Open Access. Powered by Scholars. Published by Universities.®

Jurisprudence Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 9 of 9

Full-Text Articles in Jurisprudence

Law And Human Dignity: The Judicial Soul Of Justice Brennan, Stephen Wermiel Jan 1998

Law And Human Dignity: The Judicial Soul Of Justice Brennan, Stephen Wermiel

Articles in Law Reviews & Other Academic Journals

No abstract provided.


Textualism And Judgment, Suzanna Sherry Jan 1998

Textualism And Judgment, Suzanna Sherry

Vanderbilt Law School Faculty Publications

Textualism, like other foundationalist theories such as originalism, purports to be a grand theory of constitutional interpretation, answering all questions with the same single-minded and narrowly constrained technique. The inevitable result is a diminution of what one might call judgment. Judgment is what judges use to decide cases when the answer is not tightly constrained by some interpretive theory. It is an aspect of what others have called prudence, or pragmatism.' But if one has a theory of constitutional interpretation that is supposed to produce clear answers in a relatively mechanical way, there is little room for the exercise of …


The New Etiquette Of Federalism: New York, Printz And Yeskey, Matthew D. Adler, Seth F. Kreimer Jan 1998

The New Etiquette Of Federalism: New York, Printz And Yeskey, Matthew D. Adler, Seth F. Kreimer

Faculty Scholarship

In New York v. United States, 505 U.S. 144 (1992), the Court revived "state sovereignty" as a justiciable constitutional constraint on federal mandates, and struck down portions of the Low-Level Radioactive Waste Policy Amendments Act on the grounds that the statute impermissibly "commandeered" state governments. Printz v. United States, 117 S.Ct. 2365 (1997), confirmed the anti-commandeering principle and relied upon it to invalidate elements of another federal statute, the Brady Act. This Article analyzes and criticizes the anti-commandeering jurisprudence, as it has emerged in New York, Printz, and a case decided by the Court last Term, Pennsylvania Department of Corrections …


Whose Federalism, S. Elizabeth Malloy Jan 1998

Whose Federalism, S. Elizabeth Malloy

Faculty Articles and Other Publications

This Article examines briefly the Seminole Tribe and City of Boerne decisions. Part II then focuses on the ADA and the reasons why Congress made it applicable to government conduct as well as private conduct. Finally, Part III examines the argument, based on the new federalism, that the ADA should not apply to state entities. It does not appear that the Court's new federalism has had a liberty-enhancing effect for some of the most vulnerable persons in our society. The Court's revitalized federalism jurisprudence has led to questions about the continuing validity of many of our civil rights statutes as …


Authorizing Interpretation, Pierre Schlag Jan 1998

Authorizing Interpretation, Pierre Schlag

Publications

No abstract provided.


Judicial Supremacy And The Settlement Function, Robert F. Nagel Jan 1998

Judicial Supremacy And The Settlement Function, Robert F. Nagel

Publications

No abstract provided.


A Century Lost: The End Of The Originalism Debate, Eric J. Segall Jan 1998

A Century Lost: The End Of The Originalism Debate, Eric J. Segall

Faculty Publications By Year

Focuses on the originalism debate on the constitutional law of the United States. Contemporary debate; Analysis on the debate; Views an arguments on originalism.


Understanding Mahon In Historical Context, William Michael Treanor Jan 1998

Understanding Mahon In Historical Context, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Despite its enormous influence on constitutional law, Pennsylvania Coal Co. v. Mahon is just such an opinion; the primary purpose of the author’s article Jam for Justice Holmes: Reassessing the Significance of Mahon is to clarify Holmes's intent by placing the opinion in historical context and in the context of Holmes's other opinions. While other scholars have also sought to place Mahon in context, his account differs in large part because of its recognition, as part of the background of Mahon, of a separate line of cases involving businesses affected with a public interest.

The author argues that at …


Universalism, Liberal Theory, And The Problem Of Gay Marriage, Robin West Jan 1998

Universalism, Liberal Theory, And The Problem Of Gay Marriage, Robin West

Georgetown Law Faculty Publications and Other Works

Liberalism, both contemporary and classical, rests at heart on a theory of human nature, and at the center of that theory lies one core commitment: all human beings, qua human beings, are essentially rational. There are two equally important implications. The first we might call the "universalist" assumption: all human beings, not just some, are rational -- not just white people, men, freemen, property owners, aristocrats, or citizens, but all of us. In this central, defining respect, then, we are all the same: we all share in this universal, natural, human trait. The second implication, we might call the "individualist" …