Law Commons^™

The Social Origins Of Property, Jack M. Beermann, Joseph William Singer

Faculty Scholarship

The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use.' When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves "to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole."' To determine when a regulation amounts to a "taking" of property …

The Preemption Of State Hazardous And Solid Waste Regulations: The Dormant Commerce Clause Awakens Once More, Michael P. Healy

Law Faculty Scholarly Articles

Last term, for the first time since its watershed decision in Philadelphia v. New Jersey, the Supreme Court considered the extent to which the Commerce Clause of the United States Constitution constrains a state's ability to regulate the disposal of hazardous and solid waste within its borders. In two cases, Chemical Waste Management, Inc. v. Hunt and Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Natural Resources, the Supreme Court acted to limit substantially states’ ability to respond independently to the crisis of solid and hazardous waste disposal. The Article describes the harmful impact of the Court's …

The Tribunal In Albania, John Paul Jones

Law Faculty Publications

Professor Jones explains and critiques "The Organization of Justice and the Constitutional Court," the1992 amendments to Albania's provisional constitution that established the nation's post-revolution judicial system.

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …

Legislative Process And Commercial Law: Lessons From The Copyright Act Of 1976 And The Uniform Commercial Code, Harold R. Weinberg, William J. Woodward Jr.

Law Faculty Scholarly Articles

Overlap and conflict are inevitable in any legal system in which a federal government and state governments both have authority to enact laws. In our federal system, the Constitution's Supremacy Clause identifies federal law as preeminent in case of conflict. When conflict develops and litigation is required to determine whether state or federal law controls the issue at hand, our system analyzes the problem using the term preemption as a basis for analysis.

This Article explores the federal legislative process that precedes judicial preemption decisions. By studying the legislative process for its sensitivity to preemption issues, possible ways to modify …

Identifying, Protecting And Preserving Individual Rights: Traditional Federal Court Functions, Roger J. Miner '56

Constitutional Law

No abstract provided.

A Constitutional Conspiracy Unmasked: Why "No State" Does Not Mean "No State", Mark A. Graber

Faculty Scholarship

No abstract provided.

From The Constitutionality Of Juvenile Curfew Ordinances To A Children's Agenda For The 1990s: Is It Really A Simple Matter Of Supporting Family Values And Recognizing Fundamental Rights?, Michael K. Jordan

Faculty Scholarship

The analysis of the constitutionality of curfew ordinances provides a window into a process that obfuscates rather than clarifies the nature of the constitutional problem. By defining the issue as one governed by rights, we limit our ability to comprehend the larger issue of how the Supreme Court has defined the relationship between minors, the family and society. The issue of the rights of minors as they relate to curfew ordinances offers a measure of solace by reducing the number of disturbing questions which concern cultural change and public policy decisions relating to the family. An understanding of this process …

Severability, John C. Nagle

Journal Articles

When a court holds a provision of a statute unconstitutional, a question remains regarding the validity of the remainder of the statute. The court may find that the unconstitutional provision may be severed from the statute and leave the remainder of the statute in effect. Alternatively, the court may hold that the unconstitutional provision cannot be severed and invalidate the entire statute.

This article argues that the jurisprudence surrounding the issue of severability is confusing and inconsistent. After explaining the concept of severability and its ramifications for statutes, I trace the development of the current judicial test for determining when …

Negotiated Sovereignty: Intergovernmental Agreements With American Indian Tribes As Models For Expanding First Nations’ Self-Government, David H. Getches

Publications

Constitutional issues related to First Nations sovereignty have dominated Aboriginal affairs in Canada for a considerable period. The constitutional entrenchment of Aboriginal self-government has, however, received a setback with the recent failure of the Charlottetown Accord in October of 1992. Nonetheless, day-to-day issues must be accommodated, even while this more fundamental constitutional question remains unresolved. This paper illustrates the American experience with negotiated intergovernmental agreements between tribes and individual states. These agreements have, for example, resolved jurisdictional disputes over taxation, solid waste disposal, and law enforcement between state governments and tribal authorities. The author suggests that these intergovernmental agreements in …

The Right Of The People To Be Secure, Ronald J. Bacigal

Law Faculty Publications

Part I of this Article defines searches and seizures of property and person, discussing the Supreme Court's initially broad interpretation of the Fourth Amendment and its subsequent narrowing in later decisions. Part II discusses several police "chase cases" leading up to the elimination of accidental and attempted seizures from Fourth Amendment protection in Brower v. County of Inyo and California v. Hodari D. Part Ill analyzes the Brower decision and its effect on accidental seizures, concluding that the analysis set forth therein should be abolished and advocating an alternate test. Part IV confronts the Court's elimination of attempted seizures from …

Conservatism And The Rehnquist Court, David F. Forte

Law Faculty Articles and Essays

Now that the Supreme Court has been overwhelmingly staffed by appointees of Republican Presidents, we can ask: To what extent have they been faithful to the original version of the Constitution as articulated during its early years? How have they revivified the structural protections? How have they communicated an ethical sense of their own role in the structure? The answer, unfortunately, is that the record remains disappointing.

The Aspirational Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

Firmly embedded in every theory of judicial decisionmaking lies an important set of assumptions about the way government is supposed to work. Sometimes these theories about government are made explicit. More often they are not. Moreover, deeply embedded in every theory of government is a theory of human nature. Although these assumptions about human nature generally remain latent within the larger theory, because they provide the underpinnings for our ideas about the way government is supposed to work, they drive our notions about judicial decisionmaking. For example, the theory of government reflected in the United States Constitution reveals what one …