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2009

Constitutional Law

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Articles 1 - 30 of 61

Full-Text Articles in Legal History

“Consolidating The New Position (1938-1940)”: A Study Of The Tenure Of Robert H. Jackson: March 5, 1938 To January 18, 1940, Nicholas John Stamato Dec 2009

“Consolidating The New Position (1938-1940)”: A Study Of The Tenure Of Robert H. Jackson: March 5, 1938 To January 18, 1940, Nicholas John Stamato

Dissertations - ALL

Robert H. Jackson’s service as Solicitor General has attained mythic status, prompting academics and commentators consistently to rate him as one of the greatest appointees to that office. In part, his stature reflects his extraordinary skill as an attorney. In some measure, Jackson’s legend draws upon the Supreme Court’s growing liberalism, which occurred upon his watch. As Peter Ubertaccio argues in his history of the office, Learned in the Law and Politics, the stature of the Solicitor General suffered during the early 1930s, when the court generally ruled against the government, then improved as the court sided ...


Ideologia E Utopias Nas Mais Recentes Constituintes Brasileira E Portuguesa: Algumas Linhas De Leitura, Paulo Ferreira Da Cunha Nov 2009

Ideologia E Utopias Nas Mais Recentes Constituintes Brasileira E Portuguesa: Algumas Linhas De Leitura, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Based upon a political compromise, in which « democratic socialists » and « social democrats » were the main protagonists, the ideology of Portuguese Constitution of 1976 was discrete, subtle. And ulterior constitutional revisions confirmed that fondamental aspect. Of course, utopia was present. But, even more present was the « hope principle ». We believe that the Brazilean constituent assembly, with the original importance of popular contributions, also had hope principle’s decisive influence. But the dinamics of the constituent assembly moderated, since the very beggining, the verbal signs of less discret ideologies. Utopia, neverthless, is very present in the aim of the « Citizen Constitution » to ...


The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt Nov 2009

The Sit-Ins And The State Action Doctrine, Christopher W. Schmidt

All Faculty Scholarship

By taking their seats at “whites only” lunch counters across the South in the spring of 1960, African American students not only launched a dramatic new stage in the civil rights movement, they also sparked a national reconsideration of the scope of the constitutional equal protection requirement. The critical constitutional question raised by the sit-in movement was whether the Fourteenth Amendment, which after Brown v. Board of Education (1954) prohibited racial segregation in schools and other state-operated facilities, applied to privately owned accommodations open to the general public. From the perspective of the student protesters, the lunch counter operators, and ...


Examining Presidential Power Through The Rubric Of Equity, Eric A. White Oct 2009

Examining Presidential Power Through The Rubric Of Equity, Eric A. White

Michigan Law Review

In this Note I propose a method to examine presidents' actions taken outside the normal bounds of executive power by employing the general rubric of equity, in an attempt to find when the president acts with what I term "practical legitimacy." This would be a new category for executive actions that, while perhaps arguably illegal, are so valuable that we want to treat them as legitimate exercises of executive power. To do so, I first examine the history of equity, noting the many relevant parallels to our modern conception of executive power In light of these parallels, I argue that ...


The New Federalism Attack On Doma: Does The Supreme Court Really Care About States' Rights?, Kent Greenfield Jul 2009

The New Federalism Attack On Doma: Does The Supreme Court Really Care About States' Rights?, Kent Greenfield

Kent Greenfield

No abstract provided.


The Origins And Costs Of Short-Term Management, Kent Greenfield May 2009

The Origins And Costs Of Short-Term Management, Kent Greenfield

Kent Greenfield

Why is a fixation on the short term a problem for American businesses? One might hasten to answer that management is compensated for short-term successes. Another answer might be that some investors—particularly professional investors—value only the short term and manipulate the market in a particular stock so they can profit on the movement. These answers undoubtedly are part of the answer. But a puzzle remains: why does the market not punish such short-termism? This essay will present a possible answer.


O Que É Uma Universidade?, Paulo Ferreira Da Cunha May 2009

O Que É Uma Universidade?, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Pouca gente sabe hoje o que é uma Universidade, a sério. Confunde-se muito Universidade e super-mercado de aulas, ou fábrica de « investigação » ou « pesquisa », assim como se confunde serviço público com negócio, vocação com interesse pessoal, etc. É a própria essência da Universidade que está em causa. A confusão é grande no público, que vê a Universidade sobretudo como uma forma de promoção social, pelos diplomas. A confusão não é menor na própria Universidade. Os universitários mais responsáveis interrogam-se sobre a sua função, o sentido do trabalho que fizeram e fazem, e a sua sorte na universidade que vem aí ...


