Law Commons^™

Doublethinking Privacy Under The Multi-State Antiterrorism Information Exchange, Thomas V. Burch

Thomas V. Burch

No abstract provided.

The Supreme Court, Foreign Law And Constitutional Governance, Lawrence J. Connell

Lawrence J. Connell

No abstract provided.

Get The Facts, Jack! Empirical Research And The Changing Constitutional Landscape Of Consent Searches, Steven L. Chanenson

Steven L. Chanenson

No abstract provided.

The Agency Law Origins Of The Necessary And Proper Clause, Robert G. Natelson

Robert G. Natelson

This is the first of several writings by the author on the original meaning of the Constitution's Necessary and Proper Clause. It explains part of the legal background of the Clause, identifies it as a recital (not an independent grant of power) of the 18th century doctrine of incidental powers, and explains the content of that doctrine. The article has since been updated and supplemented by the author's signed chapters in Lawson, Miller, Natelson & Seidman, The Origins of the Necessary and Proper Clause (Cambridge Univ. Press, 2010).

The General Welfare Clause And The Public Trust: An Essay In Original Understanding, Robert G. Natelson

Robert G. Natelson

This article explains the original meaning/understanding of the Constitution's General Welfare Clause, including the scope of the taxing and spending power granted to Congress

The Constitution And The Public Trust, Robert G. Natelson

Robert G. Natelson

The American Founders believed that public officials were bound by fiduciary obligations, and they wrote that view into the Constitution. This article copiously documents their position.

What Are Capital Gain And Capital Loss Anyway, Yoseph M. Edrey Prof.

Yoseph M. Edrey

I will try to offer a more analytical definition for capital gains and losses. Such definition, which relies on the economic process that creates the gain or loss, is based on a distinction between what I call “actual/genuine capital gain” and “disguised capital gain.” Such suggested analysis might change the traditional discussion and enable us to appreciate that the actual (genuine) capital gain component is much smaller than what we are normally accustomed to and, hence, the lock-in and risk-taking problems on the one hand, and the possibilities of “cherry-picking” losses on the other hand, are almost nonexistent. Furthermore, the …

A Key Influence On The Doctrine Of Actual Malice: Justice William Brennan’S Judicial Philosophy At Work In Changing The Law Of Seditious Libel, Carlo A. Pedrioli

Carlo A. Pedrioli

In light of the historical change in the law of seditious libel that New York Times v. Sullivan (1964) prompted and the need for further exploration of the human factors behind the case, this article gives attention to William Brennan’s judicial philosophy at work in the case. The article defines judicial philosophy as a system of guiding principles upon which a judge calls in the process of legal decision-making. Specifically, the article explains how, through Times v. Sullivan, Brennan’s instrumentalist judicial philosophy had an important influence on changing the course of legal protection for criticism of the government in the …

Introduction: Ancients, Moderns And Guns, Mark A. Graber

Faculty Scholarship

No abstract provided.

Assessing The Constitutionality Of Laws That Are Both Content Based And Content Neutral, Wilson R. Huhn

Wilson R. Huhn

Such a multi-faceted analysis cannot be conflated into two dimensions. Whatever the allure of absolute doctrines, it is just too simple to declare expression "protected" or "unprotected" or to proclaim a regulation "content-based" or "content-neutral." John Paul Stevens (1992)

American legal doctrine evolved from a formalistic categorical approach that dominated legal thinking during the nineteenth century to a realistic balancing approach that developed over the course of the twentieth century. A similar process is now occurring in the constitutional doctrine governing freedom of expression-a process that may culminate in the adoption of what United States Supreme Court Justice John Paul …

A Sheep In Wolf's Clothing: Why The Debate Surrounding Comparative Constitutional Law Is Spectacularly Ordinary, Matthew S. Raalf

Fordham Law Review

No abstract provided.

The Supreme Court And Congress's Power To Enforce Constitutional Rights: An Overlooked Moral Anomaly, Robert J. Kaczorowski

Fordham Law Review

No abstract provided.

The Foggy Road For Evaluating Punitive Damages: Lifting The Haze From The Bmw/State Farm Guideposts, Steven L. Chanenson, John Y. Gotanda

Working Paper Series

In light of increasing punitive damages awards, the United States Supreme Court formulated criteria for evaluating whether a punitive damages award is so unreasonably large that it violates substantive due process. Unfortunately, these "guideposts," which were first erected in BMW v. Gore and applied last term in State Farm v. Campbell, are difficult to use and have resulted in inconsistent decisions. Indeed, Justice Scalia stated that they "mark a road to nowhere." The authors argue that the problems with the guideposts can be fixed by refining the third guidepost, which compares the punitive damages award to the criminal (or civil) …

Gender, Justice And Gender: An Unfinished Debate, Susan Moller Okin

Fordham Law Review

No abstract provided.

