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

Law Commons

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

2005

Constitutional Law

Journal

Institution
Keyword
Publication

Articles 1 - 30 of 212

Full-Text Articles in Law

The "New Judicial Federalism" Before Its Time: A Comprehensive Review Of Economic Substantive Due Process Under State Constitutional Law Since 1940 And The Reasons For Its Recent Decline, Anthony B. Sanders Dec 2005

The "New Judicial Federalism" Before Its Time: A Comprehensive Review Of Economic Substantive Due Process Under State Constitutional Law Since 1940 And The Reasons For Its Recent Decline, Anthony B. Sanders

American University Law Review

The coming of the New Deal may have spelled the end of the Lochner era in the federal courts, but in the state courts Lochner's doctrine of economic substantive due process lives on. Since the New Deal, courts in almost every state have rebuffed the United States Supreme Court and have interpreted their own state constitutions' due process clauses to provide substantive protections to economic liberties. This Article presents a comprehensive survey of state court use of economic substantive due process since the New Deal. It includes an enumeration of every instance since 1940 of a state court of highest …


Banging On The Backdoor Draft: The Constitutional Validity Of Stop-Loss In The Military, Evan M. Wooten Dec 2005

Banging On The Backdoor Draft: The Constitutional Validity Of Stop-Loss In The Military, Evan M. Wooten

William & Mary Law Review

No abstract provided.


Homegrown Child Pornography And The Commerce Clause: Where To Draw The Line On Interstate Production Of Child Pornography, Lauren Bianchini Dec 2005

Homegrown Child Pornography And The Commerce Clause: Where To Draw The Line On Interstate Production Of Child Pornography, Lauren Bianchini

American University Law Review

No abstract provided.


Congress And Terri Schiavo: A Primer On The American Constitutional Order, Michael P. Allen Dec 2005

Congress And Terri Schiavo: A Primer On The American Constitutional Order, Michael P. Allen

West Virginia Law Review

No abstract provided.


Small Hope Floats: How The Lower Courts Have Sunk The Right Of Privacy, Stephanie D. Taylor Dec 2005

Small Hope Floats: How The Lower Courts Have Sunk The Right Of Privacy, Stephanie D. Taylor

West Virginia Law Review

No abstract provided.


Up Against The Wall Of Separation: The Question Of American Religious Democracy, Bruce Ledewitz Dec 2005

Up Against The Wall Of Separation: The Question Of American Religious Democracy, Bruce Ledewitz

William & Mary Bill of Rights Journal

No abstract provided.


The Fear Factor: How Fcc Fines Are Chilling Free Speech, Noelle Coates Dec 2005

The Fear Factor: How Fcc Fines Are Chilling Free Speech, Noelle Coates

William & Mary Bill of Rights Journal

No abstract provided.


Constitutionality Of Testing High School Male Athletes For Steroids Under Vernonia School District V. Acton And Board Of Education V. Earls, Thomas Proctor Dec 2005

Constitutionality Of Testing High School Male Athletes For Steroids Under Vernonia School District V. Acton And Board Of Education V. Earls, Thomas Proctor

BYU Law Review

No abstract provided.


The Market For Legal Education And Freedom Of Association: Why The "Solomon Amendment" Is Constitutional And Law Schools Are Not Expressive Associations, Andrew P. Morriss Dec 2005

The Market For Legal Education And Freedom Of Association: Why The "Solomon Amendment" Is Constitutional And Law Schools Are Not Expressive Associations, Andrew P. Morriss

William & Mary Bill of Rights Journal

This term the Supreme Court will confront the constitutionality of the Solomon Amendment, which mandates equal access for military recruiters at universities that accept federal funding. The Third Circuit previously held the statute unconstitutional. This Article argues that the Court should reverse and uphold the statute because the lower court failed to consider the cartelized nature of legal education and so assumed that law schools are "expressive associations" entitled to assert First Amendment claims; the court also failed to give proper deference to Congress's exercise of its Article I power to raise and support armies and over-valued law faculties' interest …


Cleaning Up The Eighth Amendment Mess, Tom Stacy Dec 2005

Cleaning Up The Eighth Amendment Mess, Tom Stacy

William & Mary Bill of Rights Journal

This article criticizes the Court's interpretation of the Eighth Amendment's Cruel and Unusual Punishment Clause and offers its own understanding. The Court's jurisprudence is plagued by deep inconsistencies concerning the Amendment's text, the Court's own role, and a constitutional requirement of proportionate punishment. In search of ways to redress these fundamental shortcomings, the article explores three alternative interpretations of the Clause: (1) a textualist approach; (2) Justice Scalia's understanding that the Clause forbids only punishments unacceptable for all offenses; and (3) a majoritarian approach that would consistently define cruel and unusual punishment in terms of legislative judgments and penal custom. …


