Digital Commons Network^™

The Quotable Stanley Mosk, Joseph A. Wapner

UC Law Constitutional Quarterly

No abstract provided.

Constricting Federal Habeas Corpus: From Great Writ To Exceptional Remedy, Yale L. Rosenberg

UC Law Constitutional Quarterly

No abstract provided.

Injury For Standing Purposes When Constitutional Rights Are Violated: Common Law Public Value Adjudication At Work, William Burnham

UC Law Constitutional Quarterly

No abstract provided.

Executive Targeting Of Congressmen As A Violation Of The Arrest Clause, Anita Bernstein

Faculty Scholarship

No abstract provided.

Exercising Eminent Domain Against Protected Agricultural Lands: Taking A Second Look, Margaret Rosso Grossman

Villanova Law Review (1956 - )

No abstract provided.

Property Rules, Liability Rules, And Adverse Possession, Thomas W. Merrill

Faculty Scholarship

The law of adverse possession tends to be regarded as a quiet backwater. Both judicial opinions and leading treatises treat the legal doctrine as settled. The theory underlying the doctrine, although routinely discussed in the opening weeks of first-year property courses, is only rarely aired in the law reviews any more. Indeed, the most frequently cited articles on adverse possession date from the 1930s and earlier. Perhaps most tellingly, adverse possession seems to have completely escaped the attention of the modem law and economics movement – almost a sure sign of obscurity in today's legal-academic world.

Nevertheless, two recent events …

Distrust Of Democracy, Richard Briffault

Faculty Scholarship

The current rediscovery of state constitutions has had a singular and curious feature: it has been focused largely on state constitutional provisions that are analogous, if not identical, to provisions of the United States Constitution. Scholars and jurists have devoted their attention to state protections of speech, state equal protection clauses, state privileges against self-incrimination, and state proscriptions of cruel and unusual punishments, and have developed interpretations of these texts that diverge from those adopted by the United States Supreme Court in construing comparable federal constitutional provisions. These attempts to play state variations on federal constitutional themes have not been …

The Most Sacred Text: The Supreme Court's Use Of The Federalist Papers, James G. Wilson

Law Faculty Articles and Essays

In interpreting the Constitution the Supreme Court has increasingly referred to The Federalist papers, a series of essays written by Alexander Hamilton, James Madison, and John Jay during the struggle to ratify the Constitution. This article describes in narrative form how the Court has incorporated The Federalist into its opinions, and summarizes how constitutional historians and political scientists have evaluated The Federalist and the Constitution. This format highlights the limited nature of the Court's historical inquiry by demonstrating that the Court and constitutional scholars have been traveling in parallel universes. Either the Court has ignored or been unaware of the …

"We The People": John Locke, Collective Constitutional Rights, And Standing To Challenge Government Action, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

The Article is presented in three Parts. Part I documents the enormous effect that Locke's political philosophy had on the Constitution's Framers and traces the idea of collective rights through Locke's Second Treatise, showing how Locke viewed government as a trustee and society as the settlor-beneficiary that forms and gives legitimacy to the government. Part II reviews the development of the current doctrine of standing and demonstrates how the current standing model creates a class of cases where government may, with impunity, violate the Constitution. Part III demonstrates the anomaly of the Supreme Court's current doctrine in a society founded …

The Capital Defendant's Right To Make A Personal Plea For Mercy: Common Law Allocution And Constitutional Mitigation, J. Thomas Sullivan

Law Faculty Scholarship

No abstract provided.

Attorney Fees—United States Is Not Liable For Attorney Fees Under The Equal Access To Justice Act By Analogy To Section 1983, David Schoen

University of Arkansas at Little Rock Law Review

No abstract provided.

Three Generations, No Imbeciles: New Light On Buck V. Bell, Paul A. Lombardo

Faculty Publications By Year

No abstract provided.

Framers Intent: The Illegitimate Uses Of History, Pierