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Comment On Professor Van Alstyne's Paper, Henry P. Monaghan
Comment On Professor Van Alstyne's Paper, Henry P. Monaghan
Faculty Scholarship
My major difficulty with Professor Van Alstyne's paper is its incomplete character. In the end, he makes only two points: first, judges are authorized to apply "this Constitution," not to do justice; and second, judges should not lie about what they are doing. The danger is that after a while the first point sounds somewhat empty, while the actual content of the second point seems entirely parasitic on the first.
Distinguishing Justifications From Excuses, Kent Greenawalt
Distinguishing Justifications From Excuses, Kent Greenawalt
Faculty Scholarship
Ann swings her arm and injures Ben. She faces moral condemnation and legal liability unless she can offer an explanation that absolves her of full blame. She might make a claim of justification that, despite initial appearances, her action was desirable or proper, or she might make a claim of excuse that she does not bear full responsibility for injuring Ben. If Ann is fully justified, she will not be subject to blame or to classification as a weak or defective person. If Ann is excused, she may be regarded as wholly or partly free of blame, but she will …
Wrong Questions Get Wrong Answers: An Analysis Of Professor Carter’S Approach To Judicial Review, Erwin Chemerinsky
Wrong Questions Get Wrong Answers: An Analysis Of Professor Carter’S Approach To Judicial Review, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
Economics Of Public Use, Thomas W. Merrill
Economics Of Public Use, Thomas W. Merrill
Faculty Scholarship
The fifth amendment to the United States Constitution, as well as most state constitutions, provides that private property shall not be taken "for public use" unless just compensation is paid. American courts have long construed this to mean that some showing of "publicness" is a condition precedent to a legitimate exercise of the power of eminent domain. Thus, when a proposed condemnation of property lacks the appropriate public quality, the taking is deemed to be unconstitutional and can be enjoined. In practice, however, most observers today think the public use limitation is a dead letter. Three recent decisions, upholding takings …