often taken the form of a dispute over whether or not the Civil War amendments, notably the fourteenth, have changed the way in which the whole Constitution, and not only the amended parts, is read or interpreted. It is not possible to even discuss how or whether the Civil War …
Seven Questions For Professor Jaffa, George Anastaplo
Seven Questions For Professor Jaffa, George Anastaplo
Seattle University Law Review
This Article poses questions inspired by the four essays collected in Professor Harry V. Jaffa’s article “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?” The Article offers, in addition to fresh reflections upon these questions, three appendices, which bear upon various matters touched upon by Professor Jaffa. These appendices include, “The Founders of Our Founders: Jerusalem, Athens, and the American Constitution,” “The Ambiguity of Justice in Plato’s Republic,” and “Private Rights and Public Law: The Founders’ Perspective.” The Epilogue provides informed observations of a scholar who comments on the differences between Professor …
Professor Harry V. Jaffa Divides The House: A Respectful Protest And A Defense Brief, Robert L. Stone
Professor Harry V. Jaffa Divides The House: A Respectful Protest And A Defense Brief, Robert L. Stone
Seattle University Law Review
This Article replies to Professor’ Jaffa’s article, “What Were the ‘Original Intentions’ of the Framers of the Constitution of the United States?,” and book, The Crisis of the House Divided. The Article argues that Professor Jaffa’s method throughout his indictment of legal scholars has three flaws. First, the Article argues that Professor Jaffa takes statements of sensible political compromises-such as support for judicial restraint, British traditions, and local self-government-and treats them as if they were philosophical statements. Second, the author contends that Professor Jaffa assembles a composite indictment, which in law is appropriately applied only to an indictment against …
Book Review, Pierre Schlag
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.
The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson
The Eighteenth-Century Background Of John Marshall's Constitutional Jurisprudence, William E. Nelson
Michigan Law Review
This analysis of Marshall's constitutional jurisprudence avoids the pitfalls of previous theories. It does not see the Federalist political program as the source of Marshall's constitutional doctrines and thus does not need to explain how Marshall qualified his political principles or how he convinced non-Federalist judges to accept them. Instead, this essay argues that legal, not political, principles underlay Marshall's jurisprudence, but it attempts to understand those principles in a manner consistent with the unavoidable twentieth-century assumption that law is a body of flexible rules responsive to social reality rather than a series of immutable, unambiguous doctrines derived from a …
Wasserstrom: The Judicial Decision- Toward A Theory Of Legal Justification, William B. Harvey
Wasserstrom: The Judicial Decision- Toward A Theory Of Legal Justification, William B. Harvey
Michigan Law Review
A Review of The Judicial Decision- Toward A Theory of Legal Justification By Richard A. Wasserstrom.
Reappraisal Of Federal Question Jurisdiction, G. Merle Bergman
Reappraisal Of Federal Question Jurisdiction, G. Merle Bergman
Michigan Law Review
For some time I have been reading and listening to criticisms directed toward decisions which the Supreme Court has rendered in cases involving federal question jurisdiction. The general 'tenor of this criticism is that these decisions demonstrate a surprising lack of uniformity and conscious purpose. Writers profess to search in vain for sound logic in the Court's opinions. They point up instead the anomaly which is reflected when cases involving a substantial federal issue are tried in state courts, while those in which no real federal issue is involved are nevertheless accepted for trial in the federal courts. This result, …
Sociological Interpretation Of Law, Joseph H. Drake
Sociological Interpretation Of Law, Joseph H. Drake
Articles
It is not the purpose of this paper to essay a definition of either of the formidable words in the title. The object is rather to call attention away from the metaphysical question, what is law? to the sociological question, how may we best attain justice in the administration of law? and, by the aid of some examples from history and comparative law, to justify as legal and constitutional the sociological method of interpretation. That such justification is necessary is evident from the fact that although the dictum of Mr. Justice. HOLMES in the dissenting opinion in Lochner v. New …