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

Law Commons

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

1992

Washington University in St. Louis

Constitutional law -- United States

Articles 1 - 2 of 2

Full-Text Articles in Law

Preemption Of Bivens Claims: How Clearly Must Congress Speak?, Betsy J. Grey Jan 1992

Preemption Of Bivens Claims: How Clearly Must Congress Speak?, Betsy J. Grey

Washington University Law Review

Part I of this Article demonstrates that the Court's approach to congressional remedial schemes has changed significantly since Bivens. Part II of the Article investigates whether this change in approach is warranted by the principle that, when filling gaps in federal legislation (i.e., creating federal common law), the Court should exercise caution because it is acting in an area primarily entrusted to Congress. In Part III, the Article contrasts the Court's approach in the Bivens line of cases to its approach in the federal-state preemption area, where the Court is faced with a similar problem of determining ...


The Bill Of Rights: The Next 200 Years, Geoffrey R. Stone Jan 1992

The Bill Of Rights: The Next 200 Years, Geoffrey R. Stone

Washington University Law Review

Why is prediction so difficult? After all, even if we reject the static concept of original intent, constitutional interpretation is "law," and "law" should have some element of constancy, certainty, and predictability. What, then, is the problem? The problem is time. In fact, law, even constitutional law, is generally quite constant, certain, and predictable-if we look at it in relatively short time-bites. But over decades, to say nothing of centuries, law, and especially constitutional law, is unpredictable in the extreme.