Constitutional Law Commons^™

Review Of State Constitutional Law: Cases And Materials, 2nd Ed., By Robert F. Williams, Charles Baron

Charles H. Baron

No abstract provided.

Racist Speech, Outsider Jurisprudence, And The Meaning Of America, Steven H. Shiffrin

Cornell Law Faculty Publications

Freedom From Incarceration: Why Is This Right Different From All Other Rights?, Sherry F. Colb

Cornell Law Faculty Publications

American constitutional jurisprudence has long accepted the notion that the exercise of certain rights can only be restricted by the government if the restriction satisfies strict scrutiny. The Supreme Court has identified such rights as fundamental often by relying on an expansive interpretation of the word "liberty" in the due process clause of the fourteenth amendment. In this Article, Professor Colb argues that the Supreme Court has failed to recognize the right to physical liberty itself as a fundamental right. She demonstrates that at present conduct that is not itself constitutionally protected may serve as the basis for imprisonment even …

An Anatomy Of False Analysis: Original Intent, Raoul Berger

BYU Law Review

No abstract provided.

Taking A Look At The Modem Takings Clause Jurisprudence: Finding Private Property Protection Under The Federal And Utah Constitutions, David W. Tufts

BYU Law Review

No abstract provided.

Visions Of Habeas, David Mccord

BYU Law Review

No abstract provided.

How To Prevent Another Larsen Affair, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals

The Paradoxes Of National Self-Determination, Brian Slattery

Osgoode Hall Law Journal

Some have argued that the right of national self-determination gives every national group the power to decide for itself whether to remain part of an existing state or to secede unilaterally and form its own state. Such a theory underpins the claim that Quebec is entitled to decide on its own whether or not to leave Canada. This paper examines the main philosophical arguments for the theory and finds them one-dimensional and inadequate; they fail to take account of the full range of complex issues arising in actual cases of proposed secession. If the right of national self-determination is understood …

On War And Justice, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Metaphor And Method: How Not To Think About Constitutional Interpretation, Thomas Morawetz

Faculty Articles and Papers

No abstract provided.

Constitutional Law—21 U.S.C. § 881 And The Eighth Amendment: Application Of The Proportionality Requirement To Civil Forfeitures. Austin V. United States, 113 S. Ct. 2801 (1993), T. Michelle Ator

University of Arkansas at Little Rock Law Review

No abstract provided.

Applying The Eighth Amendment To Civil Forfeiture After Austin V. United States: Excessiveness And Proportionality, Douglas S. Reinhart

William & Mary Law Review

No abstract provided.

Republican Constitutional Skepticism And Congressional Reform, Thomas Molnar Fisher

Indiana Law Journal

No abstract provided.

Hate Speech In Context: The Case Of Verbal Threats, John T. Nockleby

Buffalo Law Review

No abstract provided.

Justice Souter's "Keep-What-You-Want-And-Throw-Away-The-Rest" Interpretation Of Stare Decisis, David K. Koehler

Buffalo Law Review

No abstract provided.

Provincial Fiduciary Obligations To First Nations: The Nexus Between Governmental Power And Responsibility, Leonard I. Rotman

Osgoode Hall Law Journal

The Canadian Crown's fiduciary duty to First Nations is entrenched in Canadian Aboriginal rights jurisprudence. More than ten years after the Supreme Court of Canada's decision in Guerin, however, yet to be ascertained are the various emanations of the Crown bound by that duty. This paper argues that both federal and provincial Crowns are properly bound by fiduciary obligations to First Nations. It also suggests that the basis of this assertion may be found in existing jurisprudence, the Canadian Constitution, the spirit and intent of Indian treaties, and in Aboriginal understandings of "the Crown."

