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Articles 31 - 60 of 76
Full-Text Articles in Law
A Comment On Text, Time And Audience Understanding In Constitutional Law, Michael Dorf
A Comment On Text, Time And Audience Understanding In Constitutional Law, Michael Dorf
Michael C. Dorf
No abstract provided.
The Detention And Trial Of Enemy Combatants: A Drama In Three Branches, Michael C. Dorf
The Detention And Trial Of Enemy Combatants: A Drama In Three Branches, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Levels Of Generality In The Definition Of Rights, Laurence Tribe, Michael Dorf
Levels Of Generality In The Definition Of Rights, Laurence Tribe, Michael Dorf
Michael C. Dorf
This article focuses on one important aspect of the quest for constitutional meaning: how to determine whether a particular liberty-whether or not expressly enumerated in the Bill of Rights-is a "fundamental" right. Whether under the somewhat tarnished banner of substantive due process or under a different rubric, the designation of a right as fundamental requires that the state offer a compelling justification for limitations of that right. In addition, under the Equal Protection Clause of the Fourteenth Amendment, state-sanctioned inequalities that bear upon the exercise of a fundamental right will be upheld only if they serve a compelling governmental interest. …
Can Process Theory Constrain Courts?, Michael C. Dorf, Samuel Issacharoff
Can Process Theory Constrain Courts?, Michael C. Dorf, Samuel Issacharoff
Michael C. Dorf
Politics is the most difficult domain for constitutional law. As practiced in the United States, the aim of constitutionalism is both to provide a foundation for democratic governance and a limitation on the scope of such politics. The Constitution is supposed to enable democratic politics and establish its outer bounds. Yet the original Constitution performed this task only inferentially, leaving most of the details to either subsequent amendments or, more centrally, to judicial interpretation. This in turn leads to a fundamental question: what are the bounds of judicial intervention into the political arena? Although this is an old question, it …
A Partial Defense Of An Anti-Discrimination Principle, Michael C. Dorf
A Partial Defense Of An Anti-Discrimination Principle, Michael C. Dorf
Michael C. Dorf
Over a quarter century ago, Professor Fiss proposed that the constitutional principle of equal protection should be interpreted to prohibit laws or official practices that aggravate or perpetuate the subordination of specially disadvantaged groups. Fiss thought that the anti-subordination principle could more readily justify results he believed normatively attractive than could the rival, anti-discrimination principle. In particular, anti-subordination would enable the courts to invalidate facially neutral laws that have the effect of disadvantaging a subordinate group and also enable them to uphold facially race-based laws aimed at ameliorating the condition of a subordinate group. Since Fiss’s landmark article appeared, Supreme …
Recipe For Trouble: Some Thoughts On Meaning, Translation And Normative Theory, Michael C. Dorf
Recipe For Trouble: Some Thoughts On Meaning, Translation And Normative Theory, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Be Careful What You Wish For, Michael C. Dorf
Does Heller Protect A Right To Carry Guns Outside The Home?, Michael C. Dorf
Does Heller Protect A Right To Carry Guns Outside The Home?, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa Mcelroy, Michael Dorf
Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa Mcelroy, Michael Dorf
Michael C. Dorf
In the fall of 2010, Senator Patrick Leahy introduced a bill that would have overridden a New Deal-era federal statute forbidding retired Justices from serving by designation on the Supreme Court of the United States. The Leahy bill would have authorized the Court to recall willing retired Justices to substitute for recused Justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including whether the possibility of 4-4 splits justifies the substitution of a retired Justice for an active one; whether permitting retired Justices to substitute for recused Justices would …
Fallback Law, Michael C. Dorf
Fallback Law, Michael C. Dorf
Michael C. Dorf
