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Articles 1 - 21 of 21
Full-Text Articles in Law
The First 'Establishment' Clause: Article Vii And The Post-Constitutional Confederation, Gary S. Lawson, Guy I. Seidman
The First 'Establishment' Clause: Article Vii And The Post-Constitutional Confederation, Gary S. Lawson, Guy I. Seidman
Faculty Scholarship
It is a great pleasure for academics to realize that fellow scholars sometimes read their work and take it seriously. We are genuinely flattered that Vasan Kesavan has chosen to comment on our article, When Did the Constitution Become Law?,1 and has done so with the intellectual rigor and generosity of spirit that characterizes his prodigious scholarship. 2 We are grateful to Mr. Kesavan for engaging us and grateful to the Notre Dame Law Review for accommodating the dialogue.
Campaign Finance Disclosure And Section 527 Of The Code: A Look At The District Court's Opinion In National Federation Of Republican Assemblies, Donald B. Tobin
Campaign Finance Disclosure And Section 527 Of The Code: A Look At The District Court's Opinion In National Federation Of Republican Assemblies, Donald B. Tobin
Faculty Scholarship
This report examines the decision of the U.S. District Court for the Southern District of Alabama in National Federation of Republican Assemblies v. United States, which dealt with section 527 political organizations.
Self-Definition In The Constitution Of Faith And Family, David D. Meyer
Self-Definition In The Constitution Of Faith And Family, David D. Meyer
Faculty Scholarship
No abstract provided.
Splitting The Atom Of Marshall's Wisdom, Susan Herman
Splitting The Atom Of Marshall's Wisdom, Susan Herman
Faculty Scholarship
No abstract provided.
The Significance Of Border Crossings: Lopez, Morrison And The Fate Of Congressional Power To Regulate Goods, And Transactions Connected With Them, Based On Prior Passage Through Interstate Commerce, Gordon G. Young
Faculty Scholarship
No abstract provided.
Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin R. Scordato, Paula A. Monopoli
Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin R. Scordato, Paula A. Monopoli
Faculty Scholarship
No abstract provided.
Antebellum Perspectives On Free Speech, Mark A. Graber
Antebellum Perspectives On Free Speech, Mark A. Graber
Faculty Scholarship
Book review of Free Speech: "The People's Darling Privilege": Struggles for Freedom of Expression in American History by Michael Kent Curtis (Duke University Press, 2000).
Lurking In The Shadows Of Judicial Process: Special Masters In The Supreme Court's Original Jurisdiction Cases, Anne-Marie Carstens
Lurking In The Shadows Of Judicial Process: Special Masters In The Supreme Court's Original Jurisdiction Cases, Anne-Marie Carstens
Faculty Scholarship
No abstract provided.
Youngstown: Pages From The Book Of Disquietude, Philip Chase Bobbitt
Youngstown: Pages From The Book Of Disquietude, Philip Chase Bobbitt
Faculty Scholarship
The Youngstown holding is widely admired. One reads with pride those passages in which the Supreme Court denies to a president with whom they are in considerable political sympathy the power to enlarge executive authority by militarizing the homeland. And yet one wonders, as we confront in the 21st century a lethal foreign enemy who has demonstrated the ability to infiltrate and assault the domestic environment, precisely what restraints ought to govern a presidential response to that enemy.
