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Articles 1 - 30 of 181
Full-Text Articles in Law
Judgement As A Matter Of Law On Punitive Damages, Colleen P. Murphy
Judgement As A Matter Of Law On Punitive Damages, Colleen P. Murphy
Law Faculty Scholarship
No abstract provided.
The Second Amendment: Structure, History, And Constitutional Change, David S. Yassky
The Second Amendment: Structure, History, And Constitutional Change, David S. Yassky
Elisabeth Haub School of Law Faculty Publications
Part I of the Article engages the revisionists squarely on the turf they have staked out: the intent of those who framed and ratified the Second Amendment. Here I credit the revisionists with some important insights. Their research reminds us how greatly the world in which the Second Amendment was adopted differed from our own. This perspective helps us understand how the Founders could have placed the right to bear arms on par with the right to free speech--a decision that baffles many modern Americans. Yet while the revisionists correctly perceive that the right to keep and bear arms was …
Constitutional Change And International Government, Chantal Thomas
Constitutional Change And International Government, Chantal Thomas
Cornell Law Faculty Publications
No abstract provided.
The Constitution Outside The Courts, James E. Fleming
The Constitution Outside The Courts, James E. Fleming
Faculty Scholarship
In this Book Review, Professor Fleming examines Professor Tushnet's arguments against judicial supremacy and in support of making constitutional interpretation less court-centered to pursue a populist constitutional law. The review concedes that Professor Tushnet's arguments that the “thick Constitution”--in particular, its commitments to federalism, states' rights, and separation of powers--is self-enforcing through the political processes are compelling. But it contends that he fails to make the case that the “thin Constitution”--for example, its fundamental guarantees of equality, freedom of expression, and liberty-- should be treated as similarly self-enforcing. Furthermore, Professor Fleming charges that Professor Tushnet does not adequately elaborate how …
The Integrity Of Death: Resolving Dilemmas In Medicine, Larry I. Palmer
The Integrity Of Death: Resolving Dilemmas In Medicine, Larry I. Palmer
Faculty Publications
No abstract provided.
Book Review: We The People: The Fourteenth Amendment And The Supreme Court, S. I. Strong
Book Review: We The People: The Fourteenth Amendment And The Supreme Court, S. I. Strong
Faculty Publications
Never one to shirk a challenge, Michael Perry has taken on the difficult task of investigating whether, as charged by a number of prominent social and legal commentators, "the modern Supreme Court, in the name of the Fourteenth Amendment [to the US Constitution], [has] usurped prerogatives and made choices that properly belong to the electorally accountable representatives of the American people," and if so, to what extent (p. 8). Perry makes no attempt to address every facet of Fourteenth Amendment doctrine, but instead focuses his discussion on some of the most controversial topics: racial segregation, affirmative action, discrimination on the …
Assessing The New Judicial Minimalism, Christopher J. Peters
Assessing The New Judicial Minimalism, Christopher J. Peters
All Faculty Scholarship
In this article, which has been published in slightly revised form at 100 Colum. L. Rev. 1454 (2000), I critique some recently prominent arguments for "judicial minimalism" in constitutional decisionmaking. Current minimalist arguments, I contend, are primarily "policentric," that is, focused on the role the judiciary can play in bolstering the accountability and deliberativeness of the political branches. Drawing in part on a previous article, I offer an alternative approach to minimalism that is "juricentric" - focused on the inherent democratic legitimacy of the adjudicative process and the unique competence of that process to produce decisions about individual rights. I …
The Remarkable Career Of Joe Grano, Robert A. Sedler
The Remarkable Career Of Joe Grano, Robert A. Sedler
Law Faculty Research Publications
No abstract provided.
