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Articles 1 - 12 of 12

Full-Text Articles in Law

The Wisdom Of Soft Judicial Power: Mr. Justice Powell Concurring, Samuel Estreicher, Tristan Pelham-Webb Dec 2008

The Wisdom Of Soft Judicial Power: Mr. Justice Powell Concurring, Samuel Estreicher, Tristan Pelham-Webb

New York University Public Law and Legal Theory Working Papers

No abstract provided.


"The Story Of United States V. United States District Court (Keith): The Surveillance Power", Trevor W. Morrison Nov 2008

"The Story Of United States V. United States District Court (Keith): The Surveillance Power", Trevor W. Morrison

Columbia Public Law & Legal Theory Working Papers

This chapter, prepared for Presidential Power Stories (edited by Christopher Schroeder and Curtis Bradley), tells the story of United States v. United States District Court for the Eastern District of Michigan, better known as the Keith case. Keith is the Supreme Court's first and still most important statement on the extent to which the President, acting in the interests of national security, may authorize the warrantless wiretapping or other electronic surveillance of persons within the United States. The case began as a criminal prosecution of members of the radical "White Panther Party" for the bombing of a CIA office ...


Protecting Judicial Whistleblowers In The War On Poverty: A Proposed International Initiative Focusing On The United States, Zena Crenshaw-Logal Oct 2008

Protecting Judicial Whistleblowers In The War On Poverty: A Proposed International Initiative Focusing On The United States, Zena Crenshaw-Logal

Zena D. Crenshaw-Logal

No abstract provided.


Nowhere To Hide: Overbreadth And Other Constitutional Challenges Facing The Current Designation Regime, Ilya O. Podolyako Sep 2008

Nowhere To Hide: Overbreadth And Other Constitutional Challenges Facing The Current Designation Regime, Ilya O. Podolyako

Student Scholarship Papers

This Article examines the legal foundation and policy implications of the President’s power to designate terrorist organizations. These administrative actions carry severe repercussions because of the criminal prohibition on knowingly providing material support to the designated entities, codified at 18 U.S.C. § 2339B. Due to the overlap of the President’s Commander-in-Chief power to block enemy assets and specific Congressional authorization of such actions, the designations themselves appear to be immune from constitutional challenges. It is the addition of concomitant criminal sanctions, however, that drastically expands the potency of the designations and turns them into an effective national ...


Preliminary Injunctions And Abstention: Some Problems In Federalism, Michael L. Wells Sep 2008

Preliminary Injunctions And Abstention: Some Problems In Federalism, Michael L. Wells

Michael L. Wells

Suppose a federal district court faces a challenge to state action that presents an unsettled issue of state law, a federal constitutional issue, and a plaintiff who will be irreparably harmed if the state is not immediately enjoined. May the court abstain from a decision on the merits, remand the case to the state courts for resolution of the state law issue, and yet grant a preliminary injunction against the challenged state action? Does it follow from the paucity of reported opinions coupling such interim relief with abstention that such a procedure is inconsistent with the policies underlying the abstention ...


Original Intent And Article Iii, Michael Wells, Edward Larson Sep 2008

Original Intent And Article Iii, Michael Wells, Edward Larson

Michael L. Wells

Article III of the United States Constitution sets limits on the ability of the legislature to expand or contract the jurisdiction of the federal courts. The Supreme Court has generally held that Article III's restraints on the power of the legislature to restrict the jurisdiction of the federal courts are few and extremely permissive. Many scholars, however, argue that Article III imposes some strong limitations on the legislature's ability to define federal jurisdiction. Strangely, both sides of the debate rely on originalist arguments. This Article argues that reliance on the Framers' intent to resolve issues of federal courts ...


