Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 12 of 12

Full-Text Articles in Law

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 ...


A Government Of Limited Powers, Carl E. Schneider Jul 2005

A Government Of Limited Powers, Carl E. Schneider

Articles

Roscoe C. Filburn owned a small farm in Ohio where he raised poultry, dairy cows, and a modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. The Agricultural Adjustment Act of 1938 limited the wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits. Mr. Filburn sued. He said Claude Wickard, the Secretary of Agriculture, could not enforce the AAI's limits because Congress lacked authority to regulate wheat grown for one's own use. He reasoned: In our federal ...


Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben Apr 2005

Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben

Faculty Publications

Scholars have approached arbitration, especially under the Federal Arbitration Act, from a variety of perspectives, including doctrinal, historical, empirical, and practical. One aspect that has not yet been fully considered, however, is the relationship between arbitration and constitutional democracy. Yet, as a dispute-resolution process that is often sanctioned by the government, that sometimes inextricably intertwines governmental and private conduct, and that derives its legitimacy from the government, it is appropriate--indeed, our responsibility--to ask whether arbitration furthers the goals of democratic governance. It is only sensible that state-supported dispute resolution in a democracy should strengthen, rather than diminish, democratic governance and ...


Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin Apr 2005

Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin

Scholarly Works

No abstract provided.


The Transatlantic Constitution: Colonial Legal Culture And The Empire (Excerpt), Mary Sarah Bilder Mar 2005

The Transatlantic Constitution: Colonial Legal Culture And The Empire (Excerpt), Mary Sarah Bilder

Boston College Law School Faculty Papers

Departing from traditional approaches to colonial legal history, Mary Sarah Bilder argues that American law and legal culture developed within the framework of an evolving, unwritten transatlantic constitution that lawyers, legislators, and litigants on both sides of the Atlantic understood. The central tenet of this constitution--that colonial laws and customs could not be repugnant to the laws of England but could diverge for local circumstances--shaped the legal development of the colonial world. Focusing on practices rather than doctrines, Bilder describes how the pragmatic and flexible conversation about this constitution shaped colonial law: the development of the legal profession; the place ...


The Perfect Crime, Brian C. Kalt Jan 2005

The Perfect Crime, Brian C. Kalt

Faculty Publications

No abstract provided.


Video Games As A Protected Form Of Expression, Paul E. Salamanca Jan 2005

Video Games As A Protected Form Of Expression, Paul E. Salamanca

Law Faculty Scholarly Articles

Video games, like motion pictures, failed to qualify for First Amendment protection until well after they emerged as a medium. Today, a number of courts have held that such games constitute a form of expression and do not fall into any recognized category of unprotected speech. Nevertheless, a number of commentators have called for limited constitutional protection for video games, predicating their arguments on a variety of grounds, including the alleged deleterious effects of such games on children. This Article responds to these commentators and defends recent decisions extending protection to video games.


Roper V. Simmons And Our Constitution In International Equipoise, Roger P. Alford Jan 2005

Roper V. Simmons And Our Constitution In International Equipoise, Roger P. Alford

Journal Articles

In Roper v. Simmons, the Court unequivocally affirms the use of comparative constitutionalism to interpret the Eighth Amendment. It does not, however, provide an obvious theoretical basis to justify the practice. This Article searches for a theory to explain the comparativism in Roper using the theories advanced in the author's previous scholarship. It concludes that of the colorable candidates, natural law constitutionalism is the most plausible explanation, with the attendant problems associated therewith. The Article concludes with an analysis of the possible ramifications of the Court's comparative approach, suggesting that it may be pursuing a Constitution that is ...


Constitutional Accommodation And The Rule(S) Of Courts, Lorne Sossin Jan 2005

Constitutional Accommodation And The Rule(S) Of Courts, Lorne Sossin

Articles & Book Chapters

Constitutional authority for the development and implementation of the rules of court lies with both the legislature, by its statutory power, and the judiciary, by the constitutional principles of judicial independence. The court rules in question here are those that govern court accessibility as well as the roles and responsibilities of parties in civil litigation. The three existing models of rule-making are court-led, where a majority of government officials, and collaborative, which lacks an evident majority of either. These rule-making bodies do not control court fees, the executive does, but in a system with any model, the judiciary always has ...


The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen Jan 2005

The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen

Faculty Scholarship

This paper argues that the market participant exception to the dormant commerce clause reflects the same concerns that led to the clear statement doctrine for application of general legislation to the operations of state governments. The genius of the Constitution was to make federal law directly applicable to individuals instead of through state governments – this made enforcement easier and avoided confrontation between the state and nation. Confrontation in which the federal authorities order the state to act in a particular way should be a result of consideration of the need to do so. But the dormant commerce clause by definition ...


Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne Jan 2005

Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne

Faculty Scholarship

No abstract provided.


Holmes On The Lochner Court, Gerald Leonard Jan 2005

Holmes On The Lochner Court, Gerald Leonard

Faculty Scholarship

For this symposium on Lochner, I examined the jurisprudence of the man commonly thought to be the Lochner majority's fiercest foe, Justice Oliver Wendell Holmes, Jr. Holmes wrote the famous dissent in Lochner and other cases of the era. But as Barry Cushman notes in his contribution to this symposium, Holmes joined many a Lochner-era majority in striking down any number of economic regulations. Holmes's Fourteenth Amendment opinions suggest: 1) that, while Holmes advocated a somewhat more pointed rule of deference to legislatures than did most of his colleagues, his language in this respect was far less radical ...