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Full-Text Articles in Law
Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib
Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib
Faculty Scholarship
The Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking—for Civil Procedure, for Criminal Procedure, and for Appellate Procedure—the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation …
Can The Fourth Amendment Keep People "Secure In Their Persons"?, Bruce A. Green
Can The Fourth Amendment Keep People "Secure In Their Persons"?, Bruce A. Green
Faculty Scholarship
No abstract provided.
Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent
Judicial Review For Enemy Fighters: The Court’S Fateful Turn In Ex Parte Quirin, The Nazi Saboteur Case, Andrew Kent
Faculty Scholarship
The emerging conventional wisdom in the legal academy is that individual rights under the U.S. Constitution should be extended to noncitizens outside the United States. This claim - called globalism in my article - has been advanced with increasing vigor in recent years, most notably in response to legal positions taken by the Bush administration during the war on terror. Against a Global Constitution challenges the textual and historical grounds advanced to support the globalist conventional wisdom and demonstrates that they have remarkably little support. At the same time, the article adduces textual and historical evidence that noncitizens were among …
Constitution And The Laws Of War During The Civil War, The Federal Courts, Practice & Procedure, Andrew Kent
Constitution And The Laws Of War During The Civil War, The Federal Courts, Practice & Procedure, Andrew Kent
Faculty Scholarship
This Article uncovers the forgotten complex of relationships between the U.S. Constitution, citizenship and the laws of war. The Supreme Court today believes that both noncitizens and citizens who are military enemies in a congressionally-authorized war are entitled to judicially-enforceable rights under the Constitution. The older view was that the U.S. government’s military actions against noncitizen enemies were not limited by the Constitution, but only by the international laws of war. On the other hand, in the antebellum period, the prevailing view was U.S. citizenship should carry with it protection from ever being treated as a military enemy under the …
Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski
Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski
Faculty Scholarship
A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …