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Articles 1 - 23 of 23
Full-Text Articles in Law
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.
Suing States For Money: Constitutional Remedies After Alden And Florida Prepaid, Michael Wells
Suing States For Money: Constitutional Remedies After Alden And Florida Prepaid, Michael Wells
Scholarly Works
On June 23, 1999, the Supreme Court handed down three noteworthy decisions bearing on the law of constitutional remedies. Alden v. Maine struck down an attempt by Congress, acting under its Article I powers, to subject states to suits in state court on federal statutory grounds. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank curbed Congress' power under Section 5 of the Fourteenth Amendment to authorize suits against state governments on constitutional grounds, reasoning that a case cannot be made for the federal cause of action unless state law remedies are inadequate. A companion case, College Savings Bank …
The Case For Including Marks V. United States In The Canon Of Constitutional Law, Maxwell L. Stearns
The Case For Including Marks V. United States In The Canon Of Constitutional Law, Maxwell L. Stearns
Faculty Scholarship
In this essay, I would like to suggest adding a single case, with appropriate commentary, to the canon of constitutional law, as presented in introductory casebooks. Specifically, I suggest including Marks v. United States, as a principal case, or in the form of a detailed summary, immediately before or after the first major plurality decision. I should note that the case is rather short – nine pages in the U.S. Reports – and that it nominally involves obscenity doctrine. I would suggest, counterintuitively perhaps, that the case is more fruitfully presented toward the beginning of an introductory course in constitutional …
Due Process And Fundamental Rights, Martin A. Schwartz
Due Process And Fundamental Rights, Martin A. Schwartz
Scholarly Works
No abstract provided.
Disentangling Deregulatory Takings, Jim Rossi, Susan Ackerman-Rose
Disentangling Deregulatory Takings, Jim Rossi, Susan Ackerman-Rose
Vanderbilt Law School Faculty Publications
Constitutional takings protections, such as those in the Fifth Amendment of the United States Constitution, create a potential for state liability for changes in regulatory policy by governments. This Article critiques takings jurisprudence in the context of two infrastructure investment issues: the stranded cost problem facing United States utility industries, which has given rise to claims of compensation for deregulatory takings; and the development of standards to protect direct foreign investment in developing countries. In both contexts, traditional legal doctrines do not adequately provide for the type of remedy sought so courts are in need of standards to assist them …
Comment: Human Rights, Nationalism, And Multiculturalism In Rhetoric, Ethics, And Politics: A Pluralist Critique, Michel Rosenfeld
Comment: Human Rights, Nationalism, And Multiculturalism In Rhetoric, Ethics, And Politics: A Pluralist Critique, Michel Rosenfeld
Articles
No abstract provided.
The Unconstitutionality Of Eliminating Estate And Gift Taxes, James G. Wilson
The Unconstitutionality Of Eliminating Estate And Gift Taxes, James G. Wilson
Law Faculty Articles and Essays
The recent proposal to eliminate estate and gift taxes is not only immoral and a poor allocation of resources, but also is unconstitutional. Irrespective of their ideology, virtually all American lawyers will initially dismiss this accusation as frivolous because it conflicts with their tradition of equating conceptions of "constitutionality" with United States Supreme Court opinions. The Court has long been highly deferential to Congress in federal tax law cases. It is inconceivable that the current Court would find anything "irrational" in a facially neutral law eliminating all estate and gift taxes. Indeed, if I sat on that bench, I would …
Why A Fundamental Right To A Quality Education Is Not Enough, James G. Wilson
Why A Fundamental Right To A Quality Education Is Not Enough, James G. Wilson
Law Faculty Articles and Essays
This article relies upon the political and economic analysis of such great thinkers as Aristotle and Rousseau to understand and normatively evaluate constitutional caselaw in general and education cases in particular. The article's title contains its conclusion: a judicially created right to a quality education is a laudable, but possibly counterproductive and definitely insufficient condition, for creating a humane constitutional system. The rest of society needs to do far more to protect the average citizen and worker from the ever-ravenous ruling class. All the edification in the world will not mean much if there are only a few decent jobs …
Protect The Press: A First Amendment Standard For Safeguarding Aggressive Newsgathering, Erwin Chemerinsky
Protect The Press: A First Amendment Standard For Safeguarding Aggressive Newsgathering, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley
The Treaty Power And American Federalism, Part Ii, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
Proactive Legislation And The First Amendment, Stuart M. Benjamin
Proactive Legislation And The First Amendment, Stuart M. Benjamin
Faculty Scholarship
In this Article, I contend that First Amendment principles dictate a presumption against legislation that is based on predictive harms, but that the presumption will be overcome if a court independently determines that there is a likelihood of irreparable harm. Part I briefly discusses the level of harm required to justify legislation that infringes upon First Amendment rights. Part II turns to proactive legislation, giving some examples of predictive harms. Part III describes the Supreme Court's responses to legislative findings in the First Amendment context, and Part IV discusses the difference between predictive harms and other legislative findings. Part V …
Our Imperial First Amendment, Paul D. Carrington
Our Imperial First Amendment, Paul D. Carrington
Faculty Scholarship
No abstract provided.