The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum May 2009

The Constitutional Canon As Argumentative Metonymy, Ian C. Bartrum

Faculty Scholarship Series

This article builds on Philip Bobbitt's Wittgensteinian insights into constitutional argument and law. I examine the way that we interact with canonical texts as we construct arguments in the forms that Bobbitt has described. I contend that these texts serve as metonyms for larger sets of associated principles and values, and that their invocation usually is not meant to point to the literal meaning of the text itself. This conception helps explain how a canonical text's meaning in constitutional argument can evolve over time, and hopefully offers the creative practitioner some insight into the kinds of arguments that ...


The Supreme Court, Empathy, And The Science Of Decision Making, Kent Greenfield May 2009

The Supreme Court, Empathy, And The Science Of Decision Making, Kent Greenfield

Kent Greenfield

No abstract provided.


Abortion Across State Lines, Joseph W. Dellapenna May 2009

Abortion Across State Lines, Joseph W. Dellapenna

Working Paper Series

In this Article, I propose to analyze conflicts of law precedents and theory to explore the extent to which a state can apply its law on abortion to abortions performed outside the state but bearing a significant connection to the state. In attempting to resolve such questions, we enter into the domain of choice of law, part of the field of conflicts of law. This domain is notoriously unstable and contested. This instability allows legal commentators to project their attitudes towards abortion (and many other matters) in analyzing and construing the relevant authorities to resolve choice of law issues. I ...


The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh May 2009

The Appropriations Power And Sovereign Immunity, Paul F. Figley, Jay Tidmarsh

Michigan Law Review

Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence-or nonexistence-of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers' Case (1690- 1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the line of English ...


Of Big And Small Tents: Arlen Specter As A Dem, And The Obama Storm At Notre Dame, Kent Greenfield Apr 2009

Of Big And Small Tents: Arlen Specter As A Dem, And The Obama Storm At Notre Dame, Kent Greenfield

Kent Greenfield

No abstract provided.


Luther Martin, Maryland And The Constitution, William L. Reynolds Apr 2009

Luther Martin, Maryland And The Constitution, William L. Reynolds

William L. Reynolds

Reviews the life and contributions of Maryland lawyer and scholar Luther Martin (1748-1826).


Book Review: Reconstruction And Reunion, 1864-88, Part One, David S. Bogen Apr 2009

Book Review: Reconstruction And Reunion, 1864-88, Part One, David S. Bogen

David S. Bogen

No abstract provided.


Law, War, And The History Of Time, Mary L. Dudziak Apr 2009

Law, War, And The History Of Time, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This paper examines wartime as a form of time, arguing that assumptions about the temporality of war are a feature of American legal thought. Time is thought to be linear and episodic, moving from one kind of time (peacetime) to another kind of time (wartime) in sequence. In this way of thinking, war is by definition temporary, so that war’s impact on law is limited in time. This understanding of war and time, however, is in tension with the practice of war in 20th century U.S. history, for American involvement in overseas military action has been continuous.

Drawing ...


Supreme Neglect Of Text And History, William Michael Treanor Apr 2009

Supreme Neglect Of Text And History, William Michael Treanor

Michigan Law Review

Since his classic book Takings appeared in 1985, Richard Epstein's ideas have profoundly shaped debate about the Fifth Amendment's Takings Clause to a degree that no other scholar can even begin to approach. His broad, original, and stunningly ambitious reading of the clause has powerfully influenced thinking in academia, in the judiciary, and in the political arena. The firestorm of controvery that followed the Supreme Court's recent decision in Kelo - in which the Supreme Court upheld the constitutionality of a municipal urban renewal plan that displaced long-time homeowners and conveyed their land to developers - is in critical ...


St. George Tucker's Lecture Notes, The Second Amendment, And Originalist Methodology: A Critical Comment, Saul Cornell Mar 2009

St. George Tucker's Lecture Notes, The Second Amendment, And Originalist Methodology: A Critical Comment, Saul Cornell

NULR Online

No abstract provided.


