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Articles 1 - 27 of 27
Full-Text Articles in Law
Common Sense Case For Common Ground Lawmaking: Three Cheers For Why Conservative Religious Organizations And Believers Should Support The Fairness For All Act, Tanner Bean, Robin Fretwell Wilson
Common Sense Case For Common Ground Lawmaking: Three Cheers For Why Conservative Religious Organizations And Believers Should Support The Fairness For All Act, Tanner Bean, Robin Fretwell Wilson
Journal of Legislation Online Supplement
No abstract provided.
The Unfairness Of The Misnamed “Fairness For All” Act, Ryan T. Anderson, Robert P. George
The Unfairness Of The Misnamed “Fairness For All” Act, Ryan T. Anderson, Robert P. George
Journal of Legislation Online Supplement
No abstract provided.
Justice Scalia, The Nondelegation Doctrine, And Constitutional Argument, William K. Kelley
Justice Scalia, The Nondelegation Doctrine, And Constitutional Argument, William K. Kelley
Journal Articles
Justice Antonin Scalia wrote two major opinions considering the nondelegation doctrine. In Whitman v. American Trucking Associations, he accepted and applied a very broad, indeed virtually unlimited, view of Congress's power to delegate authority to administrative agencies that was consistent with the Court's precedents since the New Deal. In his dissent in Mistretta v. United States, however, he concluded that the constitutional structure formally barred the delegation of naked rulemaking power to an agency that was untethered to other law execution tasks. This essay analyzes Justice Scalia's nondelegation jurisprudence in light of the general jurisprudential commitments he championed throughout his …
Lies And Legality: Evaluating Legislation's Role In Monitoring Campaign Truthfulness, James E. Britton
Lies And Legality: Evaluating Legislation's Role In Monitoring Campaign Truthfulness, James E. Britton
Journal of Legislation Online Supplement
Given the gravity of a campaign to be elected to the highest office of what could conservatively be called a major international power, one might be tempted think that apparent perfidy would be a serious, and perhaps even criminal, charge. After all, these are men and women going out in front of every camera in the country and asking its people to consign their trust to them with their vote; doing so under false pretenses and misrepresentations seems to transcend the boundaries of the merely unsavory into the unconscionable. However, in reality, the inverse of that assertion actually carries the …
Sexual Orientation And Gender Identity: Protected Categories Under Title Vii?, Lowell Ritter
Sexual Orientation And Gender Identity: Protected Categories Under Title Vii?, Lowell Ritter
Journal of Legislation Online Supplement
Plaintiffs and their attorneys have an increasingly viable argument that Title VII’s definition of “sex” includes sexual orientation and gender identity, expanding employers’ potential liability. This is based in part on the Equal Employment Opportunity Commission’s (EEOC) firm position that both sexual orientation and gender identity are protected under the statute.
Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski
Reading Statutes In The Common Law Tradition, Jeffrey A. Pojanowski
Journal Articles
There is wide agreement in American law and scholarship about the role the common law tradition plays in statutory interpretation. Jurists and scholars of various stripes concur that the common law points away from formalist interpretive approaches like textualism and toward a more creative, independent role for courts. They simply differ over whether the common law tradition is worth preserving. Dynamic and strongly purposive interpreters claim the Anglo-American common law heritage in support of their approach to statutory interpretation, while arguing that formalism is an unjustified break from that tradition. Formalists reply that the common law mindset and methods are …
A Judicial Cure For The Disease Of Overcriminalization, Stephen F. Smith
A Judicial Cure For The Disease Of Overcriminalization, Stephen F. Smith
Journal Articles
The dangers of “overcriminalization” are widely appreciated across the political spectrum, but confusion remains as to its cause. Standard critiques fault legislatures alone. The problem, however, is not simply that too many criminal laws are on the books, but that they are poorly defined in ways that give unwarranted sweep to the criminal law, raising the danger of punishment absent or in excess of moral blameworthiness. Instead of narrowing ambiguous criminal laws to more appropriate bounds, courts frequently expand them, even when this ratchets up the punishment that offenders face, and fail to insist on proof of sufficiently culpable states …
