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Rule 11 In The Constitutional Case, Gary J. Saalman, Kenneth Ripple

Journal Articles

The 1983 amendments to the Rules of Civil Procedure arose from concern over the flood of litigation in recent years and its high costs to both litigants and the court system. Although the causes of this litigation explosion and the remedies are both many and complex, the pretrial stage of litigation and the standards governing attorney responsibility were considered major contributors to the problem and prime areas for reform. The drafters of the 1983 amendments sought to streamline the litigation process by increasing judicial oversight and deterring abusive or dilatory tactics by the bar. Some of the most significant changes …

Pope V. Illinois: The Reasonable Person As The Supreme Court's Latest Arbiter Of Obscenity, Penny E. Paul

Cardozo Arts & Entertainment Law Journal

No abstract provided.

The Politics Of The First Amendment, Steve Bachmann

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Ventriloquism And The Verbal Icon: A Comment On Professor Hogg's "The Charter And American Theories Of Interpretation", Richard F. Devlin

Osgoode Hall Law Journal

In this brief comment I offer some critical reflections on Professor Hogg's proposed approach to Charter interpretation. I suggest that Professor Hogg's attempt to legitimize and constrain judicial review is an exercise in confession and avoidance. On the one hand, he admits that "interpretivism" is explanatorily inadequate, yet on the other he refuses to accept "non-interpretivism" for he realizes that it has the potential to unmask the politics of law. I argue that Hogg's third way - that Charter interpretation should be progressive and purposive - is incapable of bearing the legitimizing weight which he requires in that it necessitates …

Stare Decisis And Constitutional Adjudication, Henry Paul Monaghan

Faculty Scholarship

Despite endless literature urging that constitutional adjudication be severed from explorations into the understandings at the creation of the Constitution, original understanding continues to play a prominent role in the Supreme Court's jurisprudence. For the Court, originalism seemingly provides a legitimate ground for decisionmaking; for the people, it provides assurances against judicial usurpation of power properly belonging to other branches of government, or retained by the people themselves.

But difficulties with originalism emerge once the existing constitutional order is actually examined. The Supreme Court's repeated invocations of the Framers' understanding notwithstanding, a significant portion of our constitutional order cannot reasonably …

The Committee On The Constitutional System Proposals: Coherence And Dominance, Philip Chase Bobbitt

Faculty Scholarship

I have been a fellow traveler of the Committee on the Constitutional System virtually since its inception; indeed, I believe I was present when Mr. Cutler first made the speech at the University of Texas that became, "To Form a Government." During all this time I have never been able to quite free myself from the conviction that his concerns were absolutely right and fundamental to our era. Nor have I been able to persuade myself that the reforms that he recommends justify a departure from the framers' conception. I suppose this is why I was selected to give a …

The Confirmation Process: Law Or Politics?, Henry Paul Monaghan

Faculty Scholarship

In testimony before the Senate Judiciary Committee, I argued (and still believe) that Judge Robert Bork possessed surpassing qualifications for an appointment to the Supreme Court. Subsequently, I became persuaded that my submission was incomplete. Additional argument was necessary to establish that my testimony, if accepted, imposed a constitutional duty on senators to vote for confirmation. To my surprise, further reflection convinces me that no such argument is possible.

Privatization Of Prisons: An Analysis Of The State Action Requirement Of The Fourteenth Amendment And 42 U.S.C. § 1983, Ira Robbins

Scholarly Articles in Law Reviews & Journals

Introduction: The privatization of prisons raises important issues with respect to liability in suits brought by inmates. If a private company operates the prison, the state likely will be directly involved in some aspects of prison life, such as using force when necessary or making quasi-judicial decisions, but it may not be directly involved in the day-to-day operation of the institution. This dichotomy of involvement may lead to con- fusion over responsibility and accountability when a violation of rights is alleged to have occurred. When a private party, as opposed to a government employee, is charged with abridging rights guaranteed …

Restoring The Confrontation Clause To The Sixth Amendment, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

Toward A General Theory Of The Establishment Clause, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Comments On Commercial Speech, Constitutionalism, Collective Choice, Kenneth G. Dau-Schmidt

Articles by Maurer Faculty

No abstract provided.

Communities, Texts, And Law: Reflections On The Law And Literature Movement, Robin West

Georgetown Law Faculty Publications and Other Works

How do we form communities? How might we form better ones? What is the role of law in that process? In a recent series of books and articles, James Boyd White, arguably the modern law and literature movement's founder, has put forward distinctively literary answers to these questions. Perhaps because of the fluidity of the humanities, White's account of the nature of community is not nearly as axiomatic to the law and literature movement as is Posner's depiction of the "individual" to legal economists. Nevertheless, White's conception is increasingly representative of the literary-legalist's world view. Furthermore, with the exception of …

The Authoritarian Impulse In Constitutional Law, Robin West

Georgetown Law Faculty Publications and Other Works

Should there be greater participation by legislators and citizens in constitutional debate, theory, and decision-making? An increasing number of legal theorists from otherwise divergent perspectives have recently argued against what Paul Brest calls the "principle of judicial exclusivity" in our constitutional processes. These theorists contend that because issues of public morality in our culture either are, or tend to become, constitutional issues, all political actors, and most notably legislators and citizens, should consider the constitutional implications of the moral issues of the day. Because constitutional questions are essentially moral questions about how active and responsible citizens should constitute themselves, we …