Caring To Death: Health Care Professionals And Capital Punishment, Cary H. Federman, Dave Holmes
Caring To Death: Health Care Professionals And Capital Punishment, Cary H. Federman, Dave Holmes
Department of Justice Studies Faculty Scholarship and Creative Works
The aim of this article is to describe the role of health care professionals in the capital punishment process. The relationship between the protocol of capital punishment in the United States and the use of health care professionals to carry out that task has been overlooked in the literature on punishment. Yet for some time, the operation of the medical sciences in prison have been `part of a disciplinary strategy' `intrinsic to the development of power relationships'. Many capital punishment statutes require medical personnel to be present at, if not actively involved in, executions. Through analyses of these statutes, show …
Public Service, Ethics, And Constitutional Practice, James E. Moliterno
Public Service, Ethics, And Constitutional Practice, James E. Moliterno
Faculty Publications
No abstract provided.
Angry White Males: The Equal Protection Clause And "Classes Of One", Timothy Zick
Angry White Males: The Equal Protection Clause And "Classes Of One", Timothy Zick
Faculty Publications
No abstract provided.
Where Hannah Arendt Went Wrong, David Abraham
Madison's Hope: Virtue, Self-Interest, And The Design Of Electoral Systems, James A. Gardner
Madison's Hope: Virtue, Self-Interest, And The Design Of Electoral Systems, James A. Gardner
Journal Articles
In recent years, perhaps no institution of American governance has been so thoroughly and consistently excoriated by legal theorists as the familiar American system of winner-take-all elections. The winner-take-all system is said to waste votes, lead to majority monopolization of political power, and cause the under representation and consequent social and economic subordination of political minorities. Some political scientists have attempted to defend winner-take-all systems on the ground that they perform better than PR in maximizing long-term collective and social interests. This article argues, in contrast, that winner-take-all electoral systems rest upon, and can be adequately defended, if at all, …
A Community Of Interest In The Due Process Calculus, Charles H. Koch Jr.
A Community Of Interest In The Due Process Calculus, Charles H. Koch Jr.
Faculty Publications
No abstract provided.
Section 7: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School
Section 7: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Rights And Rules: An Overview, Matthew D. Adler, Michael C. Dorf
Rights And Rules: An Overview, Matthew D. Adler, Michael C. Dorf
Cornell Law Faculty Publications
Prior to recent decades, the United States Supreme Court often invoked the political question doctrine to avoid deciding controversial questions of individual rights. By the 1970s and 1980s, standing limits traced to Article III’s case-or-controversy language had replaced the political question doctrine as the favored justiciability device. Although both political question and standing doctrines remain tools in the Court’s arsenal of threshold decision making,3 in the last decade the Court has turned with increasing frequency to the distinction between facial and as-applied challenges to perform the gatekeeping function. However, although there is a considerable body of scholarship concerning the conventional …
The Heterogeneity Of Rights, Michael C. Dorf
The Heterogeneity Of Rights, Michael C. Dorf
Cornell Law Faculty Publications
What is the implication for the validity of governmental rules of the conclusion that the rule interferes with a constitutional right? This question has implications for two important doctrinal puzzles. The first is the question when, if ever, a litigant has a constitutional right to an exemption from a generally valid rule of law. Many constitutional rights are rule-dependent in the sense that they protect actors against certain kinds of governmental rules rather than shielding acts against governmental interference. This Article denies the claim by scholars and judges that this rule-dependence reflects a deep truth about the nature of constitutional …
Rules And Judicial Review, Emily Sherwin
Rules And Judicial Review, Emily Sherwin
Cornell Law Faculty Publications
Judicial review of statutes on constitutional grounds is affected by a cluster of doctrinal practices that are generally accepted, but not very well explained, by the courts and not entirely consistent with each other. Courts usually judge statutes “as applied” rather than as written; they favor “severance” of valid applications of statutes from invalid or possibly invalid applications when possible; and they interpret statutes in ways that avoid constitutional difficulty. These overlapping practices presumably are intended to preserve legislation, and hence are associated with a modest conception of the role of courts in government. Yet they are not always modest …
Peaches, Speech, And Clarence Thomas: Yes, California, There Is A Justice Who Understands The Ramifications Of Controlling Commercial Speech, Jennifer R. Franklin
Peaches, Speech, And Clarence Thomas: Yes, California, There Is A Justice Who Understands The Ramifications Of Controlling Commercial Speech, Jennifer R. Franklin
Faculty Publications
No abstract provided.
