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2001

Constitutional Law

Institution
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Articles 1 - 30 of 160

Full-Text Articles in Law

Department Of Justice Oversight: Preserving Our Freedoms While Defending Against Terrorism: Hearing Before The S. Comm. On The Judiciary, 107th Cong., Dec. 6, 2001 (Statement Of Neal Kumar Katyal, Prof. Of Law, Geo. U. L. Center), Neal K. Katyal Dec 2001

Department Of Justice Oversight: Preserving Our Freedoms While Defending Against Terrorism: Hearing Before The S. Comm. On The Judiciary, 107th Cong., Dec. 6, 2001 (Statement Of Neal Kumar Katyal, Prof. Of Law, Geo. U. L. Center), Neal K. Katyal

Testimony Before Congress

No abstract provided.


Baker V. State And The Promise Of The New Judicial Federalism, Charles H. Baron, Lawrence Friedman Dec 2001

Baker V. State And The Promise Of The New Judicial Federalism, Charles H. Baron, Lawrence Friedman

Boston College Law School Faculty Papers

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article ...


The Power Of Congress "Without Limitation": The Property Clause And Federal Regulation Of Private Property, Peter A. Appel Nov 2001

The Power Of Congress "Without Limitation": The Property Clause And Federal Regulation Of Private Property, Peter A. Appel

Scholarly Works

Congress has overlooked a powerful tool for regulating within state jurisdictions: the Property Clause of the United States Constitution. The United States Government owns land in every state and approximately thirty percent of the total land in the United States. The federal government's authority to regulate its property within states derives from the Property Clause and has been described by the Supreme Court as "without limitation."

Professor Appel traces the historical development of the Constitution's Property Clause, from its pre-constitutional origins through modern Supreme Court decisions and academic conceptions. Professor Appel compares the narrow view of Property Clause ...


Compelled Statements From Police Officers And Garrity Immunity, Steven D. Clymer Nov 2001

Compelled Statements From Police Officers And Garrity Immunity, Steven D. Clymer

Cornell Law Faculty Publications

In this Article, Professor Steven Clymer describes the problem created when police departments require officers suspected of misconduct to answer internal affairs investigators' questions or face job termination. Relying on the Supreme Court's decision in Garrity v. New Jersey, courts treat such compelled statements as immunized testimony. That treatment not only renders such a statement inadmissible in a criminal prosecution of the suspect police officer, it also may require the prosecution to shoulder the daunting and sometimes insurmountable burden of demonstrating that its physical evidence, witness testimony, and strategic decisionmaking are untainted by the statement. Because police internal affairs ...


Protecting Constitutional Freedoms In The Face Of Terrorism: Hearing Before The S. Comm. On The Judiciary, 107th Cong., Oct. 3, 2001 (Statement Of David D. Cole, Prof. Of Law, Geo. U. L. Center), David Cole Oct 2001

Protecting Constitutional Freedoms In The Face Of Terrorism: Hearing Before The S. Comm. On The Judiciary, 107th Cong., Oct. 3, 2001 (Statement Of David D. Cole, Prof. Of Law, Geo. U. L. Center), David Cole

Testimony Before Congress

No abstract provided.


The Constitution In Exile: Is It Time To Bring It In From The Cold?, William W. Van Alstyne Oct 2001

The Constitution In Exile: Is It Time To Bring It In From The Cold?, William W. Van Alstyne

Faculty Publications

No abstract provided.


Can Process Theory Constrain Courts?, Michael C. Dorf, Samuel Issacharoff Oct 2001

Can Process Theory Constrain Courts?, Michael C. Dorf, Samuel Issacharoff

Cornell Law Faculty Publications

The political process theory introduced by the Carolene Products footnote and developed through subsequent scholarship has shaped much of the modern constitutional landscape. Process theory posits that courts may justifiably intervene in the political arena when institutional obstacles impede corrective action by political actors themselves. Judged by this standard, the United States Supreme Court's decision in Bush v. Gore was a failure, because the majority could not explain why its interference was necessary. More broadly, Bush v. Gore points to a central deficiency in process theory: it relies upon the Justices to guard against their own overreaching, but does ...


