Jurisprudence Commons^™

Meeting The Enemy, Robert F. Nagel

Publications

No abstract provided.

Benign Classification Based On Race Must Be Narrowly Tailored To Achieve A Compelling Governmental Interest., Martha J. Hess

St. Mary's Law Journal

In City of Richmond v. J.A. Croson Co., the Supreme Court held a minority business utilization plan (Richmond Plan) was violative of the Fourteenth Amendment’s Equal Protection Clause. The Richmond Plan required all builders awarded city construction contracts to subcontract, at minimum, 30% of the contract value to Minority Business Enterprises. A state government enacting legislation that burdens one class of persons and benefits a similarly-situated class must provide sufficient justification for its action to survive equal protection analysis. When distinction is based on race or national origin—classes considered inherently suspect—a reviewing court subjects the governmental legislation to strict scrutiny, …

Allowing A Child Abuse Victim To Testify Via One-Way Closed-Circuit Television Does Not Violate A Criminal Defendant's Sixth Amendment Confrontation Clause Right If The Trial Court Specifically Finds Such A Procedure Necessary To Protect The Child's Welfare., Lisa R. Miller

St. Mary's Law Journal

In Maryland v. Craig, the Supreme Court held allowing child abuse victims to testify via one-way closed-circuit television does not violate a criminal defendant’s Sixth Amendment Confrontation Clause right if the trial court finds the procedure necessary to protect the child’s welfare. Although “confront” has generally been interpreted to mean “face-to-face,” on occasion, it may yield to public policy considerations and the compelling necessities of particular cases. The original purpose of the confrontation right was to prevent the accusers in a criminal proceeding from using ex parte affidavits or depositions against a defendant, in lieu of personal testimony. The Craig …

Progressive And Conservative Constitutionalism, Robin West

Georgetown Law Faculty Publications and Other Works

American constitutional law in general, and fourteenth amendment jurisprudence in particular, is in a state of profound transformation. The "liberal-legalist" and purportedly politically neutral understanding of constitutional guarantees that dominated constitutional law and theory during the fifties, sixties, and seventies, is waning, both in the courts and in the academy. What is beginning to replace liberal legalism in the academy, and what has clearly replaced it on the Supreme Court, is a very different conception - a new paradigm - of the role of constitutionalism, constitutional adjudication, and constitutional guarantees in a democratic state. Unlike the liberal-legal paradigm it is …

Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West

Georgetown Law Faculty Publications and Other Works

During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute …

Critical Legal Theory And The Politics Of Pragmatism, Peter D. Swan

Dalhousie Law Journal

In this century mainstream legal scholarship in the United States has been subjected to various "crises of confidence" over the nature of the adjudication process. One of the key features of more traditional legal scholarship has been a belief in legal texts such as the constitution, statutes and precedents which are said to possess discrete and objective meaning capable of being discovered by objective detached observers. This belief in the authority of the text has been most clearly expressed in American constitutional law scholarship which has been dominated until recently by the quest to reveal the public moral values that …

Mastery, Slavery, And Emancipation, Guyora Binder

Journal Articles

Hegel's dialectic of master and slave in the Phenomenology of Mind portrays a master unable to win genuine recognition from a slave because unwilling to confer it. The dialectic implies that freedom has to be conceived as association based on mutual respect, rather than independence. This article offers a communitarian interpretation of emancipation inspired by Hegel's dialectic of master and slave. It proceeds from an account of slave society which, like Hegel's dialectic, equates slavery with the denial of social recognition. This account argues that the experience of slave society led both the masters and the slaves to conceive of …

Political Law, Legalistic Politics: A Recent History Of The Political Question Doctrine, Robert F. Nagel

Publications

No abstract provided.

Are Constitutional Cases Political?, Brian Slattery

Articles & Book Chapters

To argue that constitutional adjudication is political does not carry us very far unless we go on to specify what the pursuit of politics entails, the goals it seeks to attain, and the basic principles informing its practice. The word political has no clearly defined meaning in modern usage. Rather, it has the chameleon-like capacity to change colours so as to blend with a variety of different conceptual backgrounds. Of course, if we adopt an Aristotelian notion of politics as the pursuit of the common good of a community and the individual goods of its members, we can agree that …

Are Constitutional Cases Political?, Brian Slattery

Brian Slattery

Silence As A Trial Strategy After Strickland And Cronic: Ineffective Assistance Of Counsel?Nic : The Ineffective Assistance Of Counsel?, Jo Ellen Silberstein

Touro Law Review

No abstract provided.