John Marshall, Mcculloch V. Maryland, And The Southern States' Rights Tradition, R. Kent Newmyer
John Marshall, Mcculloch V. Maryland, And The Southern States' Rights Tradition, R. Kent Newmyer
Faculty Articles and Papers
No abstract provided.
Abdication By Another Name: An Ode To Lou Fisher, Neal Devins
Abdication By Another Name: An Ode To Lou Fisher, Neal Devins
Faculty Publications
No abstract provided.
On Casebooks And Canons Or Why Bob Jones University Will Never Be Part Of The Constitutional Law Canon, Neal Devins
On Casebooks And Canons Or Why Bob Jones University Will Never Be Part Of The Constitutional Law Canon, Neal Devins
Faculty Publications
No abstract provided.
Burdening Constitutional Rights: The Supreme Court's License To Prosecutors, Bennett L. Gershman
Burdening Constitutional Rights: The Supreme Court's License To Prosecutors, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
The prosecutorial tactic of burdening a defendant’s exercise of constitutional rights has appeared in a variety of contexts. Prosecutors have asked juries to infer guilt based on a defendant’s decision not to testify, not to call witnesses, to remain silent after being given Miranda warnings, to go to trial, to secure the assistance of counsel, to refuse to consent to a warrantless search, and to testify. In all of these instances, courts have found the prosecutor’s remarks to constitute misconduct.
Christians And The Military, Jeffrey C. Tuomala
Christians And The Military, Jeffrey C. Tuomala
Faculty Publications and Presentations
No abstract provided.
"Available State Remedies" And The Fourteenth Amendment: Comments On Florida Prepaid V. College Savings Bank, Michael L. Wells
"Available State Remedies" And The Fourteenth Amendment: Comments On Florida Prepaid V. College Savings Bank, Michael L. Wells
Scholarly Works
In Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, decided during the Supreme Court's October 1998 Term, the specific point at issue was the scope of Congress's authority under Section 5 of the Fourteenth Amendment to impose liability for damages on state governments. In the Patent Remedy Act, Congress had abrogated the states' sovereign immunity from claims of patent infringement. College Savings Bank argued for the validity of the statute on the grounds that patents are property; that patent infringements are deprivations of property; and that the statute simply and appropriately provides a remedy for deprivations of …
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
Cornell Law Faculty Publications
No abstract provided.
Keeping The Sex In Sex Education: The First Amendment's Religion Clauses And The Sex Education Debate, Gary J. Simson, Erika A. Sussman
Keeping The Sex In Sex Education: The First Amendment's Religion Clauses And The Sex Education Debate, Gary J. Simson, Erika A. Sussman
Cornell Law Faculty Publications
No abstract provided.
Enforcement Of Federal Private Rights Against States After Alden V. Maine: The Importance Of Hutto V. Finney And Compensation Via Civil Contempt Proceedings, Gordon G. Young
Faculty Scholarship
No abstract provided.
Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya
Supreme Court's 1998-1999 Term: Fourth Amendment Decisions, Kathryn R. Urbonya
Faculty Publications
No abstract provided.
Use Of Race In "Stop-And-Frisk": Stereotypical Beliefs Linger, But How Far Can The Police Go?, Bennett L. Gershman
Use Of Race In "Stop-And-Frisk": Stereotypical Beliefs Linger, But How Far Can The Police Go?, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
The power of police to detain persons for a brief period to investigate suspected criminal activity--commonly known as “stop-and-frisk”--has always been one of the most contentious issues in law enforcement. Although there is general consensus that street stops are an important weapon in crime prevention, the belief has always existed that stop-and-frisk tactics are often used indiscriminately and abusively against minority groups.