Race To The Stars: A Federalism Argument For Leaving The Right Of Publicity In The Hands Of The States, Usha Rodrigues Oct 2001

Race To The Stars: A Federalism Argument For Leaving The Right Of Publicity In The Hands Of The States, Usha Rodrigues

Scholarly Works

This Note will argue that, given the variation in the right of publicity from state to state, and the relative newness of this property right, Congress should refrain from passing a law to federalize it. Although there are sound arguments for adopting this right, there are also reasons to hesitate. Given that only half of the states have adopted it, federalization seems premature. This Note will only obliquely address the main objection usually leveled at a robust right of publicity, namely that it stifles creativity and implicates First Amendment concerns. The focus instead will be on the right of individual ...


The Irs As Super Creditor, Steve R. Johnson Jul 2001

The Irs As Super Creditor, Steve R. Johnson

Scholarly Publications

The IRS is a super creditor in the sense that its efforts to collect tax debts are free of restrictions imposed by state law on other creditors. This principle is no novelty. Several recent developments, though, have involved interesting applications of it. Part I of this article explains the principle. Part II examines recent applications of it.


Supreme Court Takes A Look At Takings, John R. Nolon Jul 2001

Supreme Court Takes A Look At Takings, John R. Nolon

Pace Law Faculty Publications

In the case of Pazzalo v. Rhode Island the United States Supreme Court reversed a determination by the Rhode Island Supreme Court which held that land owners had no right to sue for a regulatory taking if the land owners purchased title to land on which a preexisting restriction existed. Before this case, the rule in New York also precluded landowners from challenging land use regulations that existed at the time they purchased land. After holding that a regulatory takings challenge existed, the Supreme Court remanded the case back to Rhode Island to decide whether the preexisting regulations affected the ...


When Lochner Met Dolan: The Attempted Transformation Of American Land Use Law By Constitutional Interpretation, Ronald H. Rosenberg, Nancy Stroud Jul 2001

When Lochner Met Dolan: The Attempted Transformation Of American Land Use Law By Constitutional Interpretation, Ronald H. Rosenberg, Nancy Stroud

Faculty Publications

No abstract provided.


Were There Adequate State Grounds In Bush V. Gore?, Michael L. Wells Jul 2001

Were There Adequate State Grounds In Bush V. Gore?, Michael L. Wells

Scholarly Works

Few Supreme Court decisions provoke the immediate and intensely negative verdict that law professors passed on Bush v. Gore. Some of the criticism is deserved. Others have questioned whether the ruling rests on any general principle at all, given the care the Court took to limit its reasoning to the extraordinary circumstances of the Florida presidential election.

It is all too easy to leap from this well-founded critique of the Court's reasoning to the conclusion that the majority – all of whom were appointed by Republican presidents – were bent on installing George W. Bush in the White House by any ...


Memorandum Of Argument For Leave To Appeal Of The Appellant James R. Demers, Court Of Appeal For Province Of British Columbia, Jeffrey C. Tuomala Jun 2001

Memorandum Of Argument For Leave To Appeal Of The Appellant James R. Demers, Court Of Appeal For Province Of British Columbia, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.


The True Constitutionalist, Raoul Berger, 1901-2000: His Life And His Contribution To American Law And Politics, Gary L. Mcdowell May 2001

The True Constitutionalist, Raoul Berger, 1901-2000: His Life And His Contribution To American Law And Politics, Gary L. Mcdowell

Jepson School of Leadership Studies articles, book chapters and other publications

When Raoul Berger turned ninety a little over a decade ago, he was presented with a book of letters from friends and admisrers. Those sending their good wishes were among America's most distinguished jurists, public officials and scholars, including Chief Justice William H. Rehnquist, former Attorney General Edwin Meese III and Professor Philip B. Kurland. The collection was introduced by a letter from former President Ronald Reagan.


