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Full-Text Articles in Law

Rwu First Amendment Blog: Andrew Horwitz's Blog: First Amendment Protects The Right To Give And To Receive 05-23-2017, Andrew Horwitz May 2017

Rwu First Amendment Blog: Andrew Horwitz's Blog: First Amendment Protects The Right To Give And To Receive 05-23-2017, Andrew Horwitz

Law School Blogs

No abstract provided.


The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman Jan 2015

The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman

Faculty Publications

No abstract provided.


Understanding The Establishment Clause: A Revisit, Robert A. Sedler Jan 2013

Understanding The Establishment Clause: A Revisit, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.


State Constitutions And Individual Rights: Conceptual Convergence In School Finance Litigation, Scott R. Bauries Jan 2011

State Constitutions And Individual Rights: Conceptual Convergence In School Finance Litigation, Scott R. Bauries

Law Faculty Scholarly Articles

This Article begins by reviewing Wesley Newcomb Hohfeld's “fundamental conceptions” and expanding his theory to the arena of state constitutional rights, building on recent work by other scholars. From this foundation, it moves to a discussion of the sources of rights to education. The Article then examines the text of relevant state constitutional provisions, as well as the ever-changing landscape of school finance litigation, the principal vehicle through which litigants assert constitutional claims based on ostensible education rights. Next, it systematically analyzes the population of reported cases from the highest state courts to identify Hohfeldian conceptions of education rights ...


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 ...


Beyond The Hero Judge: Institutional Reform Litigation As Litigation, Margo Schlanger Jan 1999

Beyond The Hero Judge: Institutional Reform Litigation As Litigation, Margo Schlanger

Reviews

In 1955, in its second decision in Brown v. Board of Education, the Supreme Court suggested that federal courts might be called upon to engage in long-term oversight of once-segregated schools. Through the 1960s, southern resistance pushed federal district and appellate judges to turn that possibility into a reality. The impact of this saga on litigation practice extended beyond school desegregation, and even beyond the struggle for African-American equality; through implementation of Brown, the nation’s litigants, lawyers, and judges grew accustomed both to issuance of permanent injunctions against state and local public institutions, and to extended court oversight of ...


Understanding The Establishment Clause: The Perspective Of Constitutional Litigation, Robert A. Sedler Jan 1997

Understanding The Establishment Clause: The Perspective Of Constitutional Litigation, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.


Regulation Of Water Use And Takings—The Government Lawyer’S Perspective, Richard M. Frank Jun 1994

Regulation Of Water Use And Takings—The Government Lawyer’S Perspective, Richard M. Frank

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

11 pages.

Contains 3 pages of references.


Searching For Basinwide Solutions To Endangered Species Problems Of The South Platte Of Colorado, James S. Lochhead Jun 1994

Searching For Basinwide Solutions To Endangered Species Problems Of The South Platte Of Colorado, James S. Lochhead

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

42 pages (includes illustrations and map).

Contains endnotes.


Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel Jan 1990

Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel

Scholarly Works

As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs' view of public policy ...


Declaratory Action The Next Step Beyond Equity, Edwin Borchard Jan 1946

Declaratory Action The Next Step Beyond Equity, Edwin Borchard

Faculty Scholarship Series

It is a commonplace that the equitable jurisdiction of the Court of Chancery owes its origin (a) to the inflexibility and rigidity of the common law; (b) to the inelasticity of the common law procedure; and (c) to the ineffectiveness or inadequacy of the remedies provided by the common law. It is not so well known that the same limitations, especially after the merger of law and equity, explain the necessity for relief from the restrictions of equity. Whereas it was intended that equity should be flexible, elastic, and effective in meeting all situations (thus, the Constitution of 1787 itself ...


Shall The Executive Agreement Replace The Treaty, Edwin Borchard Jan 1944

Shall The Executive Agreement Replace The Treaty, Edwin Borchard

Faculty Scholarship Series

In recent years many political leaders and publicists have sought to prove that the treaty-making process, requiring the "undemocratic." valid and desirable preferably without congressional approval or, by a majority of Congress. 1300 executive agreements have been concluded history, as contrasted 900 i8 that up to 1928 only 15 for good reasons; treaties have been amended by have benefited the nation.

BASES OF THE PROPOSALS FOR CHANGE

The recent proposals for a change in the Constitution, either with or without benefit of a constitutional amendment, have their origin in several grievances and are said to derive moral support from several ...


Justiciability, Edwin Borchard Jan 1936

Justiciability, Edwin Borchard

Faculty Scholarship Series

It might be supposed that justiciability, the very foundation of the judicial function, would be a matter on which courts could hardly differ. Yet there seems to be the greatest confusion among the courts as to when an issue is and is not susceptible of judicial decision. This is largely due to a devotion to phrases and symbols which make historical investigation and theoretical analysis seem an unnecessary encroachment on the judicial prerogative. The very system of stare decisis invites courts to relieve themselves of the necessity of thinking through again ostensible propositions which seem to have once received the ...


The Constitutionality Of Declaratory Judgments, Edwin Borchard Jan 1931

The Constitutionality Of Declaratory Judgments, Edwin Borchard

Faculty Scholarship Series

It is not uncommon in the United States for opponents of statutory reform, or even defendants against unwelcome suits, to advance the objection of unconstitutionality. Declaratory judgment statutes have not escaped this custom. Although it will strike an informed student as strange that the procedure for the rendering of declaratory judgments should be attacked as unconstitutional, the fact is that the issue has been raised in a number of American cases, though never in any other country. The special ground asserted has been that the declaratory judgment imposes on the courts powers non-judicial in character and that it requires them ...