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Articles 1 - 30 of 121
Full-Text Articles in Law
Original Intent And Article Iii, Michael L. Wells, Edward J. Larson
Original Intent And Article Iii, Michael L. Wells, Edward J. Larson
Scholarly Works
Article III of the United States Constitution sets limits on the ability of the legislature to expand or contract the jurisdiction of the federal courts. The Supreme Court has generally held that Article III's restraints on the power of the legislature to restrict the jurisdiction of the federal courts are few and extremely permissive. Many scholars, however, argue that Article III imposes some strong limitations on the legislature's ability to define federal jurisdiction. Strangely, both sides of the debate rely on originalist arguments. This Article argues that reliance on the Framers' intent to resolve issues of federal courts law is …
Securing Deliberative Autonomy, James E. Fleming
Securing Deliberative Autonomy, James E. Fleming
Faculty Scholarship
In this article, Professor Fleming proposes to tether the right of autonomy by grounding it within a constitutional constructivism, a guidingframeworkfor constitutional theory with two fundamental themes: deliberative democracy and deliberative autonomy. He advances deliberative autonomy as a unifying theme that shows the coherence and structure of certain substantive liberties on a list of familiar "unenumerated" fundamental rights (commonly classed under privacy, autonomy, or substantive due process). The bedrock structure of deliberative autonomy secures basic liberties that are significant preconditions for persons' ability to deliberate about and make certain fundamental decisions affecting their destiny, identity, or way of life. As …
The First Stone Of The Death Penalty, Bruce Ledewitz
The First Stone Of The Death Penalty, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
Sexual Psychopath Legislation: Is There Anywhere To Go But Backwards?, Andrew Horwitz
Sexual Psychopath Legislation: Is There Anywhere To Go But Backwards?, Andrew Horwitz
Law Faculty Scholarship
No abstract provided.
State Constitutions, School Finance Litigation, And The "Third Wave": From Equity To Adequacy, Michael Heise
State Constitutions, School Finance Litigation, And The "Third Wave": From Equity To Adequacy, Michael Heise
Cornell Law Faculty Publications
No abstract provided.
A Comment On Text, Time And Audience Understanding In Constitutional Law, Michael C. Dorf
A Comment On Text, Time And Audience Understanding In Constitutional Law, Michael C. Dorf
Cornell Law Faculty Publications
No abstract provided.
The "Burden" Of Proof In Federal Habeas Litigation, J. Thomas Sullivan
The "Burden" Of Proof In Federal Habeas Litigation, J. Thomas Sullivan
Faculty Scholarship
No abstract provided.
Commerce Clause Restraints On State Taxation After Jefferson Lines, Walter Hellerstein, Michael J. Mcintyre, Richard D. Pomp
Commerce Clause Restraints On State Taxation After Jefferson Lines, Walter Hellerstein, Michael J. Mcintyre, Richard D. Pomp
Scholarly Works
The Supreme Court's 1977 decision in Complete Auto Transit, Inc. v. Brady signaled a paradigmatic shift in the Court's approach to state tax adjudication under the dormant Commerce Clause. In Complete Auto, the Court repudiated the formalistic school of interpretation that once had governed Commerce Clause analysis of state taxation because it bore ‘no relationship to economic realities.’ In its place, the Court embraced a decisional framework that ‘considered not the formal language of the tax statute but rather its practical effect.’ In furtherance of this objective, the Court suggested a four-part test to guide the constitutional analysis of state …
Section 7: Constitutional Structure: Federalism, Administrative Law, Checks And Balances, Institute Of Bill Of Rights Law, William & Mary Law School
Section 7: Constitutional Structure: Federalism, Administrative Law, Checks And Balances, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Shifts And Implications Of Federalism For Civil Rights, J. Clay Smith Jr.
Shifts And Implications Of Federalism For Civil Rights, J. Clay Smith Jr.
Selected Speeches
No abstract provided.
"Neither Force Nor Will", Lewis H. Larue
State Constitutional Litigation, Educational Finance, And Legal Impact: An Empirical Analysis, Michael Heise
State Constitutional Litigation, Educational Finance, And Legal Impact: An Empirical Analysis, Michael Heise
Cornell Law Faculty Publications
No abstract provided.
Censorship Of Cyberspace A Personal Choice, I. Trotter Hardy
Censorship Of Cyberspace A Personal Choice, I. Trotter Hardy
Popular Media
No abstract provided.
Justice William Johnson And The History Of Supreme Court Dissent, Meredith Kolsky Lewis
Justice William Johnson And The History Of Supreme Court Dissent, Meredith Kolsky Lewis
Journal Articles
No abstract provided.
Order Flow Cases: Jurisdiction, Preemption And Securities Laws, Richard L. Stone, Francis J. Facciolo
Order Flow Cases: Jurisdiction, Preemption And Securities Laws, Richard L. Stone, Francis J. Facciolo
Faculty Publications
(Excerpt)
Primary jurisdiction and preemption issues arise in securities class action litigation when alleged violations of state law arise from conduct that is either explicitly or implicitly regulated by the federal securities laws.
