Law Commons^™

The Doctrine Of Conditional Preemption And Other Limitations On Tenth Amendment Restrictions, Ronald D. Rotunda

Law Faculty Articles and Research

No abstract provided.

U.S. Supreme Court: The 1983-84 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

Berger V. The Supreme Court—The Implications Of His Exceptions-Clause Odyssey, Thomas B. Mcaffee

Scholarly Works

In his 1969 Congress v. The Supreme Court, Raoul Berger evaluated the potential claims to supremacy of Congress and the Supreme Court under the exceptions clause of article III and found in favor of the Supreme Court. Berger explicated a narrow construction of Congress’ express power to make exceptions to the Court’s appellate jurisdiction, holding that Congress’ claimed power to curb judicial excess was at odds with the design of the Constitution and without historical foundation. From 1969 to 1980, Berger reaffirmed his initial reading of the legislative history of article III no less than four times, once in …

Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne

Faculty Scholarship

With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.

Withdrawing Jurisdiction From Federal Courts, Charles E. Rice

Journal Articles

Courts today accept two incorrect assumptions when interpreting the federal constitution. First, they assume that the judiciary is the sole branch with the definitive power in interpreting the Constitution. Second, they assume that the Supreme Court's decisions on constitutional interpretation are the law of the land and equal to the language of the Constitution itself. This Article proposes that Congress ought to exercise its removal power of appellate jurisdiction from the federal courts in certain areas of law to limit the Supreme Court’s power in creating law that expands the Constitution, which is mistakenly viewed today with equal stature as …

Incest Statutes And The Fundamental Right Of Marriage: Is Oedipus Free To Marry?, Carolyn S. Bratt

Law Faculty Scholarly Articles

The U.S. Supreme Court has found that the right to marry is a constitutionally protected right. That right is restricted, however, by state incest statutes which impede marriage between adults by making some choices of a marriage partner illegal. The constitutional validity of modern state incest statutes is difficult to analyze because of shifting definitions, reflexive fears, ambivalent attitudes, and underlying facile generalizations.

The mere word "incest" triggers strong feelings of revulsion in most people. Therefore, any a priori labeling of a marriage as incestuous tends to preclude objective thought about the permissibility of the particular form of the marriage …