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

Law Commons

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

2000

Constitutional law

Discipline
Institution
Publication
Publication Type
File Type

Articles 1 - 30 of 45

Full-Text Articles in Law

More Than Just A Private Affair: Is The Practice Of Incarcerating Alaska Prisoners In Private Out-Of-State Prisons Unconstitutional?, Shymeka L. Hunter Dec 2000

More Than Just A Private Affair: Is The Practice Of Incarcerating Alaska Prisoners In Private Out-Of-State Prisons Unconstitutional?, Shymeka L. Hunter

Alaska Law Review

No abstract provided.


The Idea Of The Common Law In West Virginia Jurisprudential History: Morningstar V. Black & Decker Revisited, James Audley Mclaughlin Dec 2000

The Idea Of The Common Law In West Virginia Jurisprudential History: Morningstar V. Black & Decker Revisited, James Audley Mclaughlin

West Virginia Law Review

No abstract provided.


The Remarkable Career Of Joe Grano, Robert A. Sedler Oct 2000

The Remarkable Career Of Joe Grano, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.


Constitutional Approaches To Privatization: An Inquiry Into The Magnitude Of Neo-Liberal Constitutionalism, David Schneiderman Oct 2000

Constitutional Approaches To Privatization: An Inquiry Into The Magnitude Of Neo-Liberal Constitutionalism, David Schneiderman

Law and Contemporary Problems

Schneiderman discusses whether constitutional rules in the state capitalist mode that redistribute property ownership more widely can survive the pressures generated by the neo-liberal model of constitutionalism. Schneiderman considers privatization programs that concern the divestiture of state assets, or denationalization through the sale of shares or assets to employees and employee associations.


Assessing The New Judicial Minimalism, Christopher J. Peters Oct 2000

Assessing The New Judicial Minimalism, Christopher J. Peters

All Faculty Scholarship

In this article, which has been published in slightly revised form at 100 Colum. L. Rev. 1454 (2000), I critique some recently prominent arguments for "judicial minimalism" in constitutional decisionmaking. Current minimalist arguments, I contend, are primarily "policentric," that is, focused on the role the judiciary can play in bolstering the accountability and deliberativeness of the political branches. Drawing in part on a previous article, I offer an alternative approach to minimalism that is "juricentric" - focused on the inherent democratic legitimacy of the adjudicative process and the unique competence of that process to produce decisions about individual rights. I argue ...


The Jurisprudence Of Tradition And Justice Scalia's Unwritten Constitution, J. Richard Broughton Sep 2000

The Jurisprudence Of Tradition And Justice Scalia's Unwritten Constitution, J. Richard Broughton

West Virginia Law Review

No abstract provided.


Impeachment As Congressional Constitutional Interpretation, Neal Kumar Katyal Apr 2000

Impeachment As Congressional Constitutional Interpretation, Neal Kumar Katyal

Law and Contemporary Problems

Katyal argues that one can adhere to originalism in the context of judicial interpretation and, nevertheless, believe in a broader style of interpretation for the legislature. He illustrates the point with three examples--the roles of history, precedent, and moral philosophy--in discussing the case of Pres Bill Clinton's impeachment.


Suing States For Money: Constitutional Remedies After Alden And Florida Prepaid, Michael Wells Apr 2000

Suing States For Money: Constitutional Remedies After Alden And Florida Prepaid, Michael Wells

Scholarly Works

On June 23, 1999, the Supreme Court handed down three noteworthy decisions bearing on the law of constitutional remedies. Alden v. Maine struck down an attempt by Congress, acting under its Article I powers, to subject states to suits in state court on federal statutory grounds. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank curbed Congress' power under Section 5 of the Fourteenth Amendment to authorize suits against state governments on constitutional grounds, reasoning that a case cannot be made for the federal cause of action unless state law remedies are inadequate. A companion case, College Savings Bank ...


The President And Choices Not To Enforce, Peter L. Strauss Apr 2000

The President And Choices Not To Enforce, Peter L. Strauss

Law and Contemporary Problems

Strauss explores the context of executive non-enforcement in a broad way that may help in understanding situations in which the President believes a particular statute is inconsistent with one or another provision of the Constitution and, therefore, should not be enforced.


Constitutionalism In The Shadow Of Doctrine: The President’S Non-Enforcement Power, David Barron Apr 2000

Constitutionalism In The Shadow Of Doctrine: The President’S Non-Enforcement Power, David Barron

Law and Contemporary Problems

Barron challenges the court-centered approach to the scope of the President's non-enforcement power. He contends that a President, notwithstanding that he considers himself bound by the Supreme Court's constitutional interpretations, should resolve three distinct questions in determining whether he may faithfully decline to enforce a statute by virtue of its unconstitutionality.