Constitution-Making In Africa: Assessing Both The Process And The Content, Muna Ndulo May 2001

Constitution-Making In Africa: Assessing Both The Process And The Content, Muna Ndulo

Cornell Law Faculty Publications

No abstract provided.


Hate And The Bar: Is The Hale Case Mccarthyism Redux Or A Victory For Racial Equality?, W. Bradley Wendel May 2001

Hate And The Bar: Is The Hale Case Mccarthyism Redux Or A Victory For Racial Equality?, W. Bradley Wendel

Cornell Law Faculty Publications

The application of the constitutional free expression guarantee to the activities of the organized bar is one of the most important unexplored areas of legal ethics. In this essay I will consider in particular the question of whether an applicant may be denied admission to the bar for involvement with hateful or discriminatory activities. This question reveals the tension between the first amendment principle, established after the agonizing struggles of the McCarthy era, that no one may be denied membership in the bar because of his or her beliefs alone, and the plenary authority of bar associations to make predictive ...


Structural Review, Pseudo-Second-Look Decision Making, And The Risk Of Diluting Constitutional Liberty, Dan T. Coenen May 2001

Structural Review, Pseudo-Second-Look Decision Making, And The Risk Of Diluting Constitutional Liberty, Dan T. Coenen

Scholarly Works

In this Essay, I will pause to note some reasons why the "sham decision" critique of structural review is, for me, unpersuasive. I also will offer a few comments on the proper relationship between structural and substantive review. I note, in particular, that an endorsement of "activist" structural review need not lead to a "nonactivist" approach to substantive review, far less to its total abandonment. I also suggest that a vigorous embrace of structural rules may well lead to more, rather than less, overall judicial protection of fundamental rights.


A Constitution Of Collaboration: Protecting Fundamental Values With Second-Look Rules Of Interbranch Dialogue, Dan T. Coenen May 2001

A Constitution Of Collaboration: Protecting Fundamental Values With Second-Look Rules Of Interbranch Dialogue, Dan T. Coenen

Scholarly Works

Often the Supreme Court directly engages nonjudicial officials in a shared elaboration of constitutional rights. It does so through the use of doctrines that focus on whether nonjudicial actors have taken an appropriately close and sensitive look at policy judgments that threaten important constitutional values. In many of these cases, the Court in effect "remands" constitutionally controversial programs to the political branches--inviting a more studied consideration of the program than attended its initial adoption, and leaving open the possibility that the readopted program will be upheld against constitutional attack.

The Court's structural doctrines range from the familiar vagueness rule ...


The 2000 Presidential Election: Archetype Or Exception?, Michael C. Dorf May 2001

The 2000 Presidential Election: Archetype Or Exception?, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.


Determining Reasonableness Under The Fourth Amendment: Physical Force To Control And Punish Students, Kathryn R. Urbonya Apr 2001

Determining Reasonableness Under The Fourth Amendment: Physical Force To Control And Punish Students, Kathryn R. Urbonya

Faculty Publications

No abstract provided.


Chief Justice Joseph R. Weisberger's Page Of History, Bruce I. Kogan, Cheryl L. Robertson Apr 2001

Chief Justice Joseph R. Weisberger's Page Of History, Bruce I. Kogan, Cheryl L. Robertson

Law Faculty Scholarship

No abstract provided.


The Gestation Of Birthright Citizenship, 1868-1898: States' Rights, The Law Of Nations, And Mutual Consent, Bernadette Meyler Apr 2001

The Gestation Of Birthright Citizenship, 1868-1898: States' Rights, The Law Of Nations, And Mutual Consent, Bernadette Meyler

Cornell Law Faculty Publications

This article considers the inheritance of the seventeenth-century English common law conception of the subject in nineteenth-century America and, ultimately, in the Supreme Court’s decision in United States v. Wong Kim Ark (1898). It examines the claims for birthright citizenship derived from British common law and the three principal arguments against them. These latter included: objections to the assertion of a federal common law of citizenship from the perspective of state sovereignty; arguments that the United States should embrace citizenship by blood rather than by birth in order to conform to the practice of the law of nations and ...


