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2005

Constitutional Law

Institution
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Articles 1 - 30 of 228

Full-Text Articles in Law

Heights Of Justice (Introduction And Front Matter), Lawrence A. Cunningham Dec 2005

Heights Of Justice (Introduction And Front Matter), Lawrence A. Cunningham

Boston College Law School Faculty Papers

In this pioneering book, Boston College Law School’s Academic Dean, Lawrence Cunningham, arranges selected contributions of his faculty’s scholarship into a meditation upon justice. The book weaves a combination of theory and practice to articulate moral and ethical values that facilitate rational application of law. It envisions legal arrangements imbued with commitments of the Jesuit tradition, including the dignity of persons, the common good and compassion for the poor. This reflective collection of inquiry evokes a signature motif of the BC Law faculty in dozens of different legal subjects. Materials downloadable from this abstract consist of: Table of ...


Horizontal Federalism In An Age Of Criminal Justice Interconnectedness, Wayne A. Logan Dec 2005

Horizontal Federalism In An Age Of Criminal Justice Interconnectedness, Wayne A. Logan

Scholarly Publications

Despite their status as independent sovereigns, states increasingly exhibit a willingness to interact when it comes to crime control matters. This Article examines the two foremost examples of this phenomenon: criminal recidivist enhancement laws and sex offender registration laws. Both types of laws have been around for decades and have evolved to accommodate ex-offenders, who, consistent with constitutional freedom of movement, can (and often do) change state residences. This effort at accommodation, however, puts states in the unusual position of having to interpret and apply the criminal laws and outcomes of their fellow sovereigns. As the Article makes clear, recidivist ...


What Bush Wants To Hear, David Cole Nov 2005

What Bush Wants To Hear, David Cole

Georgetown Law Faculty Publications and Other Works

No abstract provided.


Gay Self-Identification And The Right To Political Legibility, Fadi G. Hanna Nov 2005

Gay Self-Identification And The Right To Political Legibility, Fadi G. Hanna

Student Scholarship Papers

Over twenty years after the Sixth Circuit held that a bisexual public employee could be dismissed for coming out, courts remain split on the question of constitutional protection for gay coming-out speech. In addressing that question, this Article begins with a more fundamental one: What is the legal harm of suppressing coming-out speech? This Article suggests that a distinct legal harm follows from whether one conceives of coming-out as “persuasive,” “creative,” or “descriptive” speech—establishing a framework that applies to all minorities whose status is not readily apparent. Arguing that courts and scholars have adopted persuasive and creative conceptions of ...


Symposium On Sentencing Rhetoric: Competing Narratives In The Post-Booker Era, Roger Williams University School Of Law Oct 2005

Symposium On Sentencing Rhetoric: Competing Narratives In The Post-Booker Era, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.


Examination Of The Constitutional Amendment On Marriage: Hearing Before The Subcomm. On The Constitution, Civil Rights, And Property Rights Of The S. Comm. On The Judiciary, 109th Cong., Oct. 20, 2005 (Statement Of Professor Louis Michael Seidman, Geo. U. L. Center), Louis Michael Seidman Oct 2005

Examination Of The Constitutional Amendment On Marriage: Hearing Before The Subcomm. On The Constitution, Civil Rights, And Property Rights Of The S. Comm. On The Judiciary, 109th Cong., Oct. 20, 2005 (Statement Of Professor Louis Michael Seidman, Geo. U. L. Center), Louis Michael Seidman

Testimony Before Congress

No abstract provided.


Fallout From Kelo: Ruling Spurs Legislative Proposals To Limit Takings, John R. Nolon, Jessica A. Bacher Oct 2005

Fallout From Kelo: Ruling Spurs Legislative Proposals To Limit Takings, John R. Nolon, Jessica A. Bacher

Pace Law Faculty Publications

The 2005 Supreme Court decision in Kelo v. City of New London has galvanized much unwarranted controversy over governmental authority to condemn private property. A legislative reaction throughout the country has focused on limiting governmental condemnation authority in order to encourage economic development. This article discusses some of the specific pros and cons of reactionary legislation by both the federal and New York legislature.