The Clinton Administration And War Powers, Lori Fisler Damrosch Apr 2000

The Clinton Administration And War Powers, Lori Fisler Damrosch

Law and Contemporary Problems

Damrosch compares the record of the Clinton Administration with those of its predecessors, after first briefly locating US war powers practice in the context of crossnational comparisons. Pres Clinton has been more respectful of Congress's constitutional role than either Pres Reagan or Pres Bush, yet less successful in persuading Congress to exercise the responsibility that goes along with the claim of constitutional power.


The Scope Of “High Crimes And Misdemeanors” After The Impeachment Of President Clinton, Neil Kinkopf Apr 2000

The Scope Of “High Crimes And Misdemeanors” After The Impeachment Of President Clinton, Neil Kinkopf

Law and Contemporary Problems

Kinkopf believes that the House of Representatives' decision to impeach Pres Clinton on the charge that he committed perjury before the grand jury, a charge that did not involve official conduct, was proper. Even though Pres Clinton's misconduct was not a proper basis for impeachment or conviction, his case demonstrates that if would be terribly unwise to understand official misconduct to be a necessary element of a high crime or misdemeanor.


The Special Constitutional Structure Of The Federal Impeachment Process, Michael J. Gerhardt Apr 2000

The Special Constitutional Structure Of The Federal Impeachment Process, Michael J. Gerhardt

Law and Contemporary Problems

Gerhardt offers a general explanation of the federal impeachment process and relates it to the impeachment of Pres Bill Clinton. The first feature of the constitutional allocation of power for impeachment and removal is that it facilitates and rewards a pragmatic or flexible analysis and impedes a formalistic analysis of the fundamental question at the core of Pres Clinton's impeachment proceedings--whether his conduct constituted a "high Crime or Misdemeanor."


Writing Off Race, Girardeau A. Spann Apr 2000

Writing Off Race, Girardeau A. Spann

Law and Contemporary Problems

Because the US Constitution says absolutely nothing about affirmative action, the Supreme Court should have absolutely nothing to say about it either. Rather, the political branches should set the nation's affirmative action policy, and they should do so with political leadership provided by the President. Spann considers Pres Clinton's record on affirmative action.


Indirect Constitutional Discourse: A Comment On Meese, Robert F. Nagel Apr 2000

Indirect Constitutional Discourse: A Comment On Meese, Robert F. Nagel

Law and Contemporary Problems

Nagel responds to Alan J. Meese's comments on Pres Clinton's actions following the Supreme Court's decision in "Regents of the University of California v. Bakke." While the Clinton Administration's strategy does not produce the best possible form of constitutional dialogue, it does produce another recognizable form of dialogue, one full of confusion and hypocrisy but a surprisingly central and entrenched part of the practice of judicial review itself.


An Economic Analysis Of The Religious Freedom Restoration Act, Travis C. Wheeler Apr 2000

An Economic Analysis Of The Religious Freedom Restoration Act, Travis C. Wheeler

Law and Contemporary Problems

As an attempt by Congress to overturn a Supreme Court ruling by statute, the Religious Freedom Restoration Act (RFRA), although passed by a congressional landslide, was one of the most controversial pieces of legislation passed during Bill Clinton's presidency. Wheeler examines RFRA from a law and economics perspective to show that, as a method by which Congress attempted to impose its definition of a constitutional right upon the courts, the Act was inefficient.


Foreword, Neil Kinkopf Apr 2000

Foreword, Neil Kinkopf

Law and Contemporary Problems

No abstract provided.


Presidential Non-Enforcement Of Constitutionally Objectionable Statutes, Dawn E. Johnsen Apr 2000

Presidential Non-Enforcement Of Constitutionally Objectionable Statutes, Dawn E. Johnsen

Law and Contemporary Problems

Johnsen considers the legitimacy of what he terms "presidential non-enforcement," that is, whether and when the President may disobey an unambiguous congressional command enacted in conformity with the constitutionally prescribed lawmaking process on the ground that the President believes the law is unconstitutional.


The Supreme Court's "New" Federalism: An Anti-Rights Agenda?, Mitchell F. Crusto Mar 2000

The Supreme Court's "New" Federalism: An Anti-Rights Agenda?, Mitchell F. Crusto

Georgia State University Law Review

No abstract provided.


The Case For Including Marks V. United States In The Canon Of Constitutional Law, Maxwell L. Stearns Jan 2000

The Case For Including Marks V. United States In The Canon Of Constitutional Law, Maxwell L. Stearns

Faculty Scholarship

In this essay, I would like to suggest adding a single case, with appropriate commentary, to the canon of constitutional law, as presented in introductory casebooks. Specifically, I suggest including Marks v. United States, as a principal case, or in the form of a detailed summary, immediately before or after the first major plurality decision. I should note that the case is rather short – nine pages in the U.S. Reports – and that it nominally involves obscenity doctrine. I would suggest, counterintuitively perhaps, that the case is more fruitfully presented toward the beginning of an introductory course in constitutional law ...


The Constitution Of Europe, By Joseph H. H. Weiler, Edward A. Mearns Jr. Jan 2000

The Constitution Of Europe, By Joseph H. H. Weiler, Edward A. Mearns Jr.

