Law Commons^™

"A Common Fate Of Discrimination": Race-Gender Analogies In Legal And Historical Perspective, Serena Mayeri

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No abstract provided.

What's So Special About American Law?, William Ewald

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No abstract provided.

Givings, Abraham Bell, Gideon Parchomovsky

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Givings - government acts that enhance property value - are omnipresent. Givings and takings are mirror images of one another, and of equal practical and theoretical importance, but the Takings Clause of the Fifth Amendment has enabled takings to dominate scholarly attention. This Article makes the first step toward rectifying this disparate treatment by laying the foundation for a law of givings. The Article identifies three prototype givings: physical givings, regulatory givings and derivative givings. The Article shows that givings are a formative force in property, and that a comprehensive takings jurisprudence cannot be devised without an attendant understanding of …

Raising Arizona: Reflections On Sovereignty And The Nature Of The Plaintiff In Federal Suits Against States, Catherine T. Struve

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No abstract provided.

The Real Separation In Separation Of Powers Law, Elizabeth Magill

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This Article argues that contemporary separation of powers commentary is misconceived. Despite the disagreement that dominates the commentary, a closer look at that debate reveals a surprise: commentators subscribe to a consensus about separation of powers. Once exposed, however, that consensus turns out to be underdeveloped, confused, and possibly incoherent. This Article, first, identifies the latent consensus about separation of powers, and, second, critically examines the consensus. The Article argues that the present consensus must be abandoned or refashioned in some as-yet-undeveloped way.

Separation of powers commentary is conventionally thought to be dominated by a contest between adherents of "formalist" …

Rethinking Welfare Rights: Reciprocity Norms, Reactive Attitudes, And The Political Economy Of Welfare Reform, Amy L. Wax

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No abstract provided.

Positivism And The Notion Of An Offense, Claire Oakes Finkelstein

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While the United States Supreme Court has developed an elaborate constitutional jurisprudence of criminal procedure, it has articulated few constitutional doctrines of the substantive criminal law. The asymmetry between substance and procedure seems natural given the demise of Lochner and the minimalist stance towards due process outside the area of fundamental rights. This Article, however, argues that the "positivistic" approach to defining criminal offenses stands in some tension with other basic principles, both constitutional and moral. In particular, two important constitutional guarantees depend on the notion of an offense: the presumption of innocence and the ban on double jeopardy. Under …

The Hazards Of Legal Fine Tuning: Confronting The Free Will Problem In Election Law Scholarship, Michael A. Fitts

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No abstract provided.

The Myth Of Choice Of Law: Rethinking Conflicts, Kermit Roosevelt Iii

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Choice of law is a mess. That much has become a truism. It is a "dismal swamp," a morass of confusion, a body of doctrine "killed by a realism intended to save it," and now "universally said to be a disaster." One way to demonstrate its tribulations would be to look at the academic dissensus and the hopelessly underdeterminative Restatement (Second) of Conflict of Laws. Another would be to examine the Supreme Court's abdication of the task of articulating constitutional constraints on state choice-of-law rules. This article will do both. At the outset, though, I want to suggest that one …

The Architecture Of Judicial Independence, Stephen B. Burbank

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No abstract provided.

A Little Theory Is A Dangerous Thing: The Myth Of Adjudicative Retroactivity, Kermit Roosevelt Iii

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The article analyzes the question of the retroactive effect of judicial decisions. It surveys the history of retroactivity doctrine to demonstrate that the current approach to retroactivity jurisprudence is a consequence of the Warren Court's adoption of the principle that parties should be governed by the law in effect at the time of their actions. This principle leads to a theoretical framework that suffers from serious difficulties. In particular, it is unable to distinguish between cases presented on direct and collateral review, and consequently unable to reach a satisfactory treatment of habeas petitions based on changes in law. The article …

The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer

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No abstract provided.

The Legalization Of The Presidencey: A Twenty-Five Year Watergate Retrospective, Michael A. Fitts

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No abstract provided.

