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

Law Commons

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

Series

Constitutional Law

2003

Discipline
Institution
Publication

Articles 1 - 24 of 24

Full-Text Articles in Law

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman Dec 2003

Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman

Rutgers Law School (Newark) Faculty Papers

In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the ...


Too Close To The Rack And The Screw: Constitutional Constraints On Torture In The War On Terror, Seth F. Kreimer Nov 2003

Too Close To The Rack And The Screw: Constitutional Constraints On Torture In The War On Terror, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


Eldred, The First Amendment, And Aggressive Copyright Claims, Alfred C. Yen Oct 2003

Eldred, The First Amendment, And Aggressive Copyright Claims, Alfred C. Yen

Boston College Law School Faculty Papers

This Essay studies the effect of Eldred v. Ashcroft on the treatment of aggressive copyright claims. Aggressive copyright claims test the boundaries of copyright by urging courts to adopt unconventional or novel readings of doctrine that would extend copyright well beyond its core of preventing individuals from reproducing the copyrighted works of others. Accordingly, aggressive copyright claims are often made against defendants who have done more than simply "parrot" a copyrighted work. These defendants have generally added meaningful work of their own, whether in the form of comment and criticism, significant reworking of the plaintiff's material, or new material ...


Life And Death Decision-Making: Judges V. Legislators As Sources Of Law In Bioethics, Charles H. Baron Jul 2003

Life And Death Decision-Making: Judges V. Legislators As Sources Of Law In Bioethics, Charles H. Baron

Boston College Law School Faculty Papers

In some situations, courts may be better sources of new law than legislatures. Some support for this proposition is provided by the performance of American courts in the development of law regarding the “right to die.” When confronted with the problems presented by mid-Twentieth Century technological advances in prolonging human life, American legislators were slow to act. It was the state common law courts, beginning with Quinlan in 1976, that took primary responsibility for gradually crafting new legal principles that excepted withdrawal of life-prolonging treatment from the application of general laws dealing with homicide and suicide. These courts, like the ...


Attitudes About Attitudes, Michael J. Gerhardt May 2003

Attitudes About Attitudes, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Same-Sex Union Announcements: Precis On A Not So Picayune Matter, James M. Donovan May 2003

Same-Sex Union Announcements: Precis On A Not So Picayune Matter, James M. Donovan

Law Faculty Scholarly Articles

Although some newspapers have voluntarily begun to publish same-sex union announcements, others will continue in their traditional exclusionary practices. Some of those papers can anticipate being accused in court of unlawful discrimination where the law allows that cause of action. Reflexively, those newspapers will in turn erect a defensive shield from such charges by appealing, at least in part, to the First Amendment.

This comment examines the viability of that defense. The set-piece for the discussion are the details of a complaint, described in Part I, lodged against the Times-Picayune by a lesbian couple that was denied access to its ...


Same-Sex Union Announcements: Whether Newspapers Must Publish Them, And Why We Should Care, James M. Donovan Apr 2003

Same-Sex Union Announcements: Whether Newspapers Must Publish Them, And Why We Should Care, James M. Donovan

Law Faculty Scholarly Articles

The recent decision by the New York Times to publish same-sex union announcements brought to national attention the struggle of gay men and lesbians to gain access to this contested space. To date only about ten percent of newspapers allow same-sex couples to publish announcements on terms equal to heterosexual couples. Although some couples have sued to have their announcements published, these claims have been rejected as interfering with the newspaper's First Amendment protections. This article considers whether the First Amendment's Free Press and Free Speech clauses in fact allow newspapers to discriminate in this way.

The article ...


Property As A Fundamental Constitutional Right? The German Example, Gregory S. Alexander Mar 2003

Property As A Fundamental Constitutional Right? The German Example, Gregory S. Alexander

Cornell Law Faculty Working Papers

This article examines an apparent paradox in comparative constitutional law. Property rights are not treated as a fundamental right in American constitutional law; they are, however, under the Basic Law (i.e., constitution) of Germany, a social-welfare state that otherwise gives less weight to property. The article uses this apparent paradox as a vehicle for considering the different reasons why constitutions protect property. It explains the difference between the German and American constitutional treatment of property on the basis of the quite different approaches taken in the two systems to the purposes of constitutional protection of property.


Technological Advances Leading To The Diminishing Of Privacy Rights, Anabelle Maria D'Souza Mar 2003

Technological Advances Leading To The Diminishing Of Privacy Rights, Anabelle Maria D'Souza

LLM Theses and Essays

The Purpose of this thesis is to bring about the awareness of the importance of privacy in our lives. Privacy is an essential element of a free society without which individuals would lose the ability to interact with one another in private. With the advancement in police surveillance technology there is a clash between an individuals right to keep a secret and the State’s power to penetrate that secret. State of the art technologies such as the financial crimes enforcement network, wearable computing and surveillance cameras are some of the latest devices invading privacy. These technological advances have become ...


Ideological Conflict And The First Amendment, Steven J. Heyman Feb 2003

Ideological Conflict And The First Amendment, Steven J. Heyman

All Faculty Scholarship

According to the prevailing view, constitutional interpretation ideally should consist in the development and application of a single, unified set of principles. This Essay challenges this position in the context of free speech jurisprudence. As the constitutional debates of 1787-91 show, the First Amendment and the Bill of Rights did not reflect a single view, but instead were intended to reconcile conflicting views on the proper relationship between liberty and government. In order to obtain the broad support necessary for adoption, the Bill of Rights was deliberately drafted on the level of general principles that could command a consensus. When ...