Federalism And Antitrust Reform, Herbert J. Hovenkamp Oct 2005

Federalism And Antitrust Reform, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Currently the Antitrust Modernization Commission is considering numerous proposals for adjusting the relationship between federal antitrust authority and state regulation. This essay examines two areas that have produced a significant amount of state-federal conflict: state regulation of insurance and the state action immunity for general state regulation. It argues that no principle of efficiency, regulatory theory, or federalism justifies the McCarran-Ferguson Act, which creates an antitrust immunity for state regulation of insurance. What few benefits the Act confers could be fully realized by an appropriate interpretation of the state action doctrine. Second, the current formulation of the antitrust state action ...


Counterrevolution? -- National Criminal Law After Raich, George D. Brown Oct 2005

Counterrevolution? -- National Criminal Law After Raich, George D. Brown

Boston College Law School Faculty Papers

This article provides an in-depth analysis of the Supreme Court’s recent decision in Gonzales v. Raich. The Court rejected by a margin of 6-3 a Ninth Circuit holding that the federal Controlled Substances Act would probably be found unconstitutional as applied to intrastate users of marijuana who were in conformity with California’s Compassionate Use Act. Although the majority, and Justice Scalia concurring, found the case to present a relatively straightforward problem in the application of Commerce Clause doctrine, the three dissenters (Justice O’Connor, joined by Chief Justice Rehnquist, and Justice Thomas) sounded sharp notes decrying a betrayal ...


Does Constitutional Change Matter? Canada's Recognition Of Aboriginal Title, Kirsten Matoy Carlson Oct 2005

Does Constitutional Change Matter? Canada's Recognition Of Aboriginal Title, Kirsten Matoy Carlson

Law Faculty Research Publications

No abstract provided.


The View Outside: What Kind Of Expression For Adolescents Outside The United States?, Edward J. Eberle Oct 2005

The View Outside: What Kind Of Expression For Adolescents Outside The United States?, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.


Rhode Island Court Resolves Palazzolo, Jonathan Lew Oct 2005

Rhode Island Court Resolves Palazzolo, Jonathan Lew

Sea Grant Law Fellow Publications

No abstract provided.


Some Reflections On The Symposium: Judging, The Classical Legal Paradigm And The Possible Contributions Of Science, Christina E. Wells Oct 2005

Some Reflections On The Symposium: Judging, The Classical Legal Paradigm And The Possible Contributions Of Science, Christina E. Wells

Faculty Publications

One theme running through the many excellent contributions to this symposium involves the myriad influences on judicial decision-making. As Professor Wrightsman notes, Supreme Court Justices' personal characteristics may affect their ability to influence colleagues and, consequently, the outcome of Supreme Court decisions. Professor Ruger observes that judges have both attitudinal and jurisprudential preferences that may change over time, affecting legal outcomes differently as time passes. Professor Sisk similarly notes that judges' personal values and experiences influence their decision-making. These observations are consistent with those of numerous other scholars, who find wide-ranging and diverse influences on the judicial resolution of legal ...


Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton Oct 2005

Stepping Through Grutter'S Open Doors: What The University Of Michigan Affirmative Action Cases Mean For Race-Conscious Government Decisionmaking, Helen L. Norton

Faculty Scholarship

In Grutter, a majority of the Court for the first time identified an instrumental justification for race-based government decisionmaking as compelling -- specifically, a public law school’s interest in attaining a diverse student body. Grutter not only recognized the value of diversity in higher education, but left open the possibility that the Court might find similar justifications compelling as well. The switch to instrumental justifications for affirmative action appears a strategic response to the Court’s narrowing of the availability of remedial rationales. A number of thoughtful commentators, however, have reacted to this trend with concern and even dismay, questioning ...


Does The Constitution Apply To The Actions Of The United States Anti-Doping Agency?, Dionne L. Koller Oct 2005

Does The Constitution Apply To The Actions Of The United States Anti-Doping Agency?, Dionne L. Koller

All Faculty Scholarship

Since its formation in 2000, the United States Anti-Doping Agency (USADA) has aggressively pursued athletes who are believed to have used performance-enhancing substances and has aggressively prosecuted those who ultimately test positive. To many, this is a long overdue response to the growing problem of doping in sports. But to others, USADA's actions, and the federal government's support of these efforts, has sparked enormous controversy. This article examines USADA and its relationship to the federal government to determine whether USADA's actions could be constrained by the Constitution. While it is clear that USADA has very close ties ...


Petitioner's Observations On Canada's Additional Information, Jeffrey C. Tuomala Sep 2005

Petitioner's Observations On Canada's Additional Information, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.


Section 5: Federalism, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2005

Section 5: Federalism, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Section 1: Moot Court, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2005

Section 1: Moot Court, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Terrorism And The New Criminal Process, John Parry Sep 2005

Terrorism And The New Criminal Process, John Parry

University of Pittsburgh School of Law Working Paper Series

Executive and legislative actions after 9/11 demonstrate a shift in the way the federal government combats terrorism. Traditional law enforcement entities have been given new powers, and military and intelligence personnel have taken on a new prominence. Criminal prosecutions are still being brought against persons suspected of terrorist activity, but the government seems less willing to accord criminal trials a central role in anti-terror efforts. In short, we are seeing the creation of a “new criminal process” for terrorism, a process that in many cases bypasses federal courts and operates wholly outside the territorial boundaries of the United States ...


Don’T Tell, Don’T Ask: Narrow Tailoring After Grutter And Gratz, Ian Ayres, Sydney Foster Sep 2005

Don’T Tell, Don’T Ask: Narrow Tailoring After Grutter And Gratz, Ian Ayres, Sydney Foster

John M. Olin Center for Studies in Law, Economics, and Public Policy Working Papers

The Supreme Court’s affirmative action decisions in Grutter v. Bollinger and Gratz v. Bollinger changed the meaning of “narrow tailoring.” While the narrow tailoring requirement has always had multiple dimensions, a central meaning has been that the government must use the smallest racial preference needed to achieve its compelling interest. We might have expected, therefore, that if the Court were to uphold one of the two programs at issue in Grutter and Gratz, it would, all other things being equal, uphold the program with smaller racial preferences. We show, however, that the preferences in the admissions program upheld in ...


Constitutional Adjudication, Civil Rights, And Social Change, Suzanne B. Goldberg Sep 2005

Constitutional Adjudication, Civil Rights, And Social Change, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Judicial opinions typically rely on “facts” about a social group to justify or reject limitations on group members’ rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact-based approach to decision-making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial power to retain traditional justifications for restricting group members’ rights in some settings but not ...


Legislatively Revising Kelo V. City Of New London: Eminent Domain, Federalism, And Congressional Powers, Bernard W. Bell Aug 2005

Legislatively Revising Kelo V. City Of New London: Eminent Domain, Federalism, And Congressional Powers, Bernard W. Bell

Rutgers Law School (Newark) Faculty Papers

This paper explores Congress’ power to limit state and local authorities’ use of eminent domain to further economic revitalization. More particularly, it examines whether Congress can constrain the discretion to invoke eminent domain which state and local officials appear entitled to under the Supreme Court’s recent decision in Kelo v. City of New London, — U.S. —, 125 S.Ct. 2655 (2005). The question involves and exploration and assessment of the Supreme Court’s recent jurisprudence regarding federalism and judicial supremacy.

In providing that private property may not be taken for “public use” without just compensation, the Fifth Amendment implicitly ...


Private Property, Development And Freedom, Steven J. Eagle Aug 2005

Private Property, Development And Freedom, Steven J. Eagle

George Mason University School of Law Working Papers Series

The author asserts that adherence to the rule of law, including property law, is a necessary condition to economic development and human freedom. United States governmental agencies and private institutes have attempted to convey this message to Russia, other states of the former Soviet Union, and former Soviet satellite states, with some success. Finally, and unfortunately, the United States has veered away from the very adherence to the rule of law respecting property which it espouses abroad.


Crops, Guns & Commerce: A Game Theoretical Critique Of Gonzales V. Raich, Maxwell L. Stearns Aug 2005

Crops, Guns & Commerce: A Game Theoretical Critique Of Gonzales V. Raich, Maxwell L. Stearns

George Mason University School of Law Working Papers Series

In Gonzales v. Raich, the Supreme Court sustained an application of the Controlled Substances Act (“CSA”), banning all private use of marijuana, as applied to two women who had cultivated or otherwise acquired marijuana for the treatment of severe pain pursuant to the California Compassionate Use Act. Writing for the majority, Justice Stevens placed Raich at the intersection of two landmark Commerce Clause precedents: Wickard v. Filburn, the notorious 1942 decision, which upheld a penalty under the Agriculture Adjustment Act of 1938 applied to a local farmer who violated his wheat quota but who had used the modest excess portion ...


