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Articles 31 - 43 of 43
Full-Text Articles in Constitutional Law
The Rehnquist Court, Structural Due Process, And Semisubstantive Constitutional Review, Dan T. Coenen
The Rehnquist Court, Structural Due Process, And Semisubstantive Constitutional Review, Dan T. Coenen
Scholarly Works
Semisubstantive review, as I use that label, entails four key features. First, the subject matter of judicial inquiry is not the process applied in adjudicating a discrete dispute; rather, the matter at hand is the constitutionality of a statute or other generalized expression of legal policy. Second, some procedural omission by the lawmaker -- rather than an incurably substantive flaw in the end product of its work -- lays the groundwork for a judicial intervention that invalidates the challenged rule or negates how that rule otherwise would operate. It may be, for example, that a federal statute read as a …
Democracy And Inclusion: The Role Of The Judge In A Pluralist Polity, Sylvia R. Lazos
Democracy And Inclusion: The Role Of The Judge In A Pluralist Polity, Sylvia R. Lazos
Scholarly Works
The Supreme Court plays a critical role in resolving clashes between majority and minority interests and perspectives. The Equal Protection Clause, and at times the Due Process Clause, have become key vehicles for considering the most problematic intergroup conflicts that divide our society. Prior to this article, the Court heard cases dealing with affirmative action in government procurement programs, legislative districts designed to increase minority representation, state sponsored male-only military schooling, and a state constitutional amendment that would have proscribed antidiscrimination legislation protecting gay men and lesbians. While the Court declined to challenge California's anti-affirmative action referendum (Proposition 209) and …
Judicial Review Of Initiatives And Referendums In Which Majorities Vote On Minorities’ Citizenship, Sylvia R. Lazos
Judicial Review Of Initiatives And Referendums In Which Majorities Vote On Minorities’ Citizenship, Sylvia R. Lazos
Scholarly Works
In this Article, Professor Lazos examines initiatives and referendums in which a majority is in a position to vote on the content of a minority's democratic civic standing. Case law fails to set forth a single test for judicial review; consequently, doctrinal and theoretical coherence in this area is nonexistent. Professor Lazos proposes a test that takes into account social dynamics and focuses on the impact of these measures. First, she examines outcomes over the last three decades of approximately eighty such initiatives and referendums, from the anti-integration movement of the sixties to today's ideological and cultural versions, such as …
Deconstructing Homo[Genous] Americanus: The White Ethnic Immigrant Narrative And Its Exclusionary Effect, Sylvia R. Lazos
Deconstructing Homo[Genous] Americanus: The White Ethnic Immigrant Narrative And Its Exclusionary Effect, Sylvia R. Lazos
Scholarly Works
This Article examines why the assumption of sameness is so pervasive in our society, and why the very idea of diversity is so resisted. The assumption and the corollary mandate to be the same are embedded in American cultural ideology, in how Americans think of themselves, in the stories that we tell regarding who we are and where we come from, in how we construct our values and norms, and in how Americans make sense of our chaotic social world. The assumption and mandate of sameness not only influence American culture, they also guide judges' thinking and decision-making in key …
Race, Angst And Capital Punishment: The Burger Court's Existential Struggle, Katherine R. Kruse
Race, Angst And Capital Punishment: The Burger Court's Existential Struggle, Katherine R. Kruse
Scholarly Works
This article chronicles the Burger Court's inability to fashion a suitable remedy for racism in the discretionary system of capital sentencing. The article discusses the Court's initial response, “remedial paralysis,” which is evident, not only in McGautha v. California, where the Court refused to find that the Due Process Clause was violated by standardless death sentencing, but also in Furman v. Georgia, where the Court decided to abolish the death penalty. The article further explores the Court's reinstatement of the death penalty, and two of the Court's forays into “bad faith” denial that sustained the death penalty, particularly the Court's …
Original Intent And Article Iii, Michael L. Wells, Edward J. Larson
Original Intent And Article Iii, Michael L. Wells, Edward J. Larson
Scholarly Works
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 law is …
Behind The Parity Debate: The Decline Of The Legal Process Tradition In The Law Of Federal Courts, Michael L. Wells
Behind The Parity Debate: The Decline Of The Legal Process Tradition In The Law Of Federal Courts, Michael L. Wells
Scholarly Works
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 …
Immunity From Regulatory Price Squeeze Claims: From Keogh, Parker, And Noerr To Town Of Concord And Beyond, Keith A. Rowley
Immunity From Regulatory Price Squeeze Claims: From Keogh, Parker, And Noerr To Town Of Concord And Beyond, Keith A. Rowley
Scholarly Works
On September 21, 1990, the First Circuit handed down its decision in Town of Concord, Massachusetts v. Boston Edison Co. This case, the most recent in a growing line of court of appeals decisions examining the antitrust implications of public utility rate structures, represents the first time a United States court of appeals has unequivocally stated that an antitrust action based upon a “price squeeze” could not be maintained against a utility whose wholesale and retail rates were both fully regulated. Town of Concord notwithstanding, the courts are far from agreeing whether investor-owned electric or natural gas utilities are immune …
Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel
Pitfalls Of Public Policy: The Case Of Arbitration Agreements, Jeffrey W. Stempel
Scholarly Works
As the juxtaposition of these quotations suggests, judges have long held disparate views on the legitimacy and value of “public policy” considerations as a basis for legal decision making. The popular notion posits that Justice Holmes and legal realists carried the day, making public policy analysis an ordinary part of the adjudication process. The story, of course, is more complex than this legal version of Don Quixote. Many judges and lawyers, including Justice Holmes in other writings, continued to speak of adjudication in more formalist and positivist terms, with most laypersons in apparent agreement. Judge Burroughs' view of public policy …
The Impact Of Substantive Interests On The Law Of Federal Courts, Michael L. Wells
The Impact Of Substantive Interests On The Law Of Federal Courts, Michael L. Wells
Scholarly Works
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 the reasons set …
Terrorism And The Constitution, Christopher L. Blakesley
Terrorism And The Constitution, Christopher L. Blakesley
Scholarly Works
How do terrorism and the Iran-Contra hearings relate to the Constitution? My thesis is that there is a tendency for the executive of this or any nation to eschew even constitutionally mandated avenues of problem solving considered to be cumbersome, inefficient, or inimical to the executive’s vision of the national interest in foreign affairs. There is also a tendency to consider one’s own conduct and the conduct of one’s allies and friends to be justified when it is directed at goals deemed by the executive branch to be good. Constitutional provisions based on the checks and balances and separation of …
Preliminary Injunctions And Abstention: Some Problems In Federalism, Michael L. Wells
Preliminary Injunctions And Abstention: Some Problems In Federalism, Michael L. Wells
Scholarly Works
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 …
Hawkins V. Town Of Shaw: The Court As City Manager, C. Ronald Ellington, Lawrence F. Jones
Hawkins V. Town Of Shaw: The Court As City Manager, C. Ronald Ellington, Lawrence F. Jones
Scholarly Works
For over one hundred years Congress and the federal courts have pursued the goal of racial equality in the United States. In areas such as voting rights, public accommodations, and housing, Congress and the courts have interacted closely, with broad judicial interpretations upholding major remedial legislation. Moreover, when confronted by official state sources of racial discrimination, courts have traditionally responded to the clear command of the equal protection clause of the fourteenth amendment without awaiting congressional action. Brown v. Board of Education stands as perhaps the best known instance in which a court has, on its own, ordered the elimination …