Private Law In The Gaps, Jeffrey A. Pojanowski
Private Law In The Gaps, Jeffrey A. Pojanowski
Journal Articles
Private law subjects like tort, contract, and property are traditionally taken to be at the core of the common law tradition, yet statutes increasingly intersect with these bodies of doctrine. This Article draws on recent work in private law theory and statutory interpretation to consider afresh what courts should do with private law in statutory gaps. In particular, it focuses on statutes touching on tort law, a field at the leading edge of private law theory. This Article's analysis unsettles some conventional wisdom about the intersection of private law and statutes. Many leading tort scholars and jurists embrace a regulatory …
Site-Specific Laws, John Copeland Nagle
Site-Specific Laws, John Copeland Nagle
Journal Articles
Congress often enacts statutes that only apply to a specific place. This essay identifies the instances in which site-specific legislation is appropriate. It recounts the uses of such legislation, the theoretical debate surrounding it, and the circumstances in which it is desirable. Site-specific legislation plays an important role in enabling Congress to prescribe its preferred policy even when agreement on broader legislation. My suggestion, therefore, is that general legislation should remain the default for congressional action, but site-specific legislation is appropriate when (a) there are convincing reasons for adopting special rules for a particular place, (b) there is no agreement …
Strategic Spillovers, Daniel B. Kelly
Strategic Spillovers, Daniel B. Kelly
Journal Articles
The conventional problem with externalities is well known: Parties often generate harm as an unintended byproduct of using their property. This Article examines situations in which parties may generate harm purposely, in order to extract payments in exchange for desisting. Such “strategic spillovers” have received relatively little attention, but the problem is a perennial one. From the “livery stable scam” in Chicago to “pollution entrepreneurs” in China, parties may engage in externality-generating activities they otherwise would not have undertaken, or increase the level of harm given that they are engaging in such activities, to profit through bargaining or subsidies. This …
What Is This "Lobbying" That We Are So Worried About?, Lloyd Hitoshi Mayer
What Is This "Lobbying" That We Are So Worried About?, Lloyd Hitoshi Mayer
Journal Articles
Lobbying is both an essential part of our democratic process and a source of some of our greatest fears about dangers to that process. Yet when Congress, the public, and scholars consider loosening or, as is more often the case, tightening the restrictions on lobbying, they usually assume that everyone knows what activities are in fact lobbying. They therefore overlook the fact that multiple definitions of lobbying currently exist in the various federal laws addressing lobbying. This Article seeks to fill this gap by answering the question of how lobbying should be defined for purposes of the existing federal laws …
Lawmaking By Public Welfare Professionals, Gerald Jogerst, Jeanette Daly, Jeffrey Dawson, Gretchen Schmuch, Margaret F. Brinig
Lawmaking By Public Welfare Professionals, Gerald Jogerst, Jeanette Daly, Jeffrey Dawson, Gretchen Schmuch, Margaret F. Brinig
Journal Articles
When thinking of law-making, one usually thinks of the activities of Congress or state legislatures. Students of law and government may also think of the rule-making activities of federal or state bureaucracies. More recently, some attention has been paid to the lawmaking power known as prosecutorial discretion (the decision of whether or for what crimes to charge a criminal defendant) or judicial discretion in sentencing. However, so far most of this work has been theoretical or, at best, anecdotal. Further, far less attention has been paid to the ubiquitous activities of the bureaucrat who must decide whether or not to …
Shopping For Law In A Coasean Market, G. Marcus Cole
Shopping For Law In A Coasean Market, G. Marcus Cole
Journal Articles
In the twentieth century, two Nobel-Prize winning economists wrote two seemingly unrelated characterizations of the processes constraining human behavior. One, Ronald Coase, wrote a short article entitled The Nature of the Firm,1 in which he reduced all managerial decision-making to a fundamental choice between making the factors of production, or buying them. This article and the idea of the "make or buy" decision for which it has come to be known, have proven to be among the most seminal in the history of financial economics and organizational behavior.