Turning A Government Search Into A Permanent Power: Thornton V. United States And The "Progressive Distortion" Of Search Incident To Arrest, George M. Dery Iii, Michael J. Hernandez Dec 2005

Turning A Government Search Into A Permanent Power: Thornton V. United States And The "Progressive Distortion" Of Search Incident To Arrest, George M. Dery Iii, Michael J. Hernandez

William & Mary Bill of Rights Journal

No abstract provided.


"So Long As Our System Shall Exist": Myth, History, And The New Federalism, Paul D. Moreno Dec 2005

"So Long As Our System Shall Exist": Myth, History, And The New Federalism, Paul D. Moreno

William & Mary Bill of Rights Journal

This article provides the broad historical context necessary to understand contemporary developments in federalism doctrine. It shows that dual federalism has a long and varied history and that federalism is a content-neutral principle to which both sides in major political contests have appealed. It seeks to show that the predominant perspective on federalism today - that it is an inherently conservative principle - is the result of historical misperception. This article reinterprets the history of American federalism in light of recent historical scholarship concerning various periods: principally the country's founding; slavery, the Civil War, and Reconstruction; the late nineteenth-century social …


A Convenient Blanket Of Secrecy: The Oft-Cited But Nonexistent Housekeeping Privilege, William Bradley Russell Jr. Dec 2005

A Convenient Blanket Of Secrecy: The Oft-Cited But Nonexistent Housekeeping Privilege, William Bradley Russell Jr.

William & Mary Bill of Rights Journal

No abstract provided.


Storming The Castle To Save The Children: The Ironic Costs Of A Child Welfare Exception To The Fourth Amendment, Doriane Lambelet Coleman Nov 2005

Storming The Castle To Save The Children: The Ironic Costs Of A Child Welfare Exception To The Fourth Amendment, Doriane Lambelet Coleman

William & Mary Law Review

No abstract provided.


Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai Nov 2005

Taking The Stand: The Lessons Of The Three Men Who Took The Japanese American Internment To Court, Lorraine K. Bannai

Seattle Journal for Social Justice

No abstract provided.


Ten Commandments, Nine Judges, And Five Versions Of One Amendment - The First. ("Now What?"), William W. Van Alstyne Oct 2005

Ten Commandments, Nine Judges, And Five Versions Of One Amendment - The First. ("Now What?"), William W. Van Alstyne

William & Mary Bill of Rights Journal

No abstract provided.


The Historical Amendability Of The American Constitution: Speculations On An Empirical Problematic, Darren R. Latham Oct 2005

The Historical Amendability Of The American Constitution: Speculations On An Empirical Problematic, Darren R. Latham

American University Law Review

No abstract provided.


Are Property Owners Constitutionally Entitled To Compensation For Environmental Remediation Funds?, Andrew Hysell Oct 2005

Are Property Owners Constitutionally Entitled To Compensation For Environmental Remediation Funds?, Andrew Hysell

Buffalo Environmental Law Journal

No abstract provided.


Constitutional Law—First Amendment And Freedom Of Thought—Banishing Sex Offenders: Seventh Circuit Upholds Sex Offender's Ban From Public Parks After Thinking Obscene Thoughts About Children. Doe V. City Of Lafayette, 377 F.3d 757 (7th Cir. 2004)., Elizabeth Cloud Oct 2005

Constitutional Law—First Amendment And Freedom Of Thought—Banishing Sex Offenders: Seventh Circuit Upholds Sex Offender's Ban From Public Parks After Thinking Obscene Thoughts About Children. Doe V. City Of Lafayette, 377 F.3d 757 (7th Cir. 2004)., Elizabeth Cloud

University of Arkansas at Little Rock Law Review

No abstract provided.


Ohio Issue 1 Is Unconstitutional, Wilson Huhn Oct 2005

Ohio Issue 1 Is Unconstitutional, Wilson Huhn

North Carolina Central Law Review

No abstract provided.