"Airbrushed Out Of The Constitutional Canon": The Evolving Understanding Of Giles V. Harris, 1903-1925, Samuel Brenner Mar 2009

"Airbrushed Out Of The Constitutional Canon": The Evolving Understanding Of Giles V. Harris, 1903-1925, Samuel Brenner

Michigan Law Review

Richard H. Pildes argued in an influential 2000 article that the U.S. Supreme Court's opinion in Giles v. Harris, which was written by Justice Oliver Wendell Holmes, was the "one decisive turning point" in the history of "American (anti)-democracy." In Giles, Holmes rejected on questionable grounds Jackson W. Giles's challenge to the new Alabama Constitution of 1901-a document which was designed to disfranchise and had the effect of disfranchising African Americans. The decision thus contributed significantly to the development of the all-white electorate in the South, and the concomitant marginalization of southern African Americans. According to ...


Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich Jan 2009

Originalism And The Difficulties Of History In Foreign Affairs, Eugene Kontorovich

Faculty Working Papers

This Article spotlights some of the idiosyncratic features of admiralty law at the time of the founding. These features pose challenges for applying the original understanding of the Constitution to contemporary questions of foreign relations. Federal admiralty courts were unusual creatures by Article III standards. They sat as international tribunals applying international and foreign law, freely hearing cases that implicated sensitive questions of foreign policy, and liberally exercising universal jurisdiction over disputes solely between foreigners. However, these powers did not arise out of the basic features of Article III, but rather from a felt need to opt into the preexisting ...


The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander Jan 2009

The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander

Faculty Working Papers

In Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized the right of an individual to sue federal government officials for a violation of constitutional rights. Drawing on interviews with some of the participants, including Webster Bivens himself and one of the agents who conducted the search, this chapter in the forthcoming book Federal Courts' Stories describes the events that led to the litigation and the complex array of factors that informed the Court's approach to the case. After placing the Bivens decision in context, the chapter evaluates the competing narratives that have ...


Introducción Al Análisis Económico Del Derecho Administrativo / Introduction To Administrative Law And Economics, Andres Palacios Lleras Jan 2009

Introducción Al Análisis Económico Del Derecho Administrativo / Introduction To Administrative Law And Economics, Andres Palacios Lleras

Andrés Palacios Lleras

El estudio y la enseñanza del derecho administrativo colombiano dejan mucho que desear, especialmente en lo que respecta al estudio del derecho como fenómeno social. Éste tiende a ser presentado como un cuerpo de normas políticamente neutrales, construido a partir de categorías conceptuales muy abstractas, y coherente. Como resultado de ello, asume una posición “normativista” que ignora el contexto social en el que lleva a la producción e interpretación de las normas jurídicas. Este artículo sugiere que un cambio conceptual puede ser muy útil para “curar” al análisis del derecho administrativo de los males que lo aquejan. Sugiere que el ...


Global Threads: Weaving The Rule Of Law And The Balance Of Legal Software, Gianluigi Palombella Jan 2009

Global Threads: Weaving The Rule Of Law And The Balance Of Legal Software, Gianluigi Palombella

Gianluigi Palombella

The article shows how the global legal sphere attempts to compensate the lack of a system (hardware) and faces the proliferation of legal normativities (software). The author elaborates on the role of the rule of law: after stressing the ambiguities and the contestability of its current uses in the confrontations between legal orders and regulatory regimes, it is explained that the persistence and promise of the rule of law in the global setting depend on the weaving of a set of meta-rules (a special kind of software) developed through various areas and sources of legalities in the international environment. Eventually ...


The Original Meaning Of The Constitution's “Executive Vesting Clause”—Evidence From Eighteenth Century Drafting Practice, Robert G. Natelson Jan 2009

The Original Meaning Of The Constitution's “Executive Vesting Clause”—Evidence From Eighteenth Century Drafting Practice, Robert G. Natelson

Robert G. Natelson

Advocates of presidential power from the days of George Washington at least to the time of George W. Bush have claimed that the Constitution’s so-called “Executive Vesting Clause,” the first sentence of Article II, not only designates the President as chief executive, but also confers broad authority. Some commentators support that view, while others maintain that the President’s powers are limited to those enumerated elsewhere in the Constitution. This study addresses the previously-overlooked question of which interpretation is more consistent with contemporaneous drafting customs. It concludes that treating the “Executive Vesting Clause” as a mere designation is consistent ...


