Law Commons^™

Mistakes Precedent And The Rise Of The Administrative State: Toward A Constitutional Theory Of The Second Best , Peter B. Mccutchen

Cornell Law Review

No abstract provided.

Health Care Reform And The Constitutional Limits On Private Accreditation As An Alternative To Direct Government Regulation, Michael J. Astrue

Law and Contemporary Problems

The various subagencies of the HHS have opposing positions on the use of private accreditation in health care regulation, due to their different views of their missions. The use of the private delegation doctrine, an obscure constitutional doctrine, in health care cases in court is examined.

Federalism In The Americas In Comparative Perspective, Keith S. Rosenn

University of Miami Inter-American Law Review

No abstract provided.

Constitutional Law, Seann G. Hazzard, Joshua M. Henderson, Alicia A. Richardson, Michael R. Sullivan

South Carolina Law Review

No abstract provided.

Public Law From The Bottom Up, William N. Eskridge Jr.

West Virginia Law Review

No abstract provided.

One Person One Office: Separation Of Powers Or Separation Of Personnel , Steven G. Calabresi, Joan L. Larsen

Cornell Law Review

No abstract provided.

Ninth Life: An Interpretive Theory Of The Ninth Amendment, Chase J. Sanders

Indiana Law Journal

No abstract provided.

Digging Up New Revenue: Retrospective Estate Taxation And The Omnibus Budget Reconciliation Act, Michael George

West Virginia Law Review

No abstract provided.

Taking The People Seriously , Lackland H. Bloom Jr.

Cornell Law Review

No abstract provided.

Is Purely Retroactive Legislation Limited By The Separation Of Powers?: Rethinking United States V. Klein , J. Richard Doidge

Cornell Law Review

No abstract provided.

Les Représentations De «Société Libre Et Démocratique» A La Cour Dickson : La Rhétorique Dans Le Discours Judiciaire Canadien, Andree Lajoie, Regine Robin, Sebastien Grammond, Henry Quillinan, Louise Rolland, Stéphane Perrault, Armelle Chitrit

Osgoode Hall Law Journal

The expression "free and democratic society" is the focus of our research, which sheds light on the contribution of the Supreme Court to the constitutionalization of this concept. Leaving aside the institutional and psycho-social factors, the study confirms the hypothesis that the interpretation of this expression will vary (1) according to the conceptions formerly held by the individual judges and (2) with respect to the factors favoured by a rhetorical Perelman-like analysis, which considers the factual and judicial context and the expectations of both the universal and specific audiences. At the Supreme Court level, the expectations of the latter should …

Deficit Reduction: Democracy, Technocracy, And Constitutionalism In The European Union, Paul D. Marquardt

Duke Journal of Comparative & International Law

No abstract provided.

Florida Constitutional Theory (For Clifford Alloway), Patrick O. Gudridge

University of Miami Law Review

No abstract provided.

The Continuing Evolution Of Criminal Constitutional Law In State Courts, S. Carran Daughtrey

Vanderbilt Law Review

Although early state constitutions were important and ambitious documents for their time, the development of state constitutional law stagnated after the drafting and adoption of the federal constitution., As the doctrine of federalism has resurfaced, however, states have begun to turn to their constitutions to grant more protection for their citizens. The states' criminal constitutional laws have changed significantly and continue to evolve today.

In the 1960s, the Warren Court expanded basic protections for criminal defendants by finding that the Fourteenth Amendment incorporates the Fourth, Fifth, and Sixth Amendments. The Court held that the Eighth Amendment prohibits cruel and unusual …

A Precarious Path: The Bill Of Rights After 200 Years, Tony A. Freyer

Vanderbilt Law Review

The Bill of Rights occupies an ambiguous place in American society. Americans favor the Bill of Rights in principle, but when asked whether they support particular rights guarantees for real-life practices such as gun ownership, capital punishment, abortion, and flag burning, Americans fervently and profoundly disagree. The essays David J. Bodenhamer and James W. Ely, Jr. have compiled in The Bill of Rights in Modern America After 200 Years, richly suggest why Americans have reconciled principle and practice with such difficulty. Written for a popular audience by specialists who possess a profound knowledge of and differing views concerning the technical …

State Courts Reject "Leon" On State Constitutional Grounds: A Defense Of Reactive Rulings, Leigh A. Morrissey

Vanderbilt Law Review

In 1984, the United States Supreme Court announced a broad exception to the federal exclusionary rule' in United States v. Leon. The Court held the exclusionary rule inapplicable when police officers obtain evidence in reasonable, good faith reliance on a warrant later found to be defective. Commentators had advised against the creation of the so-called good faith exception before Leon. After Leon, they promulgated a torrent of commentary criticizing both the Leon Court's reasoning and its result. Today, because Leon does not control state constitutional decisions, the battle over the good faith exception is fought on the state level. Currently, …

Laws Intentionally Favoring Mainstream Religions: An Unhelpful Comparison To Race , Gary J. Simson

Cornell Law Review

No abstract provided.

Putting The People Back Into The Fourth Amendment, Ronald J. Bacigal

Law Faculty Publications

This Article attempts to answer such questions by examining the evolution of search-and-seizure law in America. Although the structural nature of decision making embodied in the Bill of Rights has far-ranging implications for that entire document, I limit my consideration to the unique aspects of the Fourth Amendment. In doing so I have followed the suggestion that constitutional interpretation considers a threefold question: "Does the Constitution mean what it was meant to mean, or what it has come to mean, or what it ought to mean?" Part I examines the historical involvement of juries in search-and-seizure cases; Part II considers …

Constitutional Law And International Law In The United States Of America, Lung-Chu Chen

Articles & Chapters

No abstract provided.

Hate Speech, Offensive Speech, And Public Discourse In America, Edward J. Eberle

Law Faculty Scholarship

In this article, Professor Eberle discusses several limitations on governmental power to regulate public discourse. After examining the United States Supreme Court decisions of R.A.V. v. City of St. Paula nd Wisconsin v. Mitchell, Professor Eberle concludes that government should refrain from regulating speech itself. Rather, any restrictions should focus strictly on the problematic conduct underlying the speech which justifies regulation. Professor Eberle also concludes that the Court has implicitly recognized two distinct subcategories of "content" discrimination and viewpoint discrimination. Both subcategories are presumptively unconstitutional and nominally subject to conventional strict scrutiny. The Court, however, finds viewpoint discrimination more dangerous …

Can American Constitutional Law Be Postmodern?, Robert Justin Lipkin

Robert Justin Lipkin

No abstract provided.

Resolving Native American Land Claims And The Eleventh Amendment: Changing The Balance Of Power, Katharine F. Nelson

Katharine F. Nelson

No abstract provided.

Voice In Government: The People, Emily Calhoun

Publications

No abstract provided.

Gender Law, Katharine T. Bartlett

Duke Journal of Gender Law & Policy

The inauguration of the DUKE JOURNAL OF GENDER LAW & POLICY represents an exciting step in the institutionalization of a subject area in academic law formerly found only at the fringe of legal scholarship and law school curriculums. Often shunned as a political activity inappropriate to institutions committed to academic rigor, objectivity, and neutrality, gender law has begun to lay down roots as a disciplined set of inquiries that enhance the rigor of conventional legal study and offer tools for improving the objectivity and neutrality of law, even as it challenges the conventional meanings of those concepts. There are two …

Race And Gender Discrimination: A Historical Case For Equal Treatment Under The Fourteenth Amendment, Sandra L. Rierson

Duke Journal of Gender Law & Policy

It was we, the people, not we, the white male citizens, nor yet we, the male citizens, but we, the whole people, who formed this Union. And we formed it, not to give the blessings of liberty, but to secure them; not to the half of ourselves and the half of our posterity, but to the whole people--women as well as men. --Susan B. Anthony 1 Under the common law of both England and the United States, a married woman enjoyed a legal status only slightly better than that of a slave. Until the mid-nineteenth century, in no state could …

Fundamental Rights In The "Gray" Area: The Right Of Privacy Under The Minnesota Constitution, Michael K. Steenson

Faculty Scholarship

This Article explores the constitutional aspects of Minnesota privacy law. Part II briefly explains federal privacy law to provide a baseline for consideration of privacy law in Minnesota. Part III examines the right of privacy as it has evolved in the Minnesota common law. Part IV evaluates the Minnesota Supreme Court's application of federal privacy standards and then examines the court's decisions that outline the right of privacy under the Minnesota Constitution. Part V concludes by raising questions concerning the potential application of the court's concept of privacy under the Minnesota Constitution as applied to two areas: same-sex marriages and …

From Betrayal To Power, Elizabeth Debold, Marie Wilson, Idelisse Malave

Duke Journal of Gender Law & Policy

Resistance is the secret of joy! --Alice Walker Possessing the Secret of Joy What does it mean to love a daughter in a culture that is hostile to her integrity? In a culture where power equals dominance and superiority, men's control of public life--the world of political and economic power that shapes the desires of private life--places mothers in a double bind as their daughters approach womanhood. The common ways that mothers have of guiding daughters--what we call "the paths of least resistance" in chapter two 1 --ask girls to make deep psychological sacrifices to straddle the cultural division of …

The First Amendment Distinction Between Conduct And Content: A Conceptual Framework For Understanding Fighting Words Jurisprudence, Aviva O. Wertheimer

Fordham Law Review

No abstract provided.

Cuban Property Rights And The 1940 Constitution, Ignacio E. Sanchez

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Oil Over Troubled Waters: The Constitutional Implications Of A Presidential Pre-Trial Pardon In Trinidad And Tobago, Albert K. Fiadjoe

Florida State University Journal of Transnational Law & Policy

No abstract provided.