Incomplete Compensation For Takings, Thomas W. Merrill
Incomplete Compensation For Takings, Thomas W. Merrill
Faculty Scholarship
If a tribunal determines that a state actor has expropriated foreign investment property, or, under Chapter 11 of the North American Free Trade Agreement (NAFTA), that a state actor has adopted a regulation that is "tantamount to" an expropriation of foreign investment property, then that tribunal must determine the amount of compensation owed. International law has developed methods to determine the size of a compensation award when a state formally expropriates property. But the notion, reflected in Chapter 11 of NAFTA, that states may be required to pay compensation to foreign investors for what are, in effect, regulatory takings, is …
Powers Inherent In Sovereignty: Indians, Aliens, Territories, And The Nineteenth Century Origins Of Plenary Power Over Foreign Affairs, Sarah H. Cleveland
Powers Inherent In Sovereignty: Indians, Aliens, Territories, And The Nineteenth Century Origins Of Plenary Power Over Foreign Affairs, Sarah H. Cleveland
Faculty Scholarship
Does the United States have powers inherent in sovereignty? At least since the 1819 decision in McCulloch v. Maryland, conventional wisdom has held that national government is one of limited, enumerated powers and exercises “only the powers granted to it” by the Constitution and those implied powers “necessary and proper” to the exercise of the delegated powers. All powers not delegated to the federal government are reserved to the states and to the people. In the 1936 decision in United States v. Curtiss-Wright Export Corp., however, the Supreme Court asserted that federal authority over foreign relations operated independently …
Bush V. Gore As An Equal Protection Case, Richard Briffault
Bush V. Gore As An Equal Protection Case, Richard Briffault
Faculty Scholarship
In Bush v. Gore, the United States Supreme Court applied the Equal Protection Clause to the mechanics of state election administration. The Court invalidated the manual recount of the so-called undervote – that is, ballots that vote-counting machinery had found contained no indication of a vote for President – which the Florida Supreme Court had ordered to determine the winner of Florida's vote for presidential electors in the 2000 presidential election. The United States Supreme Court reasoned that the principles it had previously articulated in applying the Equal Protection Clause to the vote were violated by the Florida court's …
Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai
Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai
Faculty Scholarship
This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …
Redeeming The Welshed Guarantee: A Scheme For Achieving Justiciability, Ethan J. Leib
Redeeming The Welshed Guarantee: A Scheme For Achieving Justiciability, Ethan J. Leib
Faculty Scholarship
In this article, I suggest that Congress re-pass its progressive legislation under the jurisdictional basis of its Guarantee Clause power. While arguments for justiciability continue to be made, a pragmatic way to achieve it has not been spelled out. Part II will lay out versions of republicanism I hope to see discussed in the context of the Guarantee Clause. Part III will explore republicanism's excessive attention on the courts, recommending the aforementioned approach of Jeremy Waldron. Part IV will briefly suggest how some of the legislation recently curtailed by the Supreme Court might be justified under a theory of legislative, …
Constitutional Pluralism And Democratic Politics: Reflections On The Interpretive Approach Of Baker V. Carr, Guy-Uriel Charles
Constitutional Pluralism And Democratic Politics: Reflections On The Interpretive Approach Of Baker V. Carr, Guy-Uriel Charles
Faculty Scholarship
Baker v. Carr is one of the Supreme Court's most important opinions, not least because its advent signaled the constitutionalization of democracy. Unfortunately, as is typical of the Court's numerous forays into democratic politics, the decision is not accompanied by an apparent vision of the relationship among democratic practice, constitutional law, and democratic theory. In this Article, Professor Charles revisits Baker and provides several democratic principles that he argues justifies the Court's decision to engage the democratic process. He examines the decision from the perspective of one of its chief contemporary critics, Justice Frankfurter. He sketches an approach, described as …
To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne
To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
Foreword: The Legal History Of The Great Sit-In Case Of Bell V. Maryland, William L. Reynolds
Foreword: The Legal History Of The Great Sit-In Case Of Bell V. Maryland, William L. Reynolds
Faculty Scholarship
Reviews the environment and history of the 1960 Baltimore sit-in case that eventually made its way to the United States Supreme Court.
Constitutional Design: Proposals Versus Processes, Donald L. Horowitz
Constitutional Design: Proposals Versus Processes, Donald L. Horowitz
Faculty Scholarship
No abstract provided.
Federalism And The Rehnquist Court, Calvin R. Massey
Federalism And The Rehnquist Court, Calvin R. Massey
Faculty Scholarship
No abstract provided.
Enda Before It Starts: Section 5 Of The Fourteenth Amendment And The Availability Of Damages Awards To Gay State Employees Under The Proposed Employment Non-Discrimination Act, William D. Araiza
Faculty Scholarship
No abstract provided.
A Balanced Diet Of First Amendment Cases, Joel Gora
A Balanced Diet Of First Amendment Cases, Joel Gora
Faculty Scholarship
No abstract provided.