The Original Meaning Of The Privileges And Immunities Clause, Robert G. Natelson Jan 2009

The Original Meaning Of The Privileges And Immunities Clause, Robert G. Natelson

Robert G. Natelson

This article explains the meaning of the U.S. Constitution's Privileges and Immunities Clause of Article IV, as the Founders understood it. It explains that the terms "privileges" and "immunities" had well-understood content in 18th century law---as benefits created by government. The Clause protects states from discriminating against visitors as to the benefits of citizenship (such as access to the courts), but does not address "natural rights" such as freedom of speech and religion.


Full Faith And Credit In The Early Congress, Stephen E. Sachs Jan 2009

Full Faith And Credit In The Early Congress, Stephen E. Sachs

Stephen E. Sachs

After more than 200 years, the Full Faith and Credit Clause remains poorly understood. The Clause first issues a self-executing command (that "Full Faith and Credit shall be given"), and then empowers Congress to prescribe the manner of proof and the "Effect" of state records in other states. But if states must accord each other full faith and credit-and if nothing could be more than full-then what "Effect" could Congress give state records that they wouldn't have already? And conversely, how could Congress in any way reduce or alter the faith and credit that is due? This Article seeks ...


Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz Jan 2009

Deliberative Democracy And Weak Courts: Constitutional Design In Nascent Democracies, Edsel F. Tupaz

Edsel F Tupaz

This Article addresses the question of constitutional design in young and transitional democracies. It argues for the adoption of a “weak” form of judicial review, as opposed to “strong” review which typifies much of contemporary adjudication. It briefly describes how the dialogical strain of deliberative democratic theory might well constitute the normative predicate for systems of weak review. In doing so, the Article draws from various judicial practices, from European supranational tribunals to Canadian courts and even Indian jurisprudence. The Article concludes with the suggestion that no judicial apparatus other than the weak structure of judicial review can better incite ...


The Failure Of Adversary Process In The Administrative State, Bryan T. Camp Jan 2009

The Failure Of Adversary Process In The Administrative State, Bryan T. Camp

Bryan T Camp

In a series of hearings in 1997 and 1998, Congress heard allegations that the Internal Revenue Service (“IRS” or “Service”) was abusing taxpayers during the process of collecting taxes. The resulting distrust of the tax bureaucracy led Congress to create a special adversary proceeding providing for judicial review of IRS collection decisions. The proceeding is beguilingly titled “Collection Due Process” (and commonly referred to as “CDP”). My study of CDP’s structure, operation, and of 976 court decisions issued through the end of 2006 demonstrates that it has failed to fulfill its promise. Of the over 15 million collection decisions ...


The Assault On Classical Legal Thought In Colombia (1886-1920), Jorge Gonzalez-Jacome Jan 2009

The Assault On Classical Legal Thought In Colombia (1886-1920), Jorge Gonzalez-Jacome

Jorge Gonzalez-Jacome

The topic of this paper is the tensions among classical legal thought (CLT) and other modes of legal thought in Colombia between 1886 and 1920. My main claim is that, during this period, CLT was attacked by a version of traditionalism and by a social-based legal thought. The former was evident in the constitutional discussions around the 1886 Colombian Constitution, while the latter became apparent in the interpretation of the Civil Code in areas such as property, contracts and torts. My goal is to tell a story that gives a sense of the fall of CLT as a process crossed ...


39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes Jan 2009

39th Congress (1865-1867) And The 14th Amendment: Some Preliminary Perspectives, Richard Aynes

Akron Law Publications

The 39th Congress (1865-1867) was one of the important Congresses in our history. It passed more legislation than any other Congress up to that time.

This preliminary examination of the 39th Congress begins with a look it composition. One of the critical factors was that while the 38th Congress contained a majority of unionists, the 39th Congress contained a super-majority which meant not only that they could override a Presidential veto, but also that they did not need to take the Democratic opposition seriously. This article also identifies the leadership of the 39th Congress. The 38th Congress was composed of ...


Infinite Hope-- Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly Jan 2009

Infinite Hope-- Introduction To The Symposium: The 140th Anniversary Of The Fourteenth Amendment, Elizabeth Reilly

Akron Law Publications

The Fourteenth Amendment embodies hope. This article introduces the Symposium celebrating the 140th anniversary of its ratification, held at the University of Akron. The symposium was a fruitful occasion to reflect upon the meaning of the Amendment to its Framers in Congress and as it was initially interpreted by the United States Supreme Court and the public, and to examine the lasting impacts of both conceptions. Our participants especially examined three of the Supreme Court's earliest forays into applying the Fourteenth Amendment: The Slaughter House Cases, Bradwell v. Illinois, and Cruikshank v. United States. Those forays succeeded in cramping ...