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Articles 1 - 5 of 5
Full-Text Articles in Law
Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen
Historical Framework For Reviving Constitutional Protection For Property And Contract Rights , James L. Kainen
Faculty Scholarship
Post-New Deal constitutionalism is in search of a theory that justifies judicial intervention on behalf of individual rights while simultaneously avoiding the charge of "Lochnerism."' The dominant historical view dismisses post-bellum substantive due process as an anomalous development in the American constitutional tradition. Under this approach, Lochner represents unbounded protection for economic rights that permitted the judiciary to read laissez faire, pro-business policy preferences into the constitutional text. Today's revisionists have mounted a substantial challenge to the dismissive views of traditionalists. Indeed, some claim Lochner reached the right result, but for the wrong reason. The revisionists characterize substantive due process …
Using Comparative Fault To Replace The All-Or-Nothing Lottery Imposed In Intentional Torts Suits In Which Both Plaintiff And Defendant Are At Fault , Gail D. Hollister
Using Comparative Fault To Replace The All-Or-Nothing Lottery Imposed In Intentional Torts Suits In Which Both Plaintiff And Defendant Are At Fault , Gail D. Hollister
Faculty Scholarship
All or nothing. For years this idea of absolutes has been a hallmark of tort law despite the inequities it has caused. Plaintiffs must either win a total victory or suffer total defeat. In recent years courts and legislatures have begun to recognize the injustice of the all-or-nothing approach and to replace it with rules that permit partial recoveries that are more equitably tailored to the particular facts of each case. The most dramatic example of this more equitable approach is the nearly universal rejection of contributory negligence in favor of comparative fault in negligence cases. Almost all jurisdictions, however, …
Chase Court And Fundamental Rights: A Watershed In American Constitutionalism, The , Robert J. Kaczorowski
Chase Court And Fundamental Rights: A Watershed In American Constitutionalism, The , Robert J. Kaczorowski
Faculty Scholarship
Three weeks before he died in May 1873, the frail and ailing Salmon P. Chase joined three of his brethren in dissent in one of the most important cases ever decided by the United States Supreme Court, the Slaughter-House Cases.1 This decision was a watershed in United States constitutional history for several reasons. Doctrinally, it represented a rejection of the virtually unanimous decisions of the lower federal courts upholding the constitutionality of revolutionary federal civil rights laws enacted in the aftermath of the Civil War. Institutionally, it was an example of extraordinary judicial activism in overriding the legislative will of …
The Race Factor And Trial By Jury, Kenneth Conboy
The Race Factor And Trial By Jury, Kenneth Conboy
Fordham Urban Law Journal
The institution of trial by jury in criminal cases, one of the great achievements in the history of civilization and a principal foundation of our federal constitutional order, is to day under challenge by two different by interrelated developments in American courtrooms. The first is the development of a broad national imperative to eliminate all aspects of racism in American legal, political, and social life. The second is the heightened scrutiny that electronic media presence is applying to the jury system. This essay explores the utility and fairness of the American trial jury and its premise as a democratic and …
The Urban Criinal Justice System & The Juror's Perception, David Lewis
The Urban Criinal Justice System & The Juror's Perception, David Lewis
Fordham Urban Law Journal
The criminal justice system is anchored in its belief that twelve citizens are capable of working together to sift through the most difficult and complicated information without any preconception or bias to arrive at a "just" result. In this essay, the author explores the diverse perceptions the various actors in a courtroom (prosecutor, defense lawyer, police officer, jurors) and discusses how these views form an integral part of the courtroom dynamic.