Circuit-Specific Application Of The Internal Revenue Code: An Unconstitutional Tax, Jeffrey S. Kinsler Jan 2003

Circuit-Specific Application Of The Internal Revenue Code: An Unconstitutional Tax, Jeffrey S. Kinsler

Law Faculty Scholarship

For all practical purposes, the Constitution prescribes only one limit on the federal government's power to tax: the Uniformity Clause, which requires that indirect taxes, such as income and excise taxes, be "uniform throughout the United States ... " It is exceedingly rare for a federal tax law to violate the Uniformity Clause. The Internal Revenue Code does not fix different taxes for different states, as Congress has carefully crafted the tax laws to avoid geographical distinctions. Unfortunately, the Internal Revenue Service ("IRS") has not always been so careful. In recent years, the IRS has adopted a practice of applying different ...


The Continuing Importance Of Congressman John A. Bingham And The Fourteenth Amendment, Richard L. Aynes Jan 2003

The Continuing Importance Of Congressman John A. Bingham And The Fourteenth Amendment, Richard L. Aynes

Akron Law Publications

Lead article in a symposium issue.

In the now-famous 1830s chronicle of a visit to America, Alexis de Tocqueville wrote that in America every political issue is ultimately a legal issue in the courts. For Americans who lived through the antislavery and abolitionist era as well as the crisis of the war of 1861-1865, the military victory of the Union forces on the field of battle still left open large political issues. These issues were attempted to be resolved through the political process that produced a legal solution: a constitutional amendment that we currently identify as the Fourteenth Amendment. The ...


The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch Jan 2003

The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch

Faculty Scholarship at Penn Law

No abstract provided.


Quirin Revisited, A. Christopher Bryant, Carl Tobias Jan 2003

Quirin Revisited, A. Christopher Bryant, Carl Tobias

Faculty Articles and Other Publications

In November 2001 President George W. Bush promulgated an Executive Order, premised on Ex Parte Quirin, that authorized the establishment of military commissions as well as purported to eliminate whatever jurisdiction federal courts might have by statute and to deny federal court access to individuals prosecuted or detained for terrorism. This article finds that the profound growth of federal habeas corpus over the last sixty years and the quite narrow holding in Quirin's ultimate determination must guide contemporary application of the precedent. Also, it concludes that federal courts have power not only to assess military commissions' validity in the ...


The Heart Of Federalism: Pretext Review Of Means-End Relationships, J. Randy Beck Jan 2003

The Heart Of Federalism: Pretext Review Of Means-End Relationships, J. Randy Beck

Scholarly Works

Section I of this article seeks to correct a common scholarly misconception regarding the sort of pretext review envisioned by McCulloch v. Maryland. All students of McCulloch understand the decision to call for judicial review of the means-end relationship underlying a federal statute. But McCulloch also indicated that the Court would strike down legislation "should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government." Various constitutional scholars construe this pretext passage to contemplate a second inquiry--separate from the Court's scrutiny of means-end relationships--into whether the legislative motive behind ...


Inference Or Impact? Racial Profiling And The Internment's True Legacy, Eric L. Muller Jan 2003

Inference Or Impact? Racial Profiling And The Internment's True Legacy, Eric L. Muller

Faculty Publications

No abstract provided.


Admissibility Of Fruits Of Breached Evidentiary Privileges: The Importance Of Adversarial Fairness, Party Culpability, And Fear Of Immunity, Robert P. Mosteller Jan 2003

Admissibility Of Fruits Of Breached Evidentiary Privileges: The Importance Of Adversarial Fairness, Party Culpability, And Fear Of Immunity, Robert P. Mosteller

Faculty Publications

No abstract provided.


The Constitution Outside The Courts, Michael J. Gerhardt Jan 2003

The Constitution Outside The Courts, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Takings And Transitions, Holly Doremus Jan 2003

Takings And Transitions, Holly Doremus

Faculty Scholarship

No abstract provided.


The Origins Of Judicial Review, Saikrishna B. Prakash, John C. Yoo Jan 2003

The Origins Of Judicial Review, Saikrishna B. Prakash, John C. Yoo

Faculty Scholarship

Discusses the origins of judicial review in the U.S. Flaws of the assault on judicial review; Discussion of recurring arguments against judicial review; Widespread support for judicial review of state law.


Gun Rights And The Constitutional Significance Of Violent Crime, Jonathan Simon Jan 2003

Gun Rights And The Constitutional Significance Of Violent Crime, Jonathan Simon

Faculty Scholarship

No abstract provided.


The Debate Over War Powers, Mark R. Shulman Jan 2003

The Debate Over War Powers, Mark R. Shulman

Pace Law Faculty Publications

No abstract provided.


Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin Jan 2003

Two Sides Of A "Sargasso Sea": Successive Prosecution For The "Same Offence" In The United States And The United Kingdom, Lissa Griffin

Pace Law Faculty Publications

This article analyzes the U. S. constitutional law interpreting the concept of “same offence.” Included is a survey of the Supreme Court's attempts to interpret constitutional text in order to provide adequate protection for the underlying double jeopardy interest against vexatious reprosecutions, which have frequently produced inconsistent and illogical results. Part III of this article analyzes U.K. law relating to the concept of “same offence,” where the same narrow double jeopardy protection adopted by the U.S. Supreme Court is supplemented with a broad discretion to prevent unfair successive prosecution that constitutes an abuse of process. Part IV ...


The Export Clause, Erik M. Jensen Jan 2003

The Export Clause, Erik M. Jensen

Faculty Publications

This article examines the origins and meaning of the Export Clause in Article I, section 9 of the United States Constitution, which provides that "[n]o Tax or duty shall be laid on Articles exported from any State."

Part I of the article considers the original understanding of the Export Clause, concluding that, without the Clause, the Constitution would not have been adopted. In light of the Export Clause's significance in the constitutional structure, Part II examines the Supreme Court's decisions in United States v. International Business Machines Corp., 517 U.S. 843 (1996) (IBM), and United States ...