When Can A State Be Sued?, William W. Van Alstyne Apr 2001

When Can A State Be Sued?, William W. Van Alstyne

Popular Media

In her Popular Government article “When You Can’t Sue the State: State
Sovereign Immunity” (Summer 2000), Anita R. Brown-Graham described
a series of recent decisions in which a sharply divided U.S. Supreme Court
barred individuals from suing states for money damages for certain violations
of federal law, such as laws prohibiting discrimination against employees
because of their age. In the response that follows, William Van Alstyne
argues that this barrier to relief is neither unduly imposing nor novel. The
debate over the significance of these decisions is likely to continue. In
February 2001, in another case decided by ...


Corrective Justice And Constitutional Torts, Bernard P. Dauenhauer, Michael L. Wells Apr 2001

Corrective Justice And Constitutional Torts, Bernard P. Dauenhauer, Michael L. Wells

Scholarly Works

Tort liability in the private realm may be understood as "an instrument aimed...at deterrence...[and] a way of achieving corrective justice between the parties." Following the common law model, the Supreme Court has borrowed this normative framework for constitutional torts, ruling that the aims of liability for damages are to vindicate constitutional rights and to deter constitutional violations. A recent article by Daryl Levinson takes issue with this approach. Levinson argues that the superficial similarities between public torts and private torts conceal real differences, to which neither the Court nor scholars have paid adequate attention. The main point of ...


The Good Society, Commerce, And The Rehnquist Court, Michael C. Dorf Apr 2001

The Good Society, Commerce, And The Rehnquist Court, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.


The Price Of Vouchers For Religious Freedom, Laura S. Underkuffler Apr 2001

The Price Of Vouchers For Religious Freedom, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.


Foreword: Symposium Re-Examining First Principles: Deterrence And Corrective Justice In Constitutional Torts, Thomas A. Eaton Apr 2001

Foreword: Symposium Re-Examining First Principles: Deterrence And Corrective Justice In Constitutional Torts, Thomas A. Eaton

Scholarly Works

This Symposium provides a forum for a careful and thoughtful consideration of whether constitutional tort law can deter wrongdoing and is consistent with principles of corrective justice.


Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich Apr 2001

Innocence Protection Act: Death Penalty Reform On The Horizon, Ronald Weich

All Faculty Scholarship

The criminal justice pendulum may be swinging back in the direction of fairness. The Innocence Protection Act of 2001, introduced in both the Senate and the House of Representatives earlier this year, promises meaningful reforms in the administration of capital punishment in the United States.

Unlike previous slabs at reform, the Innocence Protection Act (lPA) has a real chance to become law because it commands unusually broad bipartisan support. The Senate bill (S. 486) is sponsored by Democrat Pat Leahy of Vermont and Republican Gordon Smith of Oregon. The House bill (H.R. 912) is sponsored by Democrat Bill Delahunt ...


Section 1983, The First Amendment, And Public Employee Speech: Shaping The Right To Fit The Remedy (And Vice Versa), Michael Wells Apr 2001

Section 1983, The First Amendment, And Public Employee Speech: Shaping The Right To Fit The Remedy (And Vice Versa), Michael Wells

Scholarly Works

This Article is not about theories of free speech and how they bear on the public employment context, nor does it contribute to the academic debate over what the aims of public employee speech law ought to be. I take the Court at its word when it says that its aim is to give substantial weight to both the value of speech and the government's interest as an employer. Unlike Massaro and Ingber, I take it as a given that the government may insist on hierarchy and obedience to authority in the workplace. Unlike Rosenthal, I begin from the ...


Brief Amici Curiae Of Legal Historians Listed Herein In Support Of Repondent, I.N.S. V. St. Cyr, No. 00-767 (U.S. Mar. 27, 2001), ., James Oldham Mar 2001

Brief Amici Curiae Of Legal Historians Listed Herein In Support Of Repondent, I.N.S. V. St. Cyr, No. 00-767 (U.S. Mar. 27, 2001), ., James Oldham

U.S. Supreme Court Briefs

No abstract provided.