Constitutional Design: An Oxymoron?, Donald L. Horowitz
Constitutional Design: An Oxymoron?, Donald L. Horowitz
Faculty Scholarship
No abstract provided.
Extending Copyright And The Constitution: "Have I Stayed Too Long", Michael H. Davis
Extending Copyright And The Constitution: "Have I Stayed Too Long", Michael H. Davis
Law Faculty Articles and Essays
On October 27, 1998, President Clinton signed into law the Sonny Bono Copyright Term Extension Act of 1998, Pub. L. No. 105-298, 112 Stat. 2827 (hereinafter the “Bono Law”). The Bono Law extended the term of copyright protection by an additional twenty years, both prospectively and retrospectively. The former is probably constitutionally proper; the latter is almost certainly forbidden by the Constitution's copyright clause. But most criticism5 has not forcefully distinguished between retrospective as opposed to prospective extension and so far has failed to convince either Congress or the courts of any constitutional infirmity. This is because most critics agree-or …
Customary International Law And Private Rights Of Action, Curtis A. Bradley
Customary International Law And Private Rights Of Action, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
Treaties, Human Rights, And Conditional Consent, Curtis A. Bradley, Jack L. Goldsmith
Treaties, Human Rights, And Conditional Consent, Curtis A. Bradley, Jack L. Goldsmith
Faculty Scholarship
No abstract provided.
Review Of The Expanding Role Of State And Local Governments In U.S. Foreign Affairs, Edward T. Swaine
Review Of The Expanding Role Of State And Local Governments In U.S. Foreign Affairs, Edward T. Swaine
GW Law Faculty Publications & Other Works
This Article reviews The Expanding Role of State and Local Governments in U.S. Foreign Affairs by Earl H. Fry, a book accounting how states and localities are devoting increasing resources to developing their own foreign policy. Fry description is useful and timely, but his allusions to the constitutional basis for a federal monopoly on foreign policy are too summary. As a policy matter, his suggestion for a consensus-driven solution to reconcile competing state and national interests depends on the ability of stakeholders to reach agreements in an increasingly politicized environment, and downplays the importance of foreign actors in these decisions. …
Eleventh Amendment Schizophrenia, Carlos Manuel Vázquez
Eleventh Amendment Schizophrenia, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
This article argues that conflicting analytical strains run through the Supreme Court's recent majority opinions in the area of state sovereign immunity. The "supremacy" strain stresses that, despite the Eleventh Amendment, the states remain obligated to comply with federal law, and that the Constitution envisions the "necessary judicial means" to enforce these obligations against the state. These means include suits by the federal government, private suits for injunctive relief, and suits seeking damages from state officials in their individual capacities. Thus, according to the supremacy strain, state sovereign immunity is unimportant because it merely bars unnecessary means of enforcing the …
The Canon(S) Of Constitutional Law: An Introduction, Mark V. Tushnet
The Canon(S) Of Constitutional Law: An Introduction, Mark V. Tushnet
Georgetown Law Faculty Publications and Other Works
Any discipline has a canon, a set of themes that organize the way in which people think about the discipline. Or, perhaps, any discipline has a number of competing canons. Is there a canon of constitutional law? A group of casebook authors met in December 1999 to discuss the choices they had made - what they had decided to include, what to exclude, what they regretted excluding (or including), what principles they used in developing their casebooks. Most of the authors were affiliated with law schools, but some had developed coursebooks for use in undergraduate political science and constitutional history …
Law As Interpretation, Charles W. Collier
Law As Interpretation, Charles W. Collier
UF Law Faculty Publications
In this Article, I shall trace out separate professional narratives in common law, constitutional law, and in legal cases turning on the distinction between community and society (Part III). But first I should like to situate these legal-professional narratives within a broader interdisciplinary framework (Part II).
Variations On Some Themes Of A Disporting Gazelle And His Friend: Statutory Interpretation As Seen By Jerome Frank And Felix Frankfurter, Kent Greenawalt
Variations On Some Themes Of A Disporting Gazelle And His Friend: Statutory Interpretation As Seen By Jerome Frank And Felix Frankfurter, Kent Greenawalt
Faculty Scholarship
In 1947, this Review published two lectures on statutory interpretation by Jerome Frank and Felix Frankfurter. Both jurists were concerned with a basic question: How constrained are judges when they interpret legislation? The answers each gives, while similar in some respects, differ strikingly. In arguing that interpretation necessarily involves a creative element, Frank analogizes the role of a judge in interpreting legislation to that of a performer in interpreting a musical composition. Although he argues that judicial creativity is constrained, Frank views statutory interpretation as "a kind of legislation." For Frankfurter, by contrast, in construing a statute, a judge is …
Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman
Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman
Journal Articles
This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly …