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Articles 1 - 30 of 40
Full-Text Articles in Law
The Historical Amendability Of The American Constitution: Speculations On An Empirical Problematic, Darren R. Latham
The Historical Amendability Of The American Constitution: Speculations On An Empirical Problematic, Darren R. Latham
American University Law Review
No abstract provided.
Some Reflections On The Symposium: Judging, The Classical Legal Paradigm And The Possible Contributions Of Science, Christina E. Wells
Some Reflections On The Symposium: Judging, The Classical Legal Paradigm And The Possible Contributions Of Science, Christina E. Wells
Faculty Publications
One theme running through the many excellent contributions to this symposium involves the myriad influences on judicial decision-making. As Professor Wrightsman notes, Supreme Court Justices' personal characteristics may affect their ability to influence colleagues and, consequently, the outcome of Supreme Court decisions. Professor Ruger observes that judges have both attitudinal and jurisprudential preferences that may change over time, affecting legal outcomes differently as time passes. Professor Sisk similarly notes that judges' personal values and experiences influence their decision-making. These observations are consistent with those of numerous other scholars, who find wide-ranging and diverse influences on the judicial resolution of legal …
… And On ‘Constitution Day’, What To Celebrate?, Alan E. Garfield
… And On ‘Constitution Day’, What To Celebrate?, Alan E. Garfield
Alan E Garfield
No abstract provided.
The Treaty Establishing A Constitution For Europe And The Democratic Legitimacy Of The European Union, Elisabeth Zoller
The Treaty Establishing A Constitution For Europe And The Democratic Legitimacy Of The European Union, Elisabeth Zoller
Indiana Journal of Global Legal Studies
No abstract provided.
A Government Of Limited Powers, Carl E. Schneider
A Government Of Limited Powers, Carl E. Schneider
Articles
Roscoe C. Filburn owned a small farm in Ohio where he raised poultry, dairy cows, and a modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. The Agricultural Adjustment Act of 1938 limited the wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits. Mr. Filburn sued. He said Claude Wickard, the Secretary of Agriculture, could not enforce the AAI's limits because Congress lacked authority to regulate wheat grown for one's own use. He reasoned: In our federal system, the states …
Noncompete Clauses In Georgia: An Economic Analysis, Jeffrey T. Rickman
Noncompete Clauses In Georgia: An Economic Analysis, Jeffrey T. Rickman
Georgia State University Law Review
No abstract provided.
Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben
Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben
Faculty Publications
Scholars have approached arbitration, especially under the Federal Arbitration Act, from a variety of perspectives, including doctrinal, historical, empirical, and practical. One aspect that has not yet been fully considered, however, is the relationship between arbitration and constitutional democracy. Yet, as a dispute-resolution process that is often sanctioned by the government, that sometimes inextricably intertwines governmental and private conduct, and that derives its legitimacy from the government, it is appropriate--indeed, our responsibility--to ask whether arbitration furthers the goals of democratic governance. It is only sensible that state-supported dispute resolution in a democracy should strengthen, rather than diminish, democratic governance and …
Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin
Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin
Scholarly Works
No abstract provided.
Federal Judicial Selection: The First Decade, Maeva Marcus
Federal Judicial Selection: The First Decade, Maeva Marcus
University of Richmond Law Review
No abstract provided.
Falsities On The Senate Floor, John Cornyn
Falsities On The Senate Floor, John Cornyn
University of Richmond Law Review
No abstract provided.
Perdue V. Baker: Who Has The Ultimate Power Over Litigation On Behalf Of The State Of Georgia--The Governor Or The Attorney General, Erin L. Penn
Georgia State University Law Review
No abstract provided.
Does The Constitution Apply To The Actions Of The United States Anti-Doping Agency?, Dionne L. Koller
Does The Constitution Apply To The Actions Of The United States Anti-Doping Agency?, Dionne L. Koller
Saint Louis University Law Journal
No abstract provided.
It’S More Than A Constitution, Mark R. Killenbeck
It’S More Than A Constitution, Mark R. Killenbeck
Saint Louis University Law Journal
No abstract provided.
Dampening The Illegitimacy Of The United States' Government: Reframing The Constitution From Contract To Promise, Malla Pollack
Dampening The Illegitimacy Of The United States' Government: Reframing The Constitution From Contract To Promise, Malla Pollack
Malla Pollack
Realistic political philosophers working in the United States face a serious problem. The public accepts as axiomatic the fundamental status of the 1789 Constitution. That Constitution, however, even as amended, is blatantly illegitimate, thus undermining any theoretical claim that citizens should respect (as opposed to obey) the existing national government. This paper tenders a method for shoring up the legitimacy of the federal government through the Constitution-as-promise. Realism is central to this project; I am discussing the words of the ratified document with its twenty-seven Article V-created amendments. I am not taking the common path of deflecting problems by building …
Federal Land Retention And The Constitution's Property Clause: The Original Understanding, Robert G. Natelson
Federal Land Retention And The Constitution's Property Clause: The Original Understanding, Robert G. Natelson
Robert G. Natelson
This article examines the original meaning of the Constitution's clauses authorizing federal land ownership. It finds that the power granted to Congress was broad enough to include land ownership for enumerated purposes, even without complying the procedures necessary for the creation of federal enclaves. But it finds that the power was not broad enough to include indefinite landholding for unenumerated purposes.
The Israeli Constitutional Revolution/Evolution, Models Of Constitutions, And A Lesson Frommistakes And Achievements, Yoseph M. Edrey Prof.
The Israeli Constitutional Revolution/Evolution, Models Of Constitutions, And A Lesson Frommistakes And Achievements, Yoseph M. Edrey Prof.
Yoseph M. Edrey
There are some fundamental preconditions entailed in the process of becoming a democratic state. The mere existence of a written document entitled "Constitution" is not enough; a society is entitled to be considered a democratic state by the international community only if its legal sys- tem contains two attributes-the recognition of basic human rights and the idea that basic human rights are protected by some type of judicial review performed by an independent court system. Further- more, it would be better if these basic human rights were enumerated in a written constitution. Nonetheless, based on the Social Contract concept, the …
If I Implore You And Order You To Set Me Free, Robert Blecker
If I Implore You And Order You To Set Me Free, Robert Blecker
NYLS Law Review
No abstract provided.
Constitutional Shadows: The Missing Narrative In Indian Law, Frank Pommersheim
Constitutional Shadows: The Missing Narrative In Indian Law, Frank Pommersheim
Frank Pommersheim
No abstract provided.
The Constitutional Failing Of The Anticybersquatting Act, Ned Snow
The Constitutional Failing Of The Anticybersquatting Act, Ned Snow
Faculty Publications
Eminent domain and thought control are occurring in cyberspace. Through the Anticybersquatting Consumer Protection Act (ACPA), the government transfers domain names from domain-name owners to private parties based on the owners' bad-faith intent. The owners receive no just compensation. The private parties who are recipients of the domain names are trademark holders whose trademarks correspond with the domain names. Often the trademark holders have no property rights in those domain names: trademark law only allows mark holders to exclude others from making commercial use of their marks; it does not allow mark holders to reserve the marks for their own …
Compromising Liberty: A Structural Critique Of The Sentencing Guidelines, Jackie Gardina
Compromising Liberty: A Structural Critique Of The Sentencing Guidelines, Jackie Gardina
University of Michigan Journal of Law Reform
This Article contends that the federal sentencing guidelines-whether mandatory or discretionary-violate the constitutional separation of powers by impermissibly interfering with a criminal jury's constitutional duty to act as a check against government overreaching. This Article posits that the inclusion of the criminal jury in Article III of the Constitution was intended as an inseparable element of the constitutional system of checks and balances. This Article also submits a proposal for restoring the constitutional balance through the creation of a "guideline jury system" within the current guideline structure. The implementation of a guideline jury system would fill the constitutional void created …
Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne
Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
The Impact Of International Human Rights Developments On Sexual Minority Rights, Arthur S. Leonard
The Impact Of International Human Rights Developments On Sexual Minority Rights, Arthur S. Leonard
NYLS Law Review
No abstract provided.