Teaching Tolerance, Robert F. Nagel

Publications

No abstract provided.

Rationalism In Constitutional Law, Robert F. Nagel

Publications

No abstract provided.

Freedom Of Speech As Therapy, Pierre Schlag

Publications

No abstract provided.

Penumbras And Privacy: A Study Of The Use Of Fictions In Constitutional Decision-Making, James B. Stoneking

West Virginia Law Review

No abstract provided.

Book Review, Pierre Schlag

Publications

No abstract provided.

Rules And Standards, Pierre Schlag

Publications

No abstract provided.

Framers Intent: The Illegitimate Uses Of History, Pierre Schlag

Publications

No abstract provided.

Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne

Faculty Scholarship

With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.

An Attack On Categorical Approaches To Freedom Of Speech, Pierre J. Schlag

Publications

No abstract provided.

Assaults On The Exclusionary Rule: Good Faith Limitations And Damage Remedies, Pierre J. Schlag

Publications

No abstract provided.

A Comment On The Burger Court And "Judicial Activism", Robert F. Nagel

Publications

No abstract provided.

The Neutrality Of Adherence To Precedent, Robert L. Birmingham

Articles by Maurer Faculty

No abstract provided.

Massachusetts In The Federal Courts: The Constitutionality Of The Vietnam War, Anthony D'Amato

Faculty Working Papers

One of the most singular pieces of legislation in American constitutional history passed the Massachusetts legislature in 1970, and was signed into law. It provided that, except for an emergency, no inhabitant of Massachusetts inducted into or serving in the armed forces "shall be required to serve" abroad in an armed hostility that has not been declared a war by Congress under Article I, Section 8, clause 11 of the US Constitution. A conflict between state law and national policy was created.

The Tentative Emergence Of Student Power In The United States, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Unconstitutional Conditions Upon Public Employment: New Departures In The Protection Of First Amendment Rights, Harold H. Bruff

Publications

No abstract provided.

What's Wrong With Baker V. Carr?, Robert Lancaster

Vanderbilt Law Review

The decision of the majority of the Supreme Court in Baker v. Carr, the recently decided Tennessee Reapportionment Case, may well turn out to be one of the landmark decisions of American jurisprudence. If by reason of apathetic acquiescence such a judicial intrusion is permitted to go unchallenged and undebated, our federal system of limited and constitutional government may be further weakened. Although the balance of power as between the states and the national government has shifted and this shift has been reflected in and furthered by judicial interpretation of our Constitution, it seems questionable that such a far-reaching and …

Book Review. Wechsler, H., Principles, Politics, And Fundamental Law, Ralph F. Fuchs

Articles by Maurer Faculty

No abstract provided.

What Is Happening In The Conflict Of Laws: Three Supreme Court Cases, Wendell Carnahan

Vanderbilt Law Review

An answer to the topical inquiry is "A great deal" but full explanation of the general answer to a very big question cannot be attempted in a single article. Instead, attention will be directed primarily to the opinions in three cases decided on the same day by the Supreme Court of the United States. These cases present problems in the segments of conflict of laws dealing with principles of forum non conveniens and full faith to a statute,' jurisdiction over a foreign corporation and a combination of choice of laws rules and judicial recognition of an alimony award. These cases …

Book Reviews, Carl B. Swisher (Reviewer), Elvin E. Overton (Reviewer), Jay Murphy (Reviewer), Charlotte Williams (Reviewer), Alexander Holtzoff (Reviewer)

Vanderbilt Law Review

Book Reviews

LIONS UNDER THE THRONE

By Charles P. Curtis, Jr.

Boston: Houghton Mifflin, 1947. Pp. xviii, 368. $3.50

MR. JUSTICE BLACK: THE MAN AND His OPINIONS

By John P. Frank (Introduction by Charles A. Beard)

New York: Knopf Company, 1949.Pp. xix, 357. $4.00

ON UNDERSTANDING THE SUPREME COURT

By Paul A. Freund

Boston: Little, Brown & Co., 1949. Pp. vi, 130. $3.00

MELVILLE VESTON FULLER: CHIEF JUSTICE OF THE UNITED STATES, 1888-1919

By Willard L. King

New York: Macmillan Company, 1950. Pp.394. $5.00

CHIEF JUSTICE STONE AND THE SUPREME COURT

By Samuel J. Konefsky (Prefatory Note by Charles A. …