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Articles 1 - 23 of 23
Full-Text Articles in Law
First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern
First Amendment Lochnerism & The Origins Of The Incorporation Doctrine, James Y. Stern
Faculty Publications
The 20th century emergence of the incorporation doctrine is regarded as a critical development in constitutional law, but while issues related to the doctrine's justification have been studied and debated for more than fifty years, the causes and mechanics of its advent have received relatively little academic attention. This Essay, part of a symposium on Judge Jeffrey Sutton's recent book about state constitutional law, examines the doctrinal origins of incorporation, in an effort to help uncover why the incorporation doctrine emerged when it did and the way it did. It concludes that, for these purposes, incorporation is best understood as …
How Many Votes Is Too Few?, Rebecca Green
Restoring Fairness To Campus Sex Tribunals, Cynthia Ward
Restoring Fairness To Campus Sex Tribunals, Cynthia Ward
Faculty Publications
No abstract provided.
Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick
Restroom Use, Civil Rights, And Free Speech "Opportunism", Timothy Zick
Faculty Publications
Commentators have expressed concerns that litigants are invoking the First Amendment's Free Speech Clause strategically, in order to compensate for the weakness or futility of other constitutional claims. The phenomenon has been given a label- "opportunism "-and scholars have examined some of its causes and consequences. This Article takes a closer and somewhat skeptical look at the concept offree speech "opportunism." It imagines that the Free Speech Clause will be invoked in challenges to laws or policies that restrict public restroom use based on a person's gender. Would such challenges be "opportunistic, " as the term has been defined? What …
Rights Dynamism, Timothy Zick
Competition Policy And The Great Depression: Lessons Learned And A New Way Forward, Alan J. Meese
Competition Policy And The Great Depression: Lessons Learned And A New Way Forward, Alan J. Meese
Faculty Publications
The recent Great Recession has shaken the nation’s faith in free markets and inspired various forms of actual or proposed regulatory intervention displacing free competition. Proponents of such intervention often claim that such interference with free-market outcomes will help foster economic recovery and thus macroeconomic stability by, for instance, enhancing the “purchasing power” of workers or reducing consumer prices. Such arguments for increased economic centralization echo those made during the Great Depression, when proponents of regulatory intervention claimed that such interference with economic liberty and free competition, including suspension of the antitrust laws, was necessary to foster economic recovery. Indeed, …
The Legal Dilemma Of Guantanamo Detainees From Bush To Obama [Updated], Linda A. Malone
The Legal Dilemma Of Guantanamo Detainees From Bush To Obama [Updated], Linda A. Malone
Faculty Publications
The stage for the Guantanamo detainees’ commission proceedings was set by the interplay between the Executive’s detention powers and the Judiciary’s habeas powers. The Bush administration turned to Congress to provide less than what was required by the court, instead of the minimum deemed necessary to comply with each decision, or to explore another legal argument for not complying. This article examines how the law for the Guantanamo detainees has been shaped by the US courts and by Congress. The article begins by observing the guidelines issued by the Supreme Court for compliance with the constitutional and humanitarian law requirements, …
When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle
When Delegation Begets Domination: Due Process Of Administrative Lawmaking, Evan J. Criddle
Faculty Publications
No abstract provided.
The Legal Dilemma Of Guantánamo Detainees From Bush To Obama, Linda A. Malone
The Legal Dilemma Of Guantánamo Detainees From Bush To Obama, Linda A. Malone
Faculty Publications
No abstract provided.
Choice Of Law, The Constitution And Lochner, James Y. Stern
Choice Of Law, The Constitution And Lochner, James Y. Stern
Faculty Publications
No abstract provided.
Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer
Due Process And Punitive Damages: The Error Of Federal Excessiveness Jurisprudence, A. Benjamin Spencer
Faculty Publications
The Supreme Court, in a line of several cases over the past decade, has established a rigorous federal constitutional excessiveness review for punitive damages awards based on the Due Process Clause. As a matter of substantive due process, says the Court, punitive awards must be evaluated by three "guideposts" set forth in BMW of North America v. Gore: the degree of reprehensibility of the defendant's conduct, the ratio between punitive and compensatory damages, and a comparison of the amount of punitive damages to any "civil or criminal penalties that could be imposed for comparable misconduct." Following up on this pronouncement …
Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer
Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer
Faculty Publications
Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray. As a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by …
Jurisdiction And The Internet: Returning To Traditional Principles To Analyze Network-Mediated Contacts, A. Benjamin Spencer
Jurisdiction And The Internet: Returning To Traditional Principles To Analyze Network-Mediated Contacts, A. Benjamin Spencer
Faculty Publications
Courts have been evaluating the issue of personal jurisdiction based on Internet or "network-mediated" contacts for some time. The U.S. Supreme Court has remained silent on this issue, permitting the federal appeals courts to develop standards for determining when personal jurisdiction based on network-mediated contacts is appropriate. Unfortunately, the circuit approaches-which emphasize a Web site's "interactivity" and "target audience" -are flawed because they are premised on an outdated view of Internet activity as uncontrollably ubiquitous. This view has led courts to depart from traditional jurisdictional analysis and impose elevated and misguided jurisdictional standards. This article argues that courts should reinstitute …
The Constitutional Limits To Court-Stripping, Michael J. Gerhardt
The Constitutional Limits To Court-Stripping, Michael J. Gerhardt
Faculty Publications
This Article is part of a colloquy between Professor Michael J. Gerhardt and Professor Martin Redish about the constitutionality of court-stripping measures. Court-stripping measures are laws restricting federal court jurisdiction over particular subject matters. In particular, the authors discuss the constitutionality of the Marriage Protection Act of 2004. Professor Gerhardt argues that the Act is unconstitutional and threatens to destroy the principles of separation of powers, federalism and due process. It prevents Supreme Court review of Congressional action and hinders the uniformity and finality of constitutional law. Furthermore, the Act violates the equal protection component of the Fifth Amendment Due …
A Community Of Interest In The Due Process Calculus, Charles H. Koch Jr.
A Community Of Interest In The Due Process Calculus, Charles H. Koch Jr.
Faculty Publications
No abstract provided.
Public School Officials' Use Of Physical Force As A Fourth Amendment Seizure: Protecting Students From The Constitutional Chasm Between The Fourth And Fourteenth Amendments, Kathryn R. Urbonya
Public School Officials' Use Of Physical Force As A Fourth Amendment Seizure: Protecting Students From The Constitutional Chasm Between The Fourth And Fourteenth Amendments, Kathryn R. Urbonya
Faculty Publications
No abstract provided.
Constitutional Law -- Due Process Clause -- Third Circuit Holds That $50 Million Punitive Damages Award In Context Of A $48 Million Compensatory Award Is Unconstitutionally Excessive -- Inter Medical Supplies, Ltd. V. Ebi Medical Systems, Inc., 181 F.3d 446 (3d Cir. 1999)., A. Benjamin Spencer
Faculty Publications
In 1996, the Supreme Court, in BMW of North America, Inc. v. Gore, struck down a punitive damages award on the ground that it was "grossly excessive" in violation of the Due Process Clause of the Fourteenth Amendment . Since BMW, many courts have faced the challenge of applying its principles to determine whether punitive damages awards surpass the constitutional limit. Last June, in Inter Medical Supplies, Ltd. v. EBI Medical Systems, Inc., the Third Circuit faced this difficulty when it considered whether a $50 million punitive damages award, granted in conjunction with a $48 million compensatory damages award, was …
The Failure Of The Religious Freedom Restoration Act Under Section 5 Of The Fourteenth Amendment, William W. Van Alstyne
The Failure Of The Religious Freedom Restoration Act Under Section 5 Of The Fourteenth Amendment, William W. Van Alstyne
Faculty Publications
No abstract provided.
The Due Process Defense In Entrapment Cases, The Journey Back, Paul Marcus
The Due Process Defense In Entrapment Cases, The Journey Back, Paul Marcus
Faculty Publications
No abstract provided.
Toward An Expanded View Of The Due Process Claim In Entrapment Cases, Paul Marcus
Toward An Expanded View Of The Due Process Claim In Entrapment Cases, Paul Marcus
Faculty Publications
No abstract provided.
Judicial Vigilantism: Inherent Judicial Authority To Appoint Contempt Prosecutors In Young V. United States Ex Rei Vuitton Et Fils S.A., Neal Devins, Steven J. Mulroy
Judicial Vigilantism: Inherent Judicial Authority To Appoint Contempt Prosecutors In Young V. United States Ex Rei Vuitton Et Fils S.A., Neal Devins, Steven J. Mulroy
Faculty Publications
No abstract provided.
Establishing A Deprivation Of A Constitutional Right To Personal Security Under Section 1983: The Use Of Unjustified Force By State Officials In Violation Of The Fourth, Eighth, And Fourteenth Amendments, Kathryn R. Urbonya
Faculty Publications
No abstract provided.
Toward Due Process In Injunction Procedure, Doug R. Rendleman
Toward Due Process In Injunction Procedure, Doug R. Rendleman
Faculty Publications
No abstract provided.