Law Commons^™

Constitutional Law—State Employees Have Private Cause Of Action Against Employers Under Family And Medical Leave Act—Nevada Department Of Human Resources V. Hibbs, 538 U.S. 721 (2003)., Gabriel H. Teninbaum

ExpressO

The Eleventh Amendment of the United States Constitution provides that non-consenting states are not subject to suit in federal court. Congress may, however, abrogate the states’ sovereign immunity by enacting legislation to enforce the provisions of the Fourteenth Amendment. In Nevada Department of Human Resources v. Hibbs, the Supreme Court of the United States considered whether Congress acted within its constitutional authority by abrogating sovereign immunity under the Family and Medical Leave Act (FMLA), which allows private causes of action against state employers to enforce the FMLA’s family-leave provision. The Court held abrogation was proper under the FMLA and state …

Human Rights And Copyright: The Introduction Of Natural Law Considerations Into American Copyright Law , Orit Fischman Afori

Fordham Intellectual Property, Media and Entertainment Law Journal

No abstract provided.

Water Marketing In Western Prior Appropriation States: A Model For The East, James L. Huffman

Georgia State University Law Review

No abstract provided.

Thinking Outside The Pandora's Box: Why The Dmca Is Unconstitutional Under Article I §8 Of The U.S. Constitution, Joshua L. Schwartz

ExpressO

No abstract provided.

Questioning Deference, Christina E. Wells

Missouri Law Review

Part I of this Article discusses executive branch actions in the crises discussed earlier and identifies a pattern of response to certain perceived threated. Part II assesses this historical pattern in light of a psychological understanding of risk assessment, concluding that the pattern is consistent with predictably skewed risk assessment. Part III discusses the psychology of accountability and the possibility that judicial review can serve as a mechanism of accountability and improve executive decision making.

Encouraging Courage: Law's Response To Fear And Risk, William B. Fisch

Faculty Publications

Our three papers provide a helpful review of the many things that can go wrong with our system for the protection of civil liberties under the pressures of war or other emergencies. Professor Winfield focuses on the U.S. Attorney General, the non-judicial officer from whom the public might expect the highest fidelity to the law and the constitution. She offers a sobering perspective on the ways in which those expectations can be and have been disappointed. The star of her taxonomy, I take it, is the Leveler, who reaches an independent (and rights-protective!) view of the law and works to …

For The Rest Of Their Lives: Seniors And The Fair Housing Act, Robert G. Schwemm, Michael Allen

Law Faculty Scholarly Articles

America's population is growing older. According to the 2000 census, more than 35 million people in the United States (12% of the total population) are over 65 years old. These figures are expected to grow dramatically in the early decades of the twenty-first century as the "Baby Boom" generation reaches retirement age and as improvements in health care make it possible for more people to live to an advanced age.

Providing housing for this segment of the American population is already a massive industry and one that will certainly grow as the number of, older persons increases. One of the …

Education Elementary And Secondary Education: Authorize The Reading Or Posting Of Certain Writings, Documents, And Records Without Content-Based Censorship Thereof; Provide For Notice To Local School Superintendents; And For Other Purposes, Joshua Brooker, Laura Verduci

Georgia State University Law Review

The bill would have permitted state school boards to allow and encourage their teachers and administrators to read or post in their school building, classrooms, or at any event, documents or any portion of documents that relate to American heritage. The bill would have provided a list of documents, including the Constitution, the Declaration of Independence, the Mayflower Compact, and United States Supreme Court decisions. The bill would have prohibited content-based censorship of American history and heritage-based documents regarding any religious references.

"Perfect Good Faith", Erin Ruble, Gerald Torres

Nevada Law Journal

No abstract provided.

The Democratic Public Domain: Reconnecting The Modern First Amendment And The Original Progress Clause (A.K.A. Copyright And Patent Clause), Malla Pollack

Malla Pollack

Empirical investigation of public usage of the word "progress" in the United States of 1789 demonstrates that the word meant "dissemination." The original meaning of art. I, sec. 8, cl. 8, therefore, is that Congress has the right to grant only such temporally limited exclusive rights in writings and new technology as encourage the dissemination of knowledge and new technology to the population. This article explains the major differences between current United States positive intellectual property law and the logical dictates of this original constitutional meaning. Additionally, the article asserts that the original meaning of clause 8 supports modern calls …

Lawrence's Republic, James E. Fleming

Faculty Scholarship

I am delighted and honored to participate in this symposium critiquing and celebrating the remarkable scholarship of Frank Michelman. I was a student of Frank-but of course we all are students of Frank. I also have had the good fortune to be a colleague of Frank-he has been a distinguished visiting professor at Fordham and has generously participated in a number of our conferences there. The only problem I had in preparing for the symposium is that Frank's scholarship is so rich and wide-ranging that it was difficult to decide what to write about. I initially planned to write a …

The Aretaic Turn In Constitutional Theory, Lawrence B. Solum

ExpressO

“The Aretaic Turn in Constitutional Theory” argues that an institutional approach to theories of constitutional interpretation ought to be supplemented by explicit focus on the virtues and vices of constitutional adjudicators.

Part I, “The Most Dysfunctional Branch,” advances the speculative hypothesis that politicization of the judiciary has led the political branches to exclude consideration of virtue from the nomination and confirmation of Supreme Court Justices and to select Justices on the basis of the strength of their commitment to particular positions on particular issues and the fervor of their ideological passions.