Substantive Due Process As A Source Of Constitutional Protection For Nonpolitical Speech, Gregory P. Magarian Aug 2005

Substantive Due Process As A Source Of Constitutional Protection For Nonpolitical Speech, Gregory P. Magarian

Working Paper Series

Present First Amendment doctrine presumptively protects anything within the descriptive category “expression” from government regulation, subject to balancing against countervailing government interests. As government actions during the present war on terrorism have made all too clear, that doctrine allows intolerable suppression of political debate and dissent – the expressive activity most integral to our constitutional design. At the same time, present doctrine fails to give a clear account of why the Constitution protects expressive autonomy and when that protection properly should yield to government interests, leading to an inconsistent and unsatisfying free speech regime. In this article, Professor Magarian advocates a ...


The Reasonableness Of Probable Cause, Craig S. Lerner Aug 2005

The Reasonableness Of Probable Cause, Craig S. Lerner

George Mason University School of Law Working Papers Series

Probable cause is generally cast in judicial opinions and the scholarly literature as a fixed probability of criminal activity. In the weeks before the September 11 attacks, FBI headquarters, applying such an unbending standard, rejected a warrant application to search Zacarias Moussaoui’s laptop computer. This article, which begins with an analysis of the Moussaoui episode, argues that the probable cause standard should be calibrated to the gravity of the investigated offense and the intrusiveness of a proposed search. Tracing the evolution of probable cause from the common law through its American development, the article argues that the Supreme Court ...


Expressive Association After Dale, David E. Bernstein Aug 2005

Expressive Association After Dale, David E. Bernstein

George Mason University School of Law Working Papers Series

The right to join with other people to promote a particular outlook, known as the right of expressive association, is a necessary adjunct to the right of freedom of speech, which is protected by the First Amendment of the United States Constitution. In Boy Scouts of America v. Dale, the United States Supreme Court found that the Boy Scouts of America had a First Amendment expressive association right to exclude a homosexual adult volunteer. Dale is likely to prove to be one of the most important First Amendment cases of recent years, because the Court enforced a broad right of ...


Does Terrorism Increase Crime? A Cautionary Tale, John Donohue, Daniel E. Ho Aug 2005

Does Terrorism Increase Crime? A Cautionary Tale, John Donohue, Daniel E. Ho

John M. Olin Center for Studies in Law, Economics, and Public Policy Working Papers

No abstract provided.


Regulating Section 527 Organizations, Gregg D. Polsky, Guy-Uriel E. Charles Aug 2005

Regulating Section 527 Organizations, Gregg D. Polsky, Guy-Uriel E. Charles

Scholarly Works

In this Essay, we consider whether the Federal Election Commission (FEC) has the authority to regulate independent 527 organizations (e.g., Swiftboat Veterans for Truth, Moveon.org, etc.) as political committees under the Federal Election Campaign Act. This issue, which was hotly debated during the last election cycle when it was considered and ultimately tabled by the FEC, is an extremely complex one that requires a deep understanding of election, tax, administrative, and constitutional law. After considering how these areas of law intersect, we conclude that the FEC lacks the authority to regulate independent 527 organizations as political committees.


House Resolution On The Appropriate Role Of Foreign Judgments In The Interpretation Of The Constitution Of The United States: Hearing Before The Subcommittee On The Constitution, House Committee On The Judiciary, 109th Cong., July 19, 2005 (Statement Of Viet D. Dinh, Prof. Of Law, Geo. U. L. Center), Viet D. Dinh Jul 2005

House Resolution On The Appropriate Role Of Foreign Judgments In The Interpretation Of The Constitution Of The United States: Hearing Before The Subcommittee On The Constitution, House Committee On The Judiciary, 109th Cong., July 19, 2005 (Statement Of Viet D. Dinh, Prof. Of Law, Geo. U. L. Center), Viet D. Dinh

Testimony Before Congress

No abstract provided.