These are two distinct theories: one is a matter of administrative law and judicial economy (primary jurisdiction); the other is a matter of constitutional law involving the Supremacy Clause (preemption). To date, there has not been extensive case law involving preemption and the federal securities laws (other than in the blue sky and tender offer areas) and there has been almost no case law on primary jurisdiction …
Responsibility, Causation, And The Harm-Benefit Line In Takings Jurisprudence, Glynn S. Lunney Jr
Responsibility, Causation, And The Harm-Benefit Line In Takings Jurisprudence, Glynn S. Lunney Jr
Faculty Scholarship
As one of the guarantees provided in the Bill of Rights, the Fifth Amendment's Compensation Clause restricts government's otherwise largely plenary power over privately-held property rights. While the Compensation Clause does not directly limit government's ability to change, modify, or even eliminate existing privately-held property rights, in certain instances it circumscribes government's ability to force individual property owners to bear the cost of such government-imposed changes. Specifically, for those government-imposed property redistributions found to be "takings" within the meaning of the Compensation Clause, the Fifth Amendment requires federal and state governments to compensate the property holder for the taking, and …
The New Federalism, Richard C. Reuben
The New Federalism, Richard C. Reuben
Faculty Publications
the 10th Amendment was something they noted for the bar exam and then promptly forgot about. But for many conservative lawyers and politicians, the 10th Amendment- which reserves to the states all powers not given to the federal government-has been anything but academic. For them, it embodies the founders' promise for a nation in which the states and federal government are near-equal partners. And they have fought long and hard to give the amendment its proper due. As the rise of House Speaker Newt Gingrich, R-Ga., and his Contract with America attest, their day may have finally come. Today, federalism, …
Dangerous Misperceptions: Protecting Police Officers, Society, And The Fourth Amendment Right To Personal Security, Kathryn R. Urbonya
Dangerous Misperceptions: Protecting Police Officers, Society, And The Fourth Amendment Right To Personal Security, Kathryn R. Urbonya
Faculty Publications
No abstract provided.
Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder
Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder
Journal Articles
This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning for all …
Double Jeopardy And The Fraudulently-Obtained Acquittal, David S. Rudstein
Double Jeopardy And The Fraudulently-Obtained Acquittal, David S. Rudstein
All Faculty Scholarship
No abstract provided.
The Separation Of The Religious And The Secular: A Foundational Challenge To First Amendment Theory, Laura S. Underkuffler
The Separation Of The Religious And The Secular: A Foundational Challenge To First Amendment Theory, Laura S. Underkuffler
Cornell Law Faculty Publications
No abstract provided.
Constitutional Torts: Combining Diverse Doctrines And Practicality, Thomas A. Eaton, Michael Wells
Constitutional Torts: Combining Diverse Doctrines And Practicality, Thomas A. Eaton, Michael Wells
Scholarly Works
Constitutional Torts is, in part, a response to our sense that the upper level curriculum could be improved by courses that bring together areas of doctrine that are often studied in isolation. We think there is substantial value in bringing together seemingly disparate areas of doctrine that bear on a common real-world problem. Students benefit from learning how to put together concepts from different substantive areas in order to solve problems they will face in practice.
On The 'Fruits' Of Miranda Violations, Coerced Confessions, And Compelled Testimony, Yale Kamisar
On The 'Fruits' Of Miranda Violations, Coerced Confessions, And Compelled Testimony, Yale Kamisar
Articles
Professor Akhil Reed Amar and Ms. Renee B. Lettow have written a lively, provocative article that will keep many of us who teach constitutional-criminal procedure busy for years to come. They present a reconception of the "first principles" of the Fifth Amendment, and they suggest a dramatic reconstruction of criminal procedure. As a part of that reconstruction, they propose, inter alia, that at a pretrial hearing presided over by a judicial officer, the government should be empowered to compel a suspect, under penalty of contempt, to provide links in the chain of evidence needed to convict him.
Cruelly Unusual, Bruce Ledewitz
Cruelly Unusual, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
Pa. Justices Were Wrong To Fill Spot, Bruce Ledewitz
Pa. Justices Were Wrong To Fill Spot, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
The Supreme Court's Land Use Decisions (Symposium - The Supreme Court And Local Government Law, 1993-94 Term), Leon D. Lazer
The Supreme Court's Land Use Decisions (Symposium - The Supreme Court And Local Government Law, 1993-94 Term), Leon D. Lazer
Scholarly Works
No abstract provided.
Liberating Commercial Speech: Product Labeling Controls And The First Amendment, Lars Noah, Barbara A. Noah
Liberating Commercial Speech: Product Labeling Controls And The First Amendment, Lars Noah, Barbara A. Noah
Faculty Scholarship
As federal regulators impose increasing limits on what manufacturers may say about their products, constitutional protections for commercial speech become ever more important. Indeed, the United States Supreme Court's most recent First Amendment decisions suggest meaningful regard for the value of advertising and labeling as types of protected expression. At the same time, however, federal lawmakers are imposing ever more onerous restrictions on promotional activities and product labeling. The Authors discuss federal law relating to regulation of product labeling.
Recent Developments In Pennsylvania Death Penalty Law, Bruce Ledewitz
Recent Developments In Pennsylvania Death Penalty Law, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.
The Progeny Of Lee V. Weisman: Can Student-Invited Prayer At Public School Graduation Still Be Constitutional?, Thomas A. Schweitzer
The Progeny Of Lee V. Weisman: Can Student-Invited Prayer At Public School Graduation Still Be Constitutional?, Thomas A. Schweitzer
Scholarly Works
No abstract provided.
Balanced Scholarship And Racial Balance, Brian K. Landsberg
Balanced Scholarship And Racial Balance, Brian K. Landsberg
McGeorge School of Law Scholarly Articles
Professor Landsberg presents a responsive essay to Kirk Kennedy's Race-Exclusive Scholarships: Constitutional Vel Non. Professor Landsberg argues for the preservation of the Supreme Court's balanced approach to assessing the validity of affirmative action programs. Landsberg notes approvingly that the Court "has carefully avoided absolutes in deciding affirmative action cases," and criticizes Mr. Kennedy for his support of an absolute, all-or-nothing approach to race-exclusive scholarships. Landsberg argues first, that Regents of the University of California v. Bakke remains good law and that universities should not be enjoined from all race-conscious decisionmaking; second, that race-exclusive scholarships may, in narrow circumstances, be …