Case Western Reserve Journal of International Law

available after review at page 163


Families And Federalism, Sylvia Law Jan 2000

Families And Federalism, Sylvia Law

Washington University Journal of Law & Policy

This Essay asks: When, as a matter of common sense, experience, and public policy, should family law issues be resolved as a matter of federal, rather than state law? Many political actors confront this question today. Advocates ask Congress to decide whether a federal response to a family law question is desirable, and the Supreme Court, in interpreting the act of Congress, must choose between deference to state discretion and affirmation of federal authority.


Due Process And Fundamental Rights, Martin A. Schwartz Jan 2000

Due Process And Fundamental Rights, Martin A. Schwartz

Scholarly Works

No abstract provided.


Why A Fundamental Right To A Quality Education Is Not Enough, James G. Wilson Jan 2000

Why A Fundamental Right To A Quality Education Is Not Enough, James G. Wilson

Law Faculty Articles and Essays

This article relies upon the political and economic analysis of such great thinkers as Aristotle and Rousseau to understand and normatively evaluate constitutional caselaw in general and education cases in particular. The article's title contains its conclusion: a judicially created right to a quality education is a laudable, but possibly counterproductive and definitely insufficient condition, for creating a humane constitutional system. The rest of society needs to do far more to protect the average citizen and worker from the ever-ravenous ruling class. All the edification in the world will not mean much if there are only a few decent ...


Decide The Law, Clearly - A Reply To Judge Bettman, Ben Glassman Jan 2000

Decide The Law, Clearly - A Reply To Judge Bettman, Ben Glassman

Cleveland State Law Review

The Honorable Marianna Brown Bettman’s dilemma is roughly this: if a clause of a state constitution is worded similarly to a clause in the federal Constitution, how can a state court develop constitutional law? But in important respects, Judge Bettman's question reflects a misunderstanding of the law. This misunderstanding prevents her from identifying what is really at stake in cases like the one she describes. Judge Bettman seems to have misread Michigan v. Long. The Long Court laid out a clear test for determining the Supreme Court's appellate jurisdiction over state cases where the grounds-federal or state-of ...


Prosecution Of Christian Scientists: A Needed Protection For Children Or Insult Added To Injury, Daniel Vaillant Jan 2000

Prosecution Of Christian Scientists: A Needed Protection For Children Or Insult Added To Injury, Daniel Vaillant

Cleveland State Law Review

A young child is dead. The death occurred because the parents refused to take their child to a doctor. Now, ordinarily, this refusal to obtain medical attention for a dying child would result in immediate indictments against the parents for involuntary manslaughter. But what if the parents are Christian Scientists? This question of whether Scientists should be treated differently because of their faith is a very controversial one in America today. If we allow the Scientists to practice their religion without government interference, children who could be medically treated and possibly saved may die. If, on the other hand, we ...


Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman Jan 2000

Formalism And Realism In Commerce Clause Jurisprudence, Barry Cushman

Journal Articles

This Article attempts a reconceptualization of developments in Commerce Clause jurisprudence between the Civil War and World War II by identifying ways in which that jurisprudence was structurally related to and accordingly deeply influenced by the categories of substantive due process and dormant Commerce Clause doctrine. Antecedent dormant Commerce Clause jurisprudence set the terms within which Commerce Clause doctrine was worked out; coordinate developments in substantive due process doctrine set limits upon the scope of Commerce Clause formulations and thus played a critical and underappreciated role in maintaining the federal equilibrium. The subsequent erosion of those due process limitations vastly ...


Law As Interpretation, Charles W. Collier Jan 2000

Law As Interpretation, Charles W. Collier

UF Law Faculty Publications

In this Article, I shall trace out separate professional narratives in common law, constitutional law, and in legal cases turning on the distinction between community and society (Part III). But first I should like to situate these legal-professional narratives within a broader interdisciplinary framework (Part II).


The Canon(S) Of Constitutional Law: An Introduction, Mark V. Tushnet Jan 2000

The Canon(S) Of Constitutional Law: An Introduction, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

Any discipline has a canon, a set of themes that organize the way in which people think about the discipline. Or, perhaps, any discipline has a number of competing canons. Is there a canon of constitutional law? A group of casebook authors met in December 1999 to discuss the choices they had made - what they had decided to include, what to exclude, what they regretted excluding (or including), what principles they used in developing their casebooks. Most of the authors were affiliated with law schools, but some had developed coursebooks for use in undergraduate political science and constitutional history courses ...


The Empty State And Nobody's Market: The Political Economy Of Non-Responsibility And The Judicial Disappearing Of The Civil Rights Movement, Kenneth M. Casebeer Jan 2000

The Empty State And Nobody's Market: The Political Economy Of Non-Responsibility And The Judicial Disappearing Of The Civil Rights Movement, Kenneth M. Casebeer

University of Miami Law Review

No abstract provided.