Federalism, The Commerce Clause, And The Constitutionality Of The Unborn Victims Of Violence Act Of 2004, Ryan R. Wilmering Oct 2005

Federalism, The Commerce Clause, And The Constitutionality Of The Unborn Victims Of Violence Act Of 2004, Ryan R. Wilmering

Indiana Law Journal

No abstract provided.


Beyond Presumptions And Peafowl: Reconciling The Legal Principle Of Equality With The Pedagogical Benefits Of Gender Differentiation, Michael J. Kaufman Oct 2005

Beyond Presumptions And Peafowl: Reconciling The Legal Principle Of Equality With The Pedagogical Benefits Of Gender Differentiation, Michael J. Kaufman

Buffalo Law Review

No abstract provided.


Aid And Comfort: Rasul V. Bush And The Separation Of Powers Doctrine In Wartime, Ryan Mckaig Oct 2005

Aid And Comfort: Rasul V. Bush And The Separation Of Powers Doctrine In Wartime, Ryan Mckaig

Campbell Law Review

By failing to recognize the challenges facing political and military leaders in the wake of the September 11, 2001 attacks, in reversing fifty-four years of precedent relied upon by the executive branch, and in failing to consider the political question doctrine, the Supreme Court in Rasul charted a dangerous constitutional course that could lead to greater judicial involvement in war-making powers and greater levels of conflict among the three branches. These trends will ultimately threaten the nation's ability to fight and win future wars. The decision is ill-advised, ill-timed, and invites unintended consequences.


To Improve The State And Condition Of Man: The Power To Police And The History Of American Governance, Christopher Tomlins Oct 2005

To Improve The State And Condition Of Man: The Power To Police And The History Of American Governance, Christopher Tomlins

Buffalo Law Review

Book review of Markus Dirk Dubber's The Police Power: Patriarchy and the Foundations of American Government


Where Does Forum For Academic And Institutional Rights V. Rumsfeld Leave Military Recruiting Efforts?, Angel M. Overgaard Oct 2005

Where Does Forum For Academic And Institutional Rights V. Rumsfeld Leave Military Recruiting Efforts?, Angel M. Overgaard

Buffalo Law Review

No abstract provided.


Signatures Of Ideology: The Case Of The Supreme Court's Criminal Docket, Ward Farnsworth Oct 2005

Signatures Of Ideology: The Case Of The Supreme Court's Criminal Docket, Ward Farnsworth

Michigan Law Review

Everyone suspects that Supreme Court justices' own views of policy play a part in their decisions, but the size and nature of the part is a matter of vague impression and frequent dispute. Do their preferences exert some pressure at the margin or are they better viewed as the mainsprings of decision? The latter claim, identified with legal realism, has been lent some support by political scientists who point out that some justices regularly vote for or against certain kinds of claims (for example, under the Fourth Amendment), or that votes in some areas are broadly predictable according to a …


Testing Minimalism: A Reply, Cass R. Sunstein Oct 2005

Testing Minimalism: A Reply, Cass R. Sunstein

Michigan Law Review

Some judges are less ambitious than others; they have minimalist tendencies. Minimalists are unambitious along two dimensions. First, they seek to rule narrowly rather than broadly. In a single case, they do not wish to resolve other, related problems that might have relevant differences. They are willing to live with the costs and burdens of uncertainty, which they tend to prefer to the risks of premature resolution of difficult issues. Second, minimalists seek to rule shallowly rather than deeply, in the sense that they favor arguments that do not take a stand on the foundational debates in law and politics. …


The Supreme Court And The Ten Commandments: Compounding The Establishment Clause Confusion, Jay A. Sekulow, Francis J. Manion Oct 2005

The Supreme Court And The Ten Commandments: Compounding The Establishment Clause Confusion, Jay A. Sekulow, Francis J. Manion

William & Mary Bill of Rights Journal

No abstract provided.


The Supreme Court And The Federalist Papers: Is There Less Here Than Meets The Eye?, Melvyn R. Durchslag Oct 2005

The Supreme Court And The Federalist Papers: Is There Less Here Than Meets The Eye?, Melvyn R. Durchslag

William & Mary Bill of Rights Journal

No abstract provided.


Upholding The Unbroken Tradition: Constitutional Acknowledgment Of The Ten Commandments In The Public Square, Greg Abbott Oct 2005

Upholding The Unbroken Tradition: Constitutional Acknowledgment Of The Ten Commandments In The Public Square, Greg Abbott

William & Mary Bill of Rights Journal

No abstract provided.