Does A Computer's Choice Of Where To Reside Implicate The Dormant Commerce Clause?, Robert J. Firestone
Does A Computer's Choice Of Where To Reside Implicate The Dormant Commerce Clause?, Robert J. Firestone
NYLS Law Review
No abstract provided.
Roper V. Simmons And Our Constitution In International Equipoise, Roger P. Alford
Roper V. Simmons And Our Constitution In International Equipoise, Roger P. Alford
Journal Articles
In Roper v. Simmons, the Court unequivocally affirms the use of comparative constitutionalism to interpret the Eighth Amendment. It does not, however, provide an obvious theoretical basis to justify the practice. This Article searches for a theory to explain the comparativism in Roper using the theories advanced in the author's previous scholarship. It concludes that of the colorable candidates, natural law constitutionalism is the most plausible explanation, with the attendant problems associated therewith. The Article concludes with an analysis of the possible ramifications of the Court's comparative approach, suggesting that it may be pursuing a Constitution that is in international …
Sacred Visions Of Law, Robert Tsai
Sacred Visions Of Law, Robert Tsai
Articles in Law Reviews & Other Academic Journals
Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our constitutional faith. This article answers the call by examining how two legal symbols - Marbury v. Madison and Brown v. Board of Education - have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the article argues that the decisions have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that …
Groh V. Ramirez: Strengthening The Fourth Amendment Particularity Requirement, Weakening Qualified Immunity, C. Brandon Rash
Groh V. Ramirez: Strengthening The Fourth Amendment Particularity Requirement, Weakening Qualified Immunity, C. Brandon Rash
University of Richmond Law Review
No abstract provided.
Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen
Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen
Michigan Journal of International Law
This Article’s purpose is to examine the revision debates through the lens of recent scholarship on constitutional decisionmaking to see what lessons might be drawn about constitutionalism in Japan and elsewhere. In Part I, the author discusses Article 9's text and interpretation and focus on three controversies: first, Japan's ability to use force to defend itself and the related issue of the constitutionality of the Japan Self Defense Force (SDF); second, Japan's ability to engage in collective self-defense, which impacts the state's security relationship with the United States under the U.S.-Japan Mutual Security Agreement; and finally, Japan's ability to participate …
Worth Doing Well- The Improvable European Union Constitution, Stephen C. Sieberson
Worth Doing Well- The Improvable European Union Constitution, Stephen C. Sieberson
Michigan Journal of International Law
As background for this critique of the Constitution, Part II of this Article provides a brief overview of the existing EU Treaties, their shortcomings, and the political processes that culminated in the creation of the new Constitution. Of particular interest are certain goals articulated for the new document, such as the desire to replace the complex Treaties with a simpler, more approachable instrument. Part III is a summary of the Constitution's textual content, details that are necessary to illuminate the analysis that follows. Part IV offers a critical review of the awkward manner in which the Constitution is organized. In …
Holmes On The Lochner Court, Gerald F. Leonard
Holmes On The Lochner Court, Gerald F. Leonard
Faculty Scholarship
For this symposium on Lochner, I examined the jurisprudence of the man commonly thought to be the Lochner majority's fiercest foe, Justice Oliver Wendell Holmes, Jr. Holmes wrote the famous dissent in Lochner and other cases of the era. But as Barry Cushman notes in his contribution to this symposium, Holmes joined many a Lochner-era majority in striking down any number of economic regulations. Holmes's Fourteenth Amendment opinions suggest: 1) that, while Holmes advocated a somewhat more pointed rule of deference to legislatures than did most of his colleagues, his language in this respect was far less radical than is …
Federal Land Retention And The Constitution's Property Clause: The Original Understanding, Robert G. Natelson
Federal Land Retention And The Constitution's Property Clause: The Original Understanding, Robert G. Natelson
University of Colorado Law Review
No abstract provided.