Part II, “Institutionalism and Constitutional Interpretation,” engages Cass Sunstein …

Judicial Independence And The Scope Of Article Iii--A View From The Federalist, Michael G. Collins

University of Richmond Law Review

No abstract provided.

Executive Power Essentialism And Foreign Affairs, Curtis A. Bradley, Martin S. Flaherty

Michigan Law Review

Conflict abroad almost always enhances executive power at home. This expectation has held true at least since the constitutions of antiquity. It holds no less true for modern constitutions, including the Constitution of the United States. Constitutional arguments for executive power likewise escalate with increased perceptions of foreign threat. It is therefore hardly surprising that broad assertions of presidential power have become commonplace after the events of September 11, 2001, and the ensuing war on international terrorism. One perennial weapon in the executive arsenal is the so-called "Vesting Clause" of Article II of the Constitution. This clause, which provides that …

Is Indian Democracy Dependent On A Statute?, Shubhankar Dam

Shubhankar Dam

What is the status of a right to vote in the Indian legal system? Is the right a constitutional/fundamental right? Or is it simply a statutory right? Contrary to the decisions of the Supreme Court in the last five decades, this paper argues that the right to vote is a constitutional right: its textual foundation may be located in Article 326. And, in this sense, the Supreme Court has erred in construing the right to vote as a statutory right under the Representation of Peoples Act, 1951. Interpreting the right to vote as a statutory right has larger implications for …

Constitutional Theory In A Nutshell, Thomas E. Baker

Faculty Publications

This article provides a nutshell description of the leading theories and identifies some of the leading theorists on the Constitution. The unit of currency here is the academic law review article, not the Supreme Court decision. The citations here provide illustrative examples of the vast body of literature. The discussion provides preliminary sketches of an intellectual landscape that is vast and often foreboding to the beginner. This article is organized around three basic interpretative questions: Who has the authority to interpret the Constitution? What are the legitimate sources of meaning for interpreting the Constitution? How is the Constitution interpreted within …

Dr. King, Bull Connor, And Persuasive Narratives, Shaun B. Spencer

Faculty Publications

This article describes an in-class exercise that illustrates the use of persuasive narrative techniques in a U.S. Supreme Court decision. The article first describes the background to the Supreme Court’s decision in Walker v. City of Birmingham. Next, the article examines persuasive narrative techniques through the lens of an in-class exercise in which students identify the Justices’ narrative devices and consider how those devices preview the Justices’ legal arguments. Finally, the article describes why the Walker case and the exercise are valuable not only to teach persuasive narratives, but also to raise broader issues of lawyering and social justice.

The Constitution Should Protect The Right To Same-Sex Marriage, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

Isn't That Unconstitutional? Religion And Professional Life, Amelia J. Uelmen

Amelia J Uelmen

No abstract provided.

The Agency Law Origins Of The Necessary And Proper Clause, Robert G. Natelson

Robert G. Natelson

This is the first of several writings by the author on the original meaning of the Constitution's Necessary and Proper Clause. It explains part of the legal background of the Clause, identifies it as a recital (not an independent grant of power) of the 18th century doctrine of incidental powers, and explains the content of that doctrine. The article has since been updated and supplemented by the author's signed chapters in Lawson, Miller, Natelson & Seidman, The Origins of the Necessary and Proper Clause (Cambridge Univ. Press, 2010).

The General Welfare Clause And The Public Trust: An Essay In Original Understanding, Robert G. Natelson

Robert G. Natelson

This article explains the original meaning/understanding of the Constitution's General Welfare Clause, including the scope of the taxing and spending power granted to Congress

The Constitution And The Public Trust, Robert G. Natelson

Robert G. Natelson

The American Founders believed that public officials were bound by fiduciary obligations, and they wrote that view into the Constitution. This article copiously documents their position.

Private Lands Conservation In Belize, Joan Marsan, University Of Colorado Boulder. Natural Resources Law Center

Books, Reports, and Studies

49 p. : map ; 28 cm

The Constitution At The Threshold Of Life And Death: A Suggested Approach To Accommodate An Interest In Life And A Right To Die, Michael P. Allen

American University Law Review

In the past fifteen years, the United States Supreme Court has decided three cases in which it tentatively began to explore what the United States Constitution has to say about issues that are popularly described as the "right to die." In this article, I suggest that the current state of constitutional analysis does not provide for an effective mechanism for securing an individual's "right to die," at least not without undervaluing a state's interest in the preservation of human life should a state choose to take such a position. In the article, I suggest that it is possible to adopt …

The Jose Padilla Story, Donna R. Newman

NYLS Law Review

No abstract provided.

A Double Due Process Denial: The Crime Of Providing Material Support Or Resources To Designated Foreign Terrorist Organizations, Randolph N. Jonakait

NYLS Law Review

No abstract provided.

Torture, Marcy Strauss

NYLS Law Review

No abstract provided.

The Torture Warrant: A Response To Professor Strauss, Alan M. Dershowitz

NYLS Law Review

No abstract provided.

Judicial Independence In Virginia, W. Hamilton Bryson

University of Richmond Law Review

No abstract provided.

Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam

Articles

In comparative constitutional discourse, Americans are from Mars and Europeans from Venus; we eagerly tell our European counterparts about the U.S. constitutional experience, but rarely do we listen when they talk to us about their own. Whereas Europeans routinely examine U.S. constitutionalism as an illuminating point of comparison or contrast, as Americans, we seem convinced that we have nothing to learn from looking abroad. This Article challenges that assumption. In particular, it argues that American courts and scholars have overlooked an important alternative to the dominant interpretation of the division of powers in the United States by ignoring the theory …