The Medium Is The Mistake: The Law Of Software For The First Amendment, R. Polk Wagner

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Is computer software ? code written by humans that instructs a computer to perform certain tasks ? protected by the First Amendment? The answer to this question will significantly impact the course of future technological regulation, and will affect the scope of free expression rights in new media. In this note, I attempt to establish a framework for analysis, noting at the outset that the truly important question in this context is the threshold question: what is "speech or . . . the press"? I first describe two general ways that the Supreme Court has addressed the threshold question. One …

Filters And The First Amendment, R. Polk Wagner

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Internet content filters -- promising a technological solution to the uniquely social problem of widespread availability of adults-only content on the Internet -- appear to shift the debate over control of "cyberporn" from the legislative to the technical. Yet a growing number of commentators are expressing serious reservations about the free speech implications of filters. In this Article, I note that the ever-changing relationship between technology, network economics, and legal doctrine in the new economic and ideological marketplace of Cyberspace will fundamentally impact any constitutional analysis. I argue that the existing literature's analytic reliance on expansive concepts of state action …

Foreword: Race, Vagueness, And The Social Meaning Of Order-Maintenance Policing, Dorothy E. Roberts

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No abstract provided.

The Second Time As Tragedy: The Assisted Suicide Cases And The Heritage Of Roe V. Wade, Seth F. Kreimer

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No abstract provided.

The Costs Of Agencies: Waters V. Churchill And The First Amendment In The Administrative State, Kermit Roosevelt Iii

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106 Yale L. J. 1233 (1997)

Exploring The Dark Matter Of Judicial Review: A Constitutional Census Of The 1990s, Seth F. Kreimer

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Most debate about the power of judicial review proceeds as if courts primarily invoke the Constitution against the considered judgment of elected legislatures; most constitutional commentary focuses on confrontations between the United States Supreme Court and state or federal legislatures. In fact, the federal courts most often enforce constitutional norms against administrative agencies and street-level bureaucrats, and the norms are enforced not by the Supreme Court but by the federal trial courts. In this Article, Professor Kreimer surveys this "dark matter" of our constitutional universe.

The Article compares the 292 cases involving constitutional claims decided by the Supreme Court during …

From Black And White To High Definition Equal Protection, Seth F. Kreimer

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No abstract provided.

Compelled Affirmations, Free Speech, And The U.S. Military's Don't Ask, Don't Tell Policy, Tobias Barrington Wolff

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No abstract provided.

The Unitary Executive During The First Half-Century, Steven G. Calabresi, Christopher S. Yoo

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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 …

Liberalized Immigration As Free Trade: Economic Welfare And The Optimal Immigration Policy, Howard F. Chang

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No abstract provided.

The Meaning Of Blacks' Fidelity To The Constitution, Dorothy E. Roberts

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No abstract provided.

Principled Silence, Tobias Barrington Wolff

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No abstract provided.

Territoriality And Moral Dissensus: Thoughts On Abortion, Slavery, Gay Marriage And Family Values, Seth F. Kreimer

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No abstract provided.

Judicial Restraint And Constitutional Federalism: The Supreme Court's Lopez And Seminole Tribe Decisions, Herbert J. Hovenkamp

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The Senate hearings considering Elena Kagan’s Supreme Court nomination called new attention to the Constitution's Commerce Clause. That concern might seem odd, given the typical lack of strong grassroots concern over the commerce power. But the 2010 election year is different. One characteristic of the largely conservative "Tea Party" movement is a wish to roll back Constitutional time to the regime envisioned by its founders. As the New York Times reported in early July, 2010, members of the movement believe that the “commerce clause in particular has been pushed beyond recognition.” Members of the movement imagine that Congressional power over …

The Only Good Poor Woman: Unconstitutional Conditions And Welfare, Dorothy E. Roberts

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No abstract provided.

Foreword: Pennsylvania Legal Services At Risk, Louis S. Rulli

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No abstract provided.

The Proposed Equal Protection Fix For Abortion Law: Reflections On Citizenship, Gender, And The Constitution, Anita L. Allen

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No abstract provided.