Adjusting Rights And Balancing Values, T. M. Scanlon

Fordham Law Review

No abstract provided.

False Campaign Speech And The First Amendment, William P. Marshall

Faculty Publications

No abstract provided.

Jurisdictional Line-Drawing In A Time When So Much Litigation Is "Related To" Bankruptcy: A Practical And Constitutional Solution, Duane Loft

Fordham Law Review

No abstract provided.

Gender, Negotiating Gender And (Free And Equal) Citizenship: The Place Of Associations, Linda C. Mcclain

Fordham Law Review

No abstract provided.

Separation, Neutrality, And Clergy Liability For Sexual Misconduct, William P. Marshall

Faculty Publications

No abstract provided.

The Unitary Executive During The Third Half-Century, 1889-1945, Christopher S. Yoo, Steven G. Calabresi, Laurence D. Nee

All Faculty Scholarship

Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress's authority to employ devices such as special counsels and independent agencies to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitution rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive, in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features …

Better Lucky Than Good, Neal Devins

Faculty Publications

No abstract provided.

Prison Reform Revisited: The Unfinished Agenda, Michael B. Mushlin

Elisabeth Haub School of Law Faculty Publications

Prison Reform Revisited: The Unfinished Agenda, which was held at Pace Law School from October 16-18, 2003, was a remarkable event. At this conference--a summit really--leading academics, attorneys, prison reformers, judges, prison officials and international prison reformers gathered at Pace Law School and the New York State Judicial Center in White Plains, New York to discuss how to advance the cause of prison reform in the U.S. This issue of the Pace Law Review is devoted to the papers presented in connection with that important conference.

The First Amendment, The Public-Private Distinction, And Nongovernmental Suppression Of Wartime Political Debate, Gregory P. Magarian

Scholarship@WashULaw

This article proposes a major expansion in the scope of First Amendment law and offers a fresh way of understanding the public-private distinction. It contends that the Supreme Court should invoke the First Amendment to enjoin nongovernmental behavior that substantially impedes public political debate during times of war and national emergency. As the article explains, the present campaign against international terrorism has seen employers, property owners, and media corporations restrict political discussion more frequently and aggressively than the government has. If political debate is the most important object of First Amendment protection - which the article contends it is - …

Law School Diversity As A Compelling State Interest: Justice O'Connor's Application Of Strict Scrutiny And The Promise Of The U.S. Supreme Court's Ruling In Grutter V. Bollinger, James Johnston

James B Johnston

This article discuuses the landmark Grutter v. Bollinger decision in the the context of its ability to promote diversity both in academia and the workplace.

The Futile Quest For A System Of Judicial “Merit” Selection, Michael R. Dimino

Michael R Dimino

Justice Thomas In Grutter V. Bollinger: Can Passion Play A Role In Judicial Reasoning?, Mary Kate Kearney

Mary Kate Kearney

No abstract provided.

Reading Attitude In The Constitutional Wish, Kirk W. Junker

Kirk W Junker

In his essay "Opponents, Audiences, Constituencies, and Community," Edward W. Said throws down a gage to literary theorists and challenges them to break out of disciplinary ghettos, "to reopen the blocked social processes ceding objective representations (hence power) of the world to a small coterie of experts and their clients, to consider that the audience for literacy is not a closed circle of three thousand professional critics but the community of human beings living in society . . . ."' To the literary critic he admonishes: "When you discuss Keats or Shakespeare or Dickens, you may touch on political subjects, …

Implementing Nj's Anti-Terrorism Laws To Prevent Terrorist Financing: A Statutory Analysis Of The September 11, 2001 Anti-Terrorism Act, James B. Johnston

James B Johnston

The 9/11 hijackers received much of the money they used to implement their plan of murder by funnelling money sent to them by Al Qaeda opertives to banks located in NJ. As a result the NJ legislature signed off on powerful terrorist financing legislation when it passed the September 11, 2001 Anto Terrorism Act. This article provides a step by step analysis of these new statutes and discusses other state legislation that can allow law enforcement to confiscate money linked to terrorism.

Green Laws For Better Health: The Past That Was And The Future That Maybe - Reflections From The Indian Experience, Shubhankar Dam

Shubhankar Dam

No abstract provided.

Strikes Through The Prism Of Duties: Is There A Fundamental Duty To Strike Under The Indian Constitution?, Shubhankar Dam

Shubhankar Dam

Much of the debates on the legality of strikes under the Indian Constitution has been on the issue of a right to strike. This paper argues that the constitutionality of strikes may be analysed through the prism of duties, i.e. fundamental duties under Part IVA of the Constitution. Strikes were an integral part of the ideals that inspired India's national struggle against imperialism. And, in this sense, when article 51A exhorts Indians to cherish and follow the noble ideals that inspired our freedom struggle, it includes a fundamental duty to strike. Invoking the philosophy of Mahatma Gandhi, the paper argues …