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

Law Commons

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

Articles 1 - 9 of 9

Full-Text Articles in Law

Conflicts Between The Commander In Chief And Congress: Concurrent Power Over The Conduct Of War, Jules Lobel Nov 2007

Conflicts Between The Commander In Chief And Congress: Concurrent Power Over The Conduct Of War, Jules Lobel

University of Pittsburgh School of Law Working Paper Series

The Bush Administration argues that the Commander in Chief has exclusive power to decide what military tactics to use to defeat a wartime enemy. The Administration’s constitutional position that Congress may not permissibly interfere with these Executive Commander in Chief powers has been heavily criticized, particularly with respect to the Executive power to interrogate prisoners or engage in warrantless wiretapping on American citizens and its argument that Congress cannot limit the Iraq war. Yet, many critics concur in the Administration’s starting point—that the President has exclusive authority over battlefield operations.

This article challenges that assumption. It argues ...


Conflicts Between The Commander In Chief And, Jules Lobel Nov 2007

Conflicts Between The Commander In Chief And, Jules Lobel

University of Pittsburgh School of Law Working Paper Series

The Bush Administration argues that the Commander in Chief has exclusive power to decide what military tactics to use to defeat a wartime enemy. The Administration’s constitutional position that Congress may not permissibly interfere with these Executive Commander in Chief powers has been heavily criticized, particularly with respect to the Executive power to interrogate prisoners or engage in warrantless wiretapping on American citizens and its argument that Congress cannot limit the Iraq war. Yet, many critics concur in the Administration’s starting point—that the President has exclusive authority over battlefield operations.

This article challenges that assumption. It argues ...


Search Me?, John Burkoff Aug 2007

Search Me?, John Burkoff

University of Pittsburgh School of Law Working Paper Series

Professor Burkoff contends that most people who purportedly “consent” to searches by law enforcement officers are not really – "freely and voluntarily," as the Supreme Court decisional law supposedly requires – consenting to such searches. Yet, absent unusual circumstances, the great likelihood is that a court nonetheless will conclude that such consent was valid and any evidence seized admissible under the Fourth Amendment.

Professor Burkoff argues, however, that the Supreme Court’s 2006 decision in Georgia v. Randolph now dictates that the application of consent law doctrine should reflect the actual voluntariness (or involuntariness) of the questioned consents that come before the ...


Of Cops And Bumper Stickers: Notes Toward A Theory Of Selective Prosecution, Richard Delgado Aug 2007

Of Cops And Bumper Stickers: Notes Toward A Theory Of Selective Prosecution, Richard Delgado

University of Pittsburgh School of Law Working Paper Series

The author, Professor Richard Delgado, takes as his point of departure a remark by the chair of the Colorado committee that voted academic sanctions against Ward Churchill. This essay explores the role of retaliatory motives in academic misconduct cases.

In Churchill’s case, Colorado authorities delved deeply and painstakingly into Churchill’s publications only when it appeared that the state could not fire him from his tenured position for his inflammatory remarks on the victims of the 9/11 tragedy. What bearing should the investigation’s relation to the hue and cry that led to it have on its own ...


Shooting The Messenger, Richard Delgado Oct 2006

Shooting The Messenger, Richard Delgado

University of Pittsburgh School of Law Working Paper Series

This essay reviews Ward Churchill’s "On the Justice of Roosting Chickens: Reflections on the Consequences of U.S. Imperial Arrogance and Criminality" (2003).

One of the most talked about — but least read — books of recent years, "On the Justice of Roosting Chickens" documents a long history of U.S. wars, invasions, and violations of international law on the way to concluding that when the terrible events of 9/11 took place, the U.S. deserved and should have expected retribution. In popular language, we "had it coming."

As the reader may recall, when Hamilton College rescinded Churchill’s invitation ...


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 ...


The Thirteenth Amendment Enforcement Authority, Alexander Tsesis Feb 2005

The Thirteenth Amendment Enforcement Authority, Alexander Tsesis

University of Pittsburgh School of Law Working Paper Series

In the paper, I argue that the Thirteenth Amendment's enforcement clause grants Congress the power to enact statutes to protect liberty. I trace the American concept of liberty, using archival research, through the writings of the revolutionary framers and abolitionists. I believe that the Thirty-Eighth Congress, 1864-1865, intended the Thirteenth Amendment to provide the power to enforce the Declaration of Independence's and Preamble's guarantees of equal liberty. The paper also places the enforcement clause of the Thirteenth Amendment into the contemporary setting of recent decisions on the Fourteenth Amendment and the Commerce Clause.


When Equality Leaves Everyone Worse Off: The Problem Of Leveling Down In Equality Law, Deborah L. Brake Nov 2004

When Equality Leaves Everyone Worse Off: The Problem Of Leveling Down In Equality Law, Deborah L. Brake

University of Pittsburgh School of Law Working Paper Series

This Article addresses the problem of leveling down as a response to discrimination. Existing case law and legal scholarship generally assume that inequality may be remedied in one of two ways: improving the lot of the disfavored group to match that of the most favored group, or worsening the treatment of the favored group until they fare as badly as everyone else. The term “leveling down” refers to the latter response. This Article contends that courts and commentators have overstated the flexibility of equality rights in accepting leveling down as a response to inequality, and proposes a new framework that ...


Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John Parry Jul 2004

Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John Parry

University of Pittsburgh School of Law Working Paper Series

Using the Supreme Court's decision last Term in Chavez v. Martinez as a launching pad, this article reveals and addresses fundamental tensions in constitutional interpretation, the law of interrogation, and civil rights litigation. First, this article highlights the importance of remedies to the definition of constitutional rights, which compels us to jettison the idea of prophylactic rules and accept Congress's role in constitutional interpretation. Armed with these insights, the article next considers the law of coercive interrogation. I explain why the privilege against self-incrimination is more than a trial right, and I redefine the central holding of Miranda ...