Digital Commons Network^™

Is This The End Of American Indian Site Specific Free Exercise Claims?: Lyng V. Northwest Indian Cemetery Protection Association, Joseph Tomkiewicz

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Barnette And Johnson: A Tale Of Two Opinions, Lackland H. Bloom Jr.

Faculty Journal Articles and Book Chapters

Among other things, the final two years of the 1980s could well be remembered as a period of patriotic symbols, especially in the area of American constitutional law. During the summer of 1988, debate in the presidential campaign turned to the Pledge of Allegiance to the flag. George Bush criticized Michael Dukakis for vetoing a Massachusetts bill that would have required public school teachers to lead their students in reciting the Pledge of Allegiance. Dukakis defended his action by citing an advisory opinion he had requested from the Supreme Court of Massachusetts which concluded that the bill violated the first …

Webster V. Reproductive Health Services: A Path To Constitutional Equilibrium, Mark E. Chopko

Campbell Law Review

This Article is intended as part of a symposium and a debate on substantive due process and the decision in Webster v. Reproductive Health Services. This writer, although here a commentator on the law, does have an opinion on the ultimate question: Roe v. Wade was wrongly decided.

Strange Expectations: A Review Of Two Theories Of Judicial Review, Joel Bakan

All Faculty Publications

The author examines two theories of judicial review under the Charter, one proposed by D.M. Beatty in Putting the Charter to Work: Designing a Constitutional Labour Code, and the other by P. Monahan in Politics and the Constitution: The Charter, Federalism and the Supreme Court of Canada. He demonstrates how each of these theories attempts to reconcile judicial review under the Charter with the principles of democracy by portraying it (judicial review) as a means for realizing these principles. He then argues that both efforts are ultimately unsuccessful and, indeed, only compound the problems they identify and set out to …

The Internal And External Analysis Of Concepts, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In Abstract Right and the Possibility of a Nondistributive Conception of Contract: Hegel and Contemporary Contract Theory, Peter Benson criticizes the authors presentation of a consent theory of contract, in part, on the ground that it "refers only to the empirical facts of the requirements of human needs and fulfillment. Like [Charles] Fried's [account], his conception of the consensual basis of a contract does not preserve the required standpoint of abstraction. " On this basis Professor Benson concludes that the author's approach fails to "provide an adequate elucidation of a nondistributive conception of contract.

By explaining contractual obligation …

How Useful Is Civil Rico In The Enforcement Of Criminal Law?, Gerard E. Lynch

Faculty Scholarship

The title of this paper asks what appears to be a simple and important question: Just how much does the availability of extensive private civil remedies for violation of the RICO statute add to the effort to ensure compliance with the norms of criminal law? These remarks address only civil RICO actions by private plaintiffs. The once-rare, but increasingly frequent, civil RICO actions brought by the United States present very different issues. This question is, of course, only a part of any assessment of the value of civil RICO. One may conclude that civil RICO is of little or no …

Harmless Error And The Valid Rule Requirement, Henry Paul Monaghan

Faculty Scholarship

Nearly a decade ago in the pages of this journal, in discussing the nature of overbreadth challenges, I drew attention to what may be characterized as the "valid rule requirement." A defendant in a coercive action always has standing to challenge the rule actually applied to him. This means that he can resist sanctions unless they are imposed in accordance with a constitutionally valid rule, whether or not his own conduct is constitutionally privileged. The valid rule requirement focuses upon the rule as applied to the defendant by the jury instructions. In Pope v. Illinois the Court held that harmless …

Are Courts Competent To Decide Competency Questions? Stripping The Facade From United States V. Charters, Michael L. Perlin

Articles & Chapters

No abstract provided.

The Constitutional Right To Expert Assistance For Indigents In Civil Cases, David Medine

Articles by Maurer Faculty

No abstract provided.

Where To Draw The Guideline: Factoring The Fruits Of Illegal Searches Into Sentencing Guidelines Calculations, Cheryl G. Bader, David S. Douglas

Touro Law Review

No abstract provided.

The Meaning Of Equality And The Interpretive Turn, Robin West

Georgetown Law Faculty Publications and Other Works

The turn to hermeneutics and interpretation in contemporary legal theory has contributed at least two central ideas to modern jurisprudential thought: first, that the "meaning" of a text is invariably indeterminate -- what might be called the indeterminacy claim -- and second, that the unavoidably malleable essence of texts -- their essential inessentiality -- entails that interpreting a text is a necessary part of the process of creating the text's meaning. These insights have generated both considerable angst, and considerable excitement among traditional constitutional scholars, primarily because at least on first blush these two claims seem to inescapably imply a …

Virtues And Voices, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay explores two ideas that have recently played an important role in discourse about the American constitutional order. The first idea has emerged from the revival of civic republicanism. The republican revival has focused our attention on the classical conception of civic virtue. Our basic social arrangements ought to nourish a citizenry with the characteristics of mind and will that promote human flourishing. The second idea, expressed in critical race theory and feminist jurisprudence, is that we have an obligation as a society and as scholars to attend to excluded voices. The juxtaposition of these two themes offers an …

The Virtues Of Redundancy In Legal Thought, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Redundancy has a bad reputation among legal intellectuals. When someone says, for example, that the ninth and tenth amendments are redundant, we can be pretty sure that this person attaches little importance to these constitutional provisions. Listen to one of the definitions of redundant provided by the Oxford English Dictionary: "superabundant, superfluous, excessive."' In this essay, the author proposes that legal theorists pay serious attention to the concept of redundancy used by engineers. He explains how redundancy--in this special sense--is essential to any intellectual enterprise in which we try to reach action-guiding conclusions, including the enterprise of law. The author …

Feres To Chappell To Stanley: Three Strikes And Servicemembers Are Out, Jonathan P. Tomes

University of Richmond Law Review

With its decision in United States v. Stanley, the United States Supreme Court completed the virtual evisceration of servicemembers' constitutional rights begun thirty-seven years before in Feres v. United States. Although the courts have never expressly held that servicemembers do not enjoy the same constitutional rights that other citizens enjoys the Supreme Court's decision in Stanley has left servicemembers without an effective remedy to vindicate their constitutional rights. Rights without means of enforcing them are meaningless.

The French Declaration Of The Rights Of Man And Citizen And The American Constitutional Development, Rett R. Ludwikowski

Scholarly Articles

The thorough examination of the influence of the French Declaration of the Rights of Man and Citizen on constitutions has long awaited proper implementation. The importance of the French act has never been questioned but its multi-sided impact has not been satisfactorily evaluated.

With respect to the American Constitution, this problem merits a specially comprehensive study. Although the American and French politics at the end of the eighteenth century were carefully examined, the links between the constitutional developments of both countries has never been researched exhaustively. The reasons seem to be threefold. First, with exception of the American Constitution, the …

Discrimination: The Difference With Aids, Raymond C. O'Brien

Scholarly Articles

No abstract provided.

Curran Versus Catholic University Of America, Gerard V. Bradley

Journal Articles

From the Introduction

America's most celebrated recent episode of ecclesiastical « dissent » reached its legal conclusion in Curran v. Catholic University of America. Fr. Curran says he will not pursue appellate review. Consequently, Judge Weisberg's ruling in favor of CUA, plus Fr. Curran's refusal to teach anything but Catholic theology, mean that the « dissenter » will pursue his academic career elsewhere. But, while conclusive, the ruling is hardly the « landmark decision » one Catholic editor termed it.

How could a theological and ecclesiological controversy of such magnitude be emptied of its sacred content? How could Judge …

Justice Scalia And The Elusive Idea Of Discrimination Against Interstate Commerce, Richard B. Collins

Publications

No abstract provided.

Political Pressure And Judging In Constitutional Cases, Robert F. Nagel

Publications

No abstract provided.

Meeting The Enemy, Robert F. Nagel

Publications

No abstract provided.

Rethinking First Amendment Assumptions About Racist And Sexist Speech, Rodney A. Smolla

Faculty Publications

No abstract provided.

Domination, Democracy, And The District: The Statehood Position, Jamin B. Raskin

Scholarly Articles in Law Reviews & Journals

No abstract provided.

"Let Congress Do It": The Case For An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall

Michigan Law Review

The sporadic way that various members of the Supreme Court and the legal community treat the principle of stare decisis is increasingly striking. At times, the rule of stare decisis appears to be trotted out in defense of decisions that were actually reached on quite independent grounds. At other times, the dictates of the rule appear to be casually ignored when other factors call for the overruling of a precedent. It is tempting, therefore, to dismiss the rule of stare decisis as a mere rhetorical device, much like the question of whether a Supreme Court nominee's judicial philosophy is an …

The First Amendment And The Flag, Bruce Berner

Law Faculty Publications

No abstract provided.

Law And Disorder, Robert W. Gordon

Indiana Law Journal

No abstract provided.

A Political-Choice Approach To Limiting Prejudicial Evidence, J. Alexander Tanford

Indiana Law Journal

No abstract provided.

Murray V. United States: The Bell Tolls For The Search Warrant Requirement, Craig M. Bradley

Indiana Law Journal

No abstract provided.

On Amending The Constitution: A Plea For Patience, Ruth Bader Ginsburg

University of Arkansas at Little Rock Law Review

No abstract provided.

Compensation For Constitutional Torts: Reflections On The Significance Of Fault, John C. Jeffries Jr.

Michigan Law Review

This essay is about a neglected aspect of the problem of redressing constitutional violations. Most discussions focus on incentive effects. Unconstitutional conduct can be discouraged by the "hands-on" mechanism of reform by injunction or, more commonly, through the indirection of deterrence. Deterrence issues include selection of the penalties needed to deter official misconduct; the risk that they may also inhibit legitimate government activity; the recruitment of private attorneys general to augment enforcement; and various costs of administration. These and other aspects of deterrence pervade discussions in the Supreme Court. They are also debated in a rich and sophisticated secondary literature. …

Principles, Politics, And Constitutional Law, Mark Tushnet

Michigan Law Review

The contrast in Senator Thurmond's performance in hearings concerning Judge Bork, whose nomination he supported, and Justice Marshall, whose nomination he opposed, suggests the apparently cynical view that one's position on the proper scope of senatorial inquiry during a nomination depends upon one's position on the merits of the nomination. Much has been written, usually provoked by controversial nominations, about the proper scope of senatorial inquiry. The press of immediate controversy, however, diverts attention from more fundamental issues about the nature of constitutional government, to which I devote this essay.