The Impact Of Substantive Interests On The Law Of Federal Courts, Michael L. Wells Sep 2008

The Impact Of Substantive Interests On The Law Of Federal Courts, Michael L. Wells

Michael L. Wells

The thesis of this Article is that substantive factors exert a powerful and often unrecognized influence over the resolution of jurisdictional issues, and have done so throughout our history. The chief substantive factors at issue are the government's interest iin regulating behavior on the one hand, and the individual's interest in enforcing constitutional restraints upon government on the other. Part I of this Article examines the relationship between jurisdictional rules and substantive consequences, Part II describes the Court's conventional account of federal courts doctrine in terms of jurisdictional policy and institutional roles, and Part III shows that ...


Behind The Parity Debate: The Decline Of The Legal Process Tradition In The Law Of Federal Courts, Michael L. Wells Sep 2008

Behind The Parity Debate: The Decline Of The Legal Process Tradition In The Law Of Federal Courts, Michael L. Wells

Michael L. Wells

Whether there is parity between federal and state courts has become a central question in the law of federal courts, dividing judges and commentators into two well-defined camps. Although the issue rarely arose thirty years ago, it now enters into virtually every discussion of the rules concerning access to federal court for constitutional claims. On one side of the debate, advocates of broad federal jurisdiction over constitutional challenges to state action claim that federal courts are better than state courts at adjudicating these controversies. On the other side, advocates of state court jurisdiction insist that state courts are fully adequate ...


Lower Courts And Constitutional Comparativism, Roger P. Alford Jan 2008

Lower Courts And Constitutional Comparativism, Roger P. Alford

Journal Articles

The issue of constitutional comparativism has been a topic of significant commentary in recent years. However, there is one aspect of this subject that has been almost completely ignored by scholars: the reception, or lack thereof, of constitutional comparativism by state and lower federal courts. While the Supreme Court's enthusiasm for constitutional comparativism has waxed and now waned, lower state and federal courts have remained resolutely agnostic about this new movement. This is of tremendous practical significance because over ninety-nine percent of all cases are resolved by lower state and federal courts. Accordingly, if the lower courts eschew constitutional ...


Quintessential Elements Of Meaningful Constitutions In Post-Conflict States, William W. Van Alstyne Jan 2008

Quintessential Elements Of Meaningful Constitutions In Post-Conflict States, William W. Van Alstyne

Faculty Scholarship

This examination compares several successful constitutions formulated to govern countries just formed from the conclusion of armed conflicts (including the U.S.). Some of the most important elements gleaned from these successful constitutions include an independent court before which one may appeal to the new constitution because such a constitution adequately secures the integrity of the court itself.


Popular Constitutionalism And Relaxing The Dead Hand: Can The People Be Trusted?, Todd Pettys Dec 2007

Popular Constitutionalism And Relaxing The Dead Hand: Can The People Be Trusted?, Todd Pettys

Todd E. Pettys

A growing number of constitutional scholars are urging the nation to rethink its commitment to judicial supremacy. Popular constitutionalists argue that the American people, not the courts, hold the ultimate authority to interpret the Constitution’s many open-ended provisions whose meanings are reasonably contestable. This Article defends popular constitutionalism on two important fronts. First, using originalism as a paradigmatic example of the ways in which courts frequently draw constitutional meaning from sources rooted deep in the past, the Article contends that defenders of judicial supremacy still have not persuasively responded to the familiar dead-hand query: Why should constitutional meanings that ...


Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow Dec 2007

Much Ado About Pluralities: Pride And Precedent Amidst The Cacophy Of Concurrences, And Re-Percolation After Rapanos, Donald J. Kochan, Melissa M. Berry, Matthew J. Parlow

Donald J. Kochan

Conflicts created by concurrences and pluralities in court decisions create confusion in law and lower court interpretation. Rule of law values require that individuals be able to identify controlling legal principles. That task is complicated when pluralities and concurrences contribute to the vagueness or uncertainty that leaves us wondering what the controlling rule is or attempting to predict what it will evolve to become. The rule of law is at least handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules. This Article uses the recent U.S. Supreme Court decision in Rapanos v. United States ...