The second economist, Friedrich Hayek, wrote what he thought to be a …
Helping Enact Unjust Laws Without Complicity In Injustice, John M. Finnis
Helping Enact Unjust Laws Without Complicity In Injustice, John M. Finnis
Journal Articles
The form of enactments must be distinguished from their legal meaning (their "juridical effect"), that is, from the propositions of law which those enactments, properly interpreted, make legally valid. This distinction makes it possible, and rationally necessary, to conclude that, in certain contexts, a certain statute which declares or textually implies that some abortions are legally permitted (but others prohibited) is not apermissive law within the meaning of the principle, assumed in this article to be true, that permissive abortion laws are intrinsically unjust and may never be voted for. A permissive statute, in that sense, is one which has …
Is This Appropriate?, Thomas L. Shaffer, Julia B. Meister
Is This Appropriate?, Thomas L. Shaffer, Julia B. Meister
Journal Articles
The word "appropriate" is so wildly overused in American culture that, as with other vacuous words and phrases, a person learns to read right through it. "Appropriate" is verbal tofu. This Essay pauses instead of reading through, particularly to notice the instances in which "appropriate" and its negative counterpart are used to give the appearance of a moral or legal judgment.
"Appropriate," chosen to express a legal judgment, is not only vacuous; it is also irresponsible. It catches the legislator, judge, or administrator in the act of passing the buck, as the President did when he ordered the Justice Department …
Corrections Day, John Copeland Nagle
Corrections Day, John Copeland Nagle
Journal Articles
In July 1995, the House of Representatives established a Corrections Day procedure for fixing statutory mistakes. This article traces the history of the corrections day idea, beginning with suggestions offered by Justices Cardozo and Ginsburg many years apart. The article also recounts the early applications of Correction Day by the House. This article describes the problem of statutory mistakes: what they are, and who makes them. It explains that statutory mistakes do exist, regardless of how one defines mistake. Congress, agencies, and the courts all make mistakes, though the responsibility for them ultimately resides with Congress, the author of the …
Shaping Today's Forfeiture Law: A Conversation With Senator Mcclellan, G. Robert Blakey
Shaping Today's Forfeiture Law: A Conversation With Senator Mcclellan, G. Robert Blakey
Journal Articles
In any society, the government's ability to interfere with life, liberty or property is always open for full discussion. In this conversation, Professor Blakey discusses property in the context of organized and white-collar crime, in addition to criminal forfeiture, and frames his discussion around his work with Senator John McClellan on drafting the Organized Crime Control Act.
Banning Broadcasting – A Transatlantic Perspective, Geoffrey Bennett, Russel L. Weaver
Banning Broadcasting – A Transatlantic Perspective, Geoffrey Bennett, Russel L. Weaver
Journal Articles
The British Government's decision to prohibit radio and television networks from airing interviews or statements by members of certain Northern Ireland organizations, or by allies and sympathizers of such organizations (the Broadcasting Ban or Ban) is analyzed in context. From an analysis of the Ban, some conclusions are drawn about the nature of judicial review.
Corrections: A Tale Of Two Bills, Tex Dutile
Corrections: A Tale Of Two Bills, Tex Dutile
Journal Articles
This response critiques two bills regarding federal sentencing reform recently debated in Congress, the Sentencing Act of 1983 and the Sentencing Improvement Act. The Author explains the features of the two bills and its benefits but ultimately argues that despite its ability to provide needed reform, it will not correct the archaic, inhumane corrections system that would still remain. He proposes that, in addition to sentencing reform, the corrections system needs to be reformed and calls for newly funded programs to help rehabilitate criminals.
