Law Commons^™

Private Property, Development And Freedom, Steven J. Eagle

George Mason University School of Law Working Papers Series

The author asserts that adherence to the rule of law, including property law, is a necessary condition to economic development and human freedom. United States governmental agencies and private institutes have attempted to convey this message to Russia, other states of the former Soviet Union, and former Soviet satellite states, with some success. Finally, and unfortunately, the United States has veered away from the very adherence to the rule of law respecting property which it espouses abroad.

Crops, Guns & Commerce: A Game Theoretical Critique Of Gonzales V. Raich, Maxwell L. Stearns

George Mason University School of Law Working Papers Series

In Gonzales v. Raich, the Supreme Court sustained an application of the Controlled Substances Act (“CSA”), banning all private use of marijuana, as applied to two women who had cultivated or otherwise acquired marijuana for the treatment of severe pain pursuant to the California Compassionate Use Act. Writing for the majority, Justice Stevens placed Raich at the intersection of two landmark Commerce Clause precedents: Wickard v. Filburn, the notorious 1942 decision, which upheld a penalty under the Agriculture Adjustment Act of 1938 applied to a local farmer who violated his wheat quota but who had used the modest excess portion …

The Reasonableness Of Probable Cause, Craig S. Lerner

George Mason University School of Law Working Papers Series

Probable cause is generally cast in judicial opinions and the scholarly literature as a fixed probability of criminal activity. In the weeks before the September 11 attacks, FBI headquarters, applying such an unbending standard, rejected a warrant application to search Zacarias Moussaoui’s laptop computer. This article, which begins with an analysis of the Moussaoui episode, argues that the probable cause standard should be calibrated to the gravity of the investigated offense and the intrusiveness of a proposed search. Tracing the evolution of probable cause from the common law through its American development, the article argues that the Supreme Court’s current …

Expressive Association After Dale, David E. Bernstein

George Mason University School of Law Working Papers Series

The right to join with other people to promote a particular outlook, known as the right of expressive association, is a necessary adjunct to the right of freedom of speech, which is protected by the First Amendment of the United States Constitution. In Boy Scouts of America v. Dale, the United States Supreme Court found that the Boy Scouts of America had a First Amendment expressive association right to exclude a homosexual adult volunteer. Dale is likely to prove to be one of the most important First Amendment cases of recent years, because the Court enforced a broad right of …

Bolling, Equal Protection, Due Process, And Lochnerphobia, David E. Bernstein

George Mason University School of Law Working Papers Series

In Brown v. Board of Education, the United States Supreme Court invalidated state and local school segregation laws as a violation of the Fourteenth Amendment's Equal Protection Clause. That same day, in Bolling v. Sharpe, the Court held unconstitutional de jure segregation in Washington, D.C.'s public schools under the Fifth Amendment's Due Process Clause. Fifty years after it was decided, Bolling remains one of the Warren Court's most controversial decisions.

The controversy reflects the widespread belief that the outcome in Bolling reflected the Justices' political preferences and was not a sound interpretation of the Due Process Clause. The Bolling Court …

Fig Leaf Federalism And Tenth Amendment Exceptionalism, Nelson Lund

George Mason University School of Law Working Papers Series

The Supreme Court’s jurisprudence of federalism is at best undergoing an unfinished transformation, and is at worst just troubled and unsatisfying. In a little-noticed dissent in Tennessee v. Lane, Justice Scalia proposed an approach that could be generalized well beyond the specific position that he took in that case. Thus generalized, this approach may be understood as an elaboration of a proposal made by Justice O’Connor in her dissenting opinion twenty years ago in Garcia v. San Antonio Metro. Transit Auth. If adopted by the Court, this synthesis of the O’Connor and Scalia suggestions could work a real transformation in …

Overcoming Poletown: County Of Wayne V. Hathcock, Economic Development Takings, And The Future Of Public Use, Ilya Somin

George Mason University School of Law Working Papers Series

County of Wayne v. Hathcock is an important step forward in public use takings law. The Michigan Supreme Court was right to overturn its notorious 1981 Poletown decision and forbid condemnations that transfer property to private parties solely on the grounds that the new owners will contribute to “economic development.” Poletown was the best known and most widely criticized decision justifying a nearly unlimited condemnation power.

As the Poletown case dramatically demonstrates, the economic development rationale is a virtual blank check for eminent domain abuse for the benefit of private parties. Poletown upheld a condemnation as a result of which …

Judicial Power & Civil Rights Reconsidered, David E. Bernstein, Ilya Somin

George Mason University School of Law Working Papers Series

Michael Klarman's "From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality" is an important contribution to the scholarly literature on both the history of the civil rights struggle and judicial power more generally. Klarman argues that for much of the twentieth century, the Supreme Court was very reluctant to rule in favor of African American civil rights claimants, and had little impact when it did.

Klarman is right to reject traditional accounts that greatly exaggerated the Supreme Court's willingness and ability to protect minorities. However, he overstates his case. The Court's views on the …

A Culturally Correct Proposal To Privatize The British Columbia Salmon Fishery, D. Bruce Johnsen

George Mason University School of Law Working Papers Series

Canada now faces two looming policy crises that have come to a head in British Columbia. The first is long-term depletion of the Pacific salmon fishery by mobile commercial ocean fishermen racing to intercept salmon under the rule of capture. The second results from Canadian Supreme Court case law recognizing and affirming “the existing aboriginal and treaty rights of the aboriginal peoples of Canada” under Section 35(1) of the Constitution Act, 1982. This essay shows that the economics of property rights provides a joint solution to these crises that would promote the Canadian commonwealth by way of a privatization auction …

Wine Wars: The 21st Amendment And Discriminatory Bans To Direct Shipment Of Wine , Todd J. Zywicki

George Mason University School of Law Working Papers Series

This essay is actually a series of posts from the Volokh Conspiracy weblog (www.volokh.com) that discusses the policy and constitutional issues surrounding a question that the Supreme Court will hear this term, whether discriminatory barriers to the interstate direct shipment of wine are constitutional. Because of the timeliness of the issue, the essay is presented in this unusual and informal format so as to be available to the public more rapidly than through the traditional law review format. This essay” reviews the historical evidence and ratification history of the 21st Amendment, and concludes that the answer is unambiguously no.

The …

The Constitution In Two Dimensions: A Transaction Cost Analysis Of Constitutional Remedies. , Eugene Kontorovich

George Mason University School of Law Working Papers Series

This Article reveals the underappreciated role of liability rules in constitutional law. Conventional constitutional theory insists that constitutional entitlements require, by their nature, property rule protection. That is, they can only be taken with the owner's consent; nonconsensual takings can be enjoined. This Article shows that many constitutional values are in fact protected by liability rules, which allow for forced transfers followed by payment of compensation. Substantive entitlements form one dimension of constitutional law. The various ways in which they are protected against transfers form the second dimension. The full picture of constitutional law only emerges from looking at both. …