Legislatures sometimes address the risk that a court will declare all or part of a law unconstitutional by including "fallback" provisions that take effect on condition of such total or partial invalidation. The most common kind of fallback provision is a severability clause, which effectively creates a fallback of the original law minus its invalid provisions or applications. However, fallback law can and sometimes does take the express form of substitute provisions. Fallback law can raise a surprisingly large number of constitutional and policy questions. A fallback provision itself must be constitutional, but how to discern the constitutionality of the …
The Orwellian Military Commissions Act Of 2006, Michael C. Dorf
The Orwellian Military Commissions Act Of 2006, Michael C. Dorf
Michael C. Dorf
In three decisions in 2004 and 2006, the Supreme Court of the United States rejected the sweeping claims by President Bush that his role as Commander in Chief entitled him to detain persons indefinitely and, if he chose, to subject them to war crimes trials before military commissions that did not have all of the procedural protections of courts martial. The Court's rulings, however, left open the possibility that, notwithstanding the treaty obligations of the United States under the Geneva Conventions, Congress could authorize the President to take the steps that he could not take unilaterally. In the Military Commissions …
Nullifying The Debt Ceiling Threat Once And For All: Why The President Should Embrace The Least Unconstitutional Option, Neil H. Buchanan, Michael C. Dorf
Nullifying The Debt Ceiling Threat Once And For All: Why The President Should Embrace The Least Unconstitutional Option, Neil H. Buchanan, Michael C. Dorf
Michael C. Dorf
In August 2011, Congress and the President narrowly averted economic and political catastrophe, agreeing at the last possible moment to authorize a series of increases in the national debt ceiling. This respite, unfortunately, was merely temporary. The amounts of the increases in the debt ceiling that Congress authorized in 2011 were only sufficient to accommodate the additional borrowing that would be necessary through the end of 2012. In an economy that continued to show chronic weakness -- weakness that continues to this day -- the federal government would predictably continue to collect lower-than-normal tax revenues and to make higher-than-normal expenditures, …
An Institutional Approach To Legal Indeterminacy, Michael C. Dorf
An Institutional Approach To Legal Indeterminacy, Michael C. Dorf
Michael C. Dorf
For over a generation, academic jurisprudence and constitutional theory have attempted to reconcile, on the one hand, the rule of law and the Constitution's fundamentality with, on the other hand, the fact that legal and constitutional rules frequently do not produce determinate answers to concrete controversies. The approach of radical democrats who would abandon judicial review is unacceptable to all those who believe that some judicially enforceable limits on politics are needed to prevent majoritarian tyranny. At the same time, however, constitutional theories that attempt to justify judicial review have limited utility; at best they strike a compromise between the …
How To Choose The Least Unconstitutional Option: Lessons For The President (And Others) From The 2011 Debt Ceiling Standoff, Neil H. Buchanan, Michael C. Dorf
How To Choose The Least Unconstitutional Option: Lessons For The President (And Others) From The 2011 Debt Ceiling Standoff, Neil H. Buchanan, Michael C. Dorf
Michael C. Dorf
The current successor to a federal statute first enacted in 1917, and widely known as the “debt ceiling,” limits the face value of money that the United States may borrow. Congress has repeatedly raised the debt ceiling to authorize borrowing to fill the gap between revenue and spending, but in the summer of 2011, a political standoff nearly left the government unable to borrow funds to meet obligations that Congress had affirmed earlier that very year. Some commentators urged President Obama to ignore the debt ceiling and issue new bonds, in order to comply with Section 4 of the Fourteenth …
Three Vital Issues: Incorporation Of The Second Amendment, Federal Government Power, And Separation Of Powers – October 2009 Term, Michael C. Dorf, Erwin Chemerinsky
Three Vital Issues: Incorporation Of The Second Amendment, Federal Government Power, And Separation Of Powers – October 2009 Term, Michael C. Dorf, Erwin Chemerinsky
Michael C. Dorf
No abstract provided.