Comments On Powell V. Mccormick, Charles E. Rice
Comments On Powell V. Mccormick, Charles E. Rice
Journal Articles
Powell v. McCormack is an unfortunate decision, principally because the Supreme Court should never have exercised its jurisdiction over the case. The ruling, however, is chiefly open to criticism, not because it is demonstrably contrary to established rules of law, but because it runs counter to those less clearly articulated, and essentially precatory, admonitions of judicial restraint which are implicit in the separation of governmental powers. The crucial point is not the jurisdiction of the subject matter, the Speech or Debate Clause, the issue of mootness raised by Justice Stewart in dissent or the substantive merits of Adam Clayton Powell's …
Introduction, Joseph O'Meara
Introduction, Joseph O'Meara
Journal Articles
A symposium was held on February 29, 1964, devoted to the constitutional amendments proposed by the Council of State Governments. Very briefly these amendments would (1) vest power to amend the Constitution in State legislatures; (2) set up a "Court of the Union," composed of the chief justice of the supreme court of each of the 50 states, which would have authority to review "any judgment of the Supreme Court relating to the rights reserved to the states or to the people by this Constitution"; (3) take from the federal courts all jurisdiction over the apportionment of representation in State …
Congressional Committee Reports: Their Role And History, Thomas F. Broden
Congressional Committee Reports: Their Role And History, Thomas F. Broden
Journal Articles
Most lawyers have an extremely limited understanding of the function of a congressional committee report. In general, lawyers think of such reports as aids to the interpretation of statutes on the books and much has been written about this role of the committee report. This role is considered by many as the committee report's primary, if not its only, function. Nothing could be further from the truth. It is the purpose of this article to explain its other, more important roles, those in the legislative process and to examine the historical development of the use of written committee reports in …
The Advent Of The Administrative Process And Its Future, Thomas Frank Konop
The Advent Of The Administrative Process And Its Future, Thomas Frank Konop
Journal Articles
Every government exercises three governmental powers E that are necessary for its existence. They are Taxation, Police Power, and the Power of Eminent Domain. Every government, however crude, or whatever we may call it, must have the power first to make the law, which is called the legislative power; second, it must have the power to declare what the law is, which is the judicial power; and third, it must have the power to enforce the law and this is called the executive power.
In the very early governments such as the government of the clan or tribe, these three …
Liberty And The Police Power, Clarence Emmett Manion
Liberty And The Police Power, Clarence Emmett Manion
Journal Articles
The American citizen now has practically no rights of person or property that neither Congress nor the State legislature may not impair by legislation. The adoption of the Articles of Confederation and the Federal Constitution served merely to transfer to the Federal government certain powers formerly exercised by the individual States. When all individuals were protected in the exercise of their respective rights it was never supposed that the rights of the individual were to be protected or approached through the avenues of legislation dictated by majority opinions as to what is now and again for the "general good". The …
Congress And The Supreme Court (Continued), Thomas Frank Konop
Congress And The Supreme Court (Continued), Thomas Frank Konop
Journal Articles
In 1924, Plank Five of the Platform of the Independent candidate for President proposed a constitutional amendment that would enable Congress to override judicial review by reenacting a statute. Such an amendment would, of course, run in stark contrast to Chief Justice Marshall’s opinion in Marbury v. Madison. This paper explores nature of this proposed amendment and analyzes the implications of overturning the foundation of judicial power in our tripartite system of government. In sum, the author suggests that judicial review serves as an excellent check on Congress and the temporary passions of the public itself.
Congress And The Supreme Court, Thomas Frank Konop
Congress And The Supreme Court, Thomas Frank Konop
Journal Articles
In 1924, Plank Five of the Platform of the Independent candidate for President proposed a constitutional amendment that would enable Congress to override judicial review by reenacting a statute. Such an amendment would, of course, run in stark contrast to Chief Justice Marshall’s opinion in Marbury v. Madison. This paper explores nature of this proposed amendment and analyzes the implications of overturning the foundation of judicial power in our tripartite system of government. In sum, the author suggests that judicial review serves as an excellent check on Congress and the temporary passions of the public itself.
Constitutional Law - War Powers Of Congress (Validity Of Conscription Act), Francis Joseph Vurpillat
Constitutional Law - War Powers Of Congress (Validity Of Conscription Act), Francis Joseph Vurpillat
Journal Articles
This paper was read before The Round Table of South Bend, Indiana, and before the classes in constitutional law prior to the rendition of the decision by the United States Supreme Court, sustaining the Conscription Act. The paper is here presented in its original form, by request, on account of its controversial character and legal-brief style, the subject-matter of constitutional law and war powers being ever new to students of the law.