Reconceiving The Ninth Amendment, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The courts long have protected constitutional rights that are not listed explicitly in the Constitution, but are they warranted in doing so? As scholars and commentators vigorously debate this and other questions about the appropriate role of judges in interpreting the Constitution, the Ninth Amendment has assumed increasing importance. Its declaration that "[t]he enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" has suggested to many that the set of rights protected by the Constitution is not dosed and that judges may be authorized to protect these "unenumerated" rights …

The Ninth Amendment And Constitutional Legitimacy: Foreword To The "Symposium On Interpreting The Ninth Amendment", Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Does the Constitution of the United States of America impart legitimacy on legislation enacted under its auspices? If so, how? Is a citizen bound in conscience to obey such legislation? If so, why? Does legislation create a duty of obedience simply because it was enacted by a group of persons calling themselves a "legislature," or is there some other reason? Would any constitution impart such legitimacy or is there something special about the character of those that do? If the latter, does the United States Constitution have the requisite character?

While I shall not definitively answer these questions in this …

Monkeying Around With The Establishment Clause And Bashing Creation-Science, Gary C. Leedes

University of Richmond Law Review

This article examines the nature of scientific creationism and its educational value. Creation scientists and evolutionists study the origins of life, but their disagreements produce controversies that radiate far beyond the scientific community. Controversies about the content of science courses in public schools are widely reported in the press and have become political footballs. The debates between Clarence Darrow and William Jennings Bryan, and their contemporary counterparts, are the themes of motion pictures and plays. There is enormous public interest in the battle that is portrayed by combatants on both sides as a fight involving not only academic freedom but …

Unborn Child: Can You Be Protected?, Heather M. White

University of Richmond Law Review

Continuing medical advancement in the area of prenatal care' raises the question of when, if ever, the state may intervene in the life of a pregnant woman to protect her unborn child from abuse and neglect. This issue, though troublesome, can no longer be ignored. Since the Supreme Court's decision in Roe v. Wade, giving the pregnant woman the constitutional right to decide whether or not to terminate her pregnancy, there has been abundant controversy over the allowance of state intervention to protect the human fetus. This controversy necessarily entails a discussion as to when and in what manner the …

The President's Powers As Commander-In-Chief Versus Congress' War Power And Appropriations Power, Charles W. Bennett, Arthur B. Culvahouse, Geoffrey P. Miller, William Bradford Reynolds, William W. Van Alstyne

Faculty Publications

This joint work explores a variety of viewpoints all centered around the War Powers Resolution and its application to the situation in the Persian Gulf.

The Constitution Between Friends, Neal Devins

Faculty Publications

No abstract provided.

Comments On Professor Rotunda's Essay, Richard H. Underwood

Kentucky Law Journal

No abstract provided.

Reflections On The Senate's Role In The Judicial Impeachment Process And Proposals For Change, Mitch Mcconnell

Kentucky Law Journal

No abstract provided.

Judicial Discipline: A Legislative Perspective, Robert W. Kastenmeier, Michael J. Remington

Kentucky Law Journal

No abstract provided.

The Unwed Father And The Right To Know Of His Child's Existence, John R. Hamilton

Kentucky Law Journal

No abstract provided.

The Establishment Clause And Nativity Scenes: A Reassessment Of Lynch V. Donnelly, Richard S. Myers

Kentucky Law Journal

No abstract provided.

Low-Level Equal Protection: The Scope And Logic Of Deferential Review, R. George Wright

Kentucky Law Journal

No abstract provided.

The Federalist Papers And The Constitution Of The United States, Peter E. Quint

Kentucky Law Journal

No abstract provided.

The President’S Powers As Commander-In-Chief Versus Congress’ War Power And Appropriations Power, Charles Bennett, Arthur B. Culvahouse Jr., Geoffrey P. Miller, William Bradford Reynolds, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

The Search For An Author: Shakespeare And The Framers, James Boyle

Faculty Scholarship

No abstract provided.

Enforcement Provisions Of The Civil Rights Act Of 1866: A Legislative History In Light Of Runyon V. Mccrary, The Review Essay And Comments: Reconstructing Reconstruction, Robert J. Kaczorowski

Faculty Scholarship

The purpose of this Comment is to examine the history of the enactment and early enforcement of the Civil Rights Act of 1866 from the perspective of the remedies Congress sought to provide to meet the problems that necessitated the legislation. Its main foci are the statute's enforcement provisions and their early implementation, an aspect of the history of the statute that has not been fully considered in relation to section one, the provision that has received the most scholarly attention. The occasion of this study is the Supreme Court's reconsideration of Runyon v. McCrary' in Patterson v. McLean Credit …

A Radical Intent, Michael A. Simons

Faculty Publications

(Excerpt)

Much of the recent debate regarding constitutional interpretation has focused on the relevance of the Framers' intent. Attorney General Edwin Meese III has urged judges to "resurrect the original meaning of constitutional provisions." In contrast, Justice William Brennan has argued that courts should adapt the Constitution to "cope with current problems and current needs." A key disagreement involves whether the Bill of Rights protects citizens against state as well as federal government abuses. Some scholars have called for a rollback of Supreme Court decisions that incorporate provisions of the Bill of Rights in the fourteenth amendment, arguing that these …