West Lynn Creamery And The Constitutionality Of State Tax Incentives, Walter Hellerstein

Scholarly Works

One of the more perplexing questions that has surfaced from time to time in the state tax field is how a constitutionally benign tax incentive program designed to attract industry to a state is to be distinguished from an unconstitutionally discriminatory taxing scheme that “forecloses tax-neutral decisions” and “provides a direct commercial advantage to local business.” On one hand, the U.S. Supreme Court has expressed the view that its decisions do “not prevent the States from structuring their tax systems to encourage the growth and development of intrastate commerce and industry.” On the other hand, the Court has frequently invalidated …

Three Faces Of Federalism: Finding A Formula For The Future, Deborah J. Merritt

Vanderbilt Law Review

The first, and oldest, of the Supreme Court's concepts of federalism is the territorial model. This model recognizes that there is a discernible boundary between the subjects fit for national regulation and those reserved for state governance. Territorialists argue that the national government is supreme in some areas, while states reign sovereign in others. Adherents of this model, for example, might declare that the national government directs foreign affairs while the states control domestic relations.

Under the territorial model, federalism violations occur when the national government attempts to invade a substantive area of law reserved to the states. The Supreme …

Five Views Of Federalism: "Converse-1983" In Context, Akhil R. Amar

Vanderbilt Law Review

In 1987, I published an overly long article in the Yale Law Journal entitled Of Sovereignty and Federalism. In it, I advanced a "converse-1983" model of federalism-a model that highlighted the ways in which state laws can provide remedies when federal officials violate federal constitutional rights. For example, prior to the 1971 landmark of Bivens v. Six Unknown Federal Agents, citizens whose Fourth Amendment rights had been violated by federal officers had no clear federal cause of action; but state trespass law often provided a remedy, and enabled citizens to recover when their "persons, houses, papers, [or] effects" had been …

We The Exceptional American People, James E. Fleming

Faculty Scholarship

I. INTRODUCTION: "AMERICAN EXCEPTIONALISM" There is an academic movement afoot-one with a long historical pedigree-to attribute the vitality of the American constitutional order to "American exceptionalism." The most prominent representative of this school of thought is Bruce Ackerman, whose We the People opens with a jeremiad against the "Europeanization" of American constitutional theory and urges us as Americans to "look inward" to rediscover our distinctive patterns, practices, and ideals.2 He maps the terrain of theory as being divided into monists ("Anglophiles"), rights foundationalists ("Germanophiles"), and dualists (red-blooded Americans).3 Only dualists have the "strength" to declare our American independence from British …

Antitrust And First Amendment Implications Of Professional Real Estate Investors, Gary Myers

Washington and Lee Law Review

No abstract provided.

Guns For Hire, Commercial Speech And Tort Liability: Making A Case For Preserving First Amendment Free Speech Rights, Stephen T. Raptis

West Virginia Law Review

No abstract provided.

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

West Virginia Law Review

No abstract provided.

The Future Of Communications Policymaking, Fred H. Cate

William & Mary Bill of Rights Journal

No abstract provided.

Media Violence And The Obscenity Exception To The First Amendment, Kevin W. Saunders

William & Mary Bill of Rights Journal

No abstract provided.

Presidential Power: Should Bill Clinton Be Immune From Lawsuits On Allegations Of Past Acts?, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

When former Arkansas state employee Paula Jones filed her complaint against Bill Clinton she joined a small group of women who have publicly accused men in high-profile positions of sexual harassment.

A classic "he said, she said" story? We may never know, if the president is able to argue successfully that his office shields him from liability for actions occurring prior to assuming it. On June 27, his lawyer, Robert Bennett, asked a federal court to delay action, and said he would be filing a separate motion in August on the issue.

The defense is based on the 1982 case …

Does The Fourth Amendment Apply To The Armed Forces?, Fredric I. Lederer, Frederic L. Borch

William & Mary Bill of Rights Journal

No abstract provided.

Constitutional Law—Commercial Speech—Face-To-Face Solicitation By Certified Public Accountants (But Not Attorneys?) Is Protected Speech Under The First Amendment, L. Kyle Heffley

University of Arkansas at Little Rock Law Review

No abstract provided.

The Politics Of The Mass Media And The Free Speech Principle, Steven H. Shiffrin

Cornell Law Faculty Publications

Eliminating Double Talk From The Law Of Double Jeopardy, Eli J. Richardson

Florida State University Law Review

No abstract provided.