Problem-Solving Courts: From Innovation To Institutionalization, Michael C. Dorf, Jeffrey A. Fagan
Problem-Solving Courts: From Innovation To Institutionalization, Michael C. Dorf, Jeffrey A. Fagan
Michael C. Dorf
No abstract provided.
Constitutional Existence Conditions And Judicial Review, Michael Dorf, Matthew Adler
Constitutional Existence Conditions And Judicial Review, Michael Dorf, Matthew Adler
Michael C. Dorf
Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision …
Identity Politics And The Second Amendment, Michael C. Dorf
Identity Politics And The Second Amendment, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Integrating Normative And Descriptive Constitutional Theory: The Case Of Original Meaning, Michael C. Dorf
Integrating Normative And Descriptive Constitutional Theory: The Case Of Original Meaning, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Drug Treatment Courts And Emergent Experimentalist Government, Michael C. Dorf, Charles Frederick Sabel
Drug Treatment Courts And Emergent Experimentalist Government, Michael C. Dorf, Charles Frederick Sabel
Michael C. Dorf
Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and pooling exemplifies …
The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf
The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Frankenstein's Monster Or Spandrel? The Vices And Virtues Of Legal Retrofitting (Program), Michael C. Dorf
Frankenstein's Monster Or Spandrel? The Vices And Virtues Of Legal Retrofitting (Program), Michael C. Dorf
Michael C. Dorf
No abstract provided.
No Federalists Here: Anti-Federalism And Nationalism On The Rehnquist Court, Michael C. Dorf
No Federalists Here: Anti-Federalism And Nationalism On The Rehnquist Court, Michael C. Dorf
Michael C. Dorf
No abstract provided.
The Aspirational Constitution, Michael C. Dorf
Bargaining In The Shadow Of The Debt Ceiling: When Negotiating Over Spending And Tax Laws, Congress And The President Should Consider The Debt Ceiling A Dead Letter, Neil H. Buchanan, Michael C. Dorf
Bargaining In The Shadow Of The Debt Ceiling: When Negotiating Over Spending And Tax Laws, Congress And The President Should Consider The Debt Ceiling A Dead Letter, Neil H. Buchanan, Michael C. Dorf
Michael C. Dorf
If the debt ceiling is inconsistent with existing spending and taxing laws, what must the President do? In earlier work, we argued that when Congress creates a “trilemma” — making it impossible for the President to spend as much as Congress has ordered, to tax only as much as Congress has ordered, and to borrow no more than Congress has permitted — the Constitution requires the President to choose the least unconstitutional path. In particular, he must honor Congress’s decisions and priorities regarding spending and taxing, and he must issue enough debt to do so. Here, we extend the analysis …
In Praise Of Justice Blackmun: (Corrected) Typos And All, Michael C. Dorf
In Praise Of Justice Blackmun: (Corrected) Typos And All, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Legal Indeterminacy And Institutional Design, Michael C. Dorf
Legal Indeterminacy And Institutional Design, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Foreword: The Most Confusing Branch, Michael C. Dorf
Foreword: The Most Confusing Branch, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Foreward: The Most Confusing Branch, Michael C. Dorf
Foreward: The Most Confusing Branch, Michael C. Dorf
Michael C. Dorf
No abstract provided.
Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa T. Mcelroy, Michael C. Dorf
Coming Off The Bench: Legal And Policy Implications Of Proposals To Allow Retired Justices To Sit By Designation On The Supreme Court, Lisa T. Mcelroy, Michael C. Dorf
Michael C. Dorf
In the fall of 2010, Senator Patrick Leahy introduced a bill that would have overridden a New Deal-era federal statute forbidding retired Justices from serving by designation on the Supreme Court of the United States. The Leahy bill would have authorized the Court to recall willing retired Justices to substitute for recused Justices. This Article uses the Leahy bill as a springboard for considering a number of important constitutional and policy questions, including whether the possibility of 4-4 splits justifies the substitution of a retired Justice for an active one; whether permitting retired Justices to substitute for recused Justices would …