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Articles 1 - 6 of 6
Full-Text Articles in Jurisprudence
Inherent National Sovereignty Constitutionalism: An Original Understanding Of The U.S. Constitution, Robert J. Kaczorowski
Inherent National Sovereignty Constitutionalism: An Original Understanding Of The U.S. Constitution, Robert J. Kaczorowski
Faculty Scholarship
No abstract provided.
Judge Jack Weinstein And The Allure Of Antiproceduralism, Howard M. Erichson
Judge Jack Weinstein And The Allure Of Antiproceduralism, Howard M. Erichson
Faculty Scholarship
In one sense of the word proceduralist — a person with expertise in procedure — Judge Jack Weinstein is among the leading proceduralists on the federal bench. But in another sense of the word proceduralist — an adherent of proceduralism, or faithfulness to established procedures — he falls at a different end of the spectrum. Looking at four examples of Judge Weinstein’s work in mass litigation, this Article considers what it means to be an antiproceduralist, someone unwilling to let procedural niceties stand in the way of substantive justice. The allure of antiproceduralism is that it eschews technicalities in favor …
Sotomayer's Supreme Court Race Jurisprudebce: 'Fidelity To The Law', Tanya K. Hernandez
Sotomayer's Supreme Court Race Jurisprudebce: 'Fidelity To The Law', Tanya K. Hernandez
Faculty Scholarship
During the Senate confirmation hearings for Justice Sonia Sotomayor, concerns were persistently raised about her ability to be impartial. Conservative pundit Rush Limbaugh and many others railed against her nomination, proclaiming on talk radio broadcasts from coast-to-coast that she is a reverse-racist and nothing less than anti-white. A review of the Supreme Court record of race-related cases demonstrates Justice Sotomayor’s continued commitment to her stated judicial philosophy of fidelity to the law, inasmuch as she has not sought the unilateral imposition of her own personal racial policy preferences but has instead worked as a team player to scrupulously apply legal …
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Case For A Constitutional Definition Of Hearsay: Requiring Confrontation Of Testimonial, Nonassertive Conduct And Statements Admitted To Explain An Unchallenged Investigation, The, James L. Kainen, Carrie A. Tendler
Faculty Scholarship
Crawford v. Washington’s historical approach to the confrontation clause establishes that testimonial hearsay inadmissible without confrontation at the founding is similarly inadmissible today, despite whether it fits a subsequently developed hearsay exception. Consequently, the requirement of confrontation depends upon whether an out-of-court statement is hearsay, testimonial, and, if so, whether it was nonetheless admissible without confrontation at the founding. A substantial literature has developed about whether hearsay statements are testimonial or were, like dying declarations, otherwise admissible at the founding. In contrast, this article focuses on the first question – whether statements are hearsay – which scholars have thus far …
Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski
Congress's Power To Enforce Fourteenth Amendment Rights: Lessons From Federal Remedies The Framers Enacted , Robert J. Kaczorowski
Faculty Scholarship
Professor Robert Kaczorowski argues for an expansive originalist interpretation of Congressional power under the Fourteenth Amendment. Before the Civil War Congress actually exercised, and the Supreme Court repeatedly upheld plenary Congressional power to enforce the constitutional rights of slaveholders. After the Civil War, the framers of the Fourteenth Amendment copied the antebellum statutes and exercised plenary power to enforce the constitutional rights of all American citizens when they enacted the Civil Rights Act of 1866 and then incorporated the Act into the Fourteenth Amendment. The framers of the Fourteenth Amendment thereby exercised the plenary power the Rehnquist Court claims the …
Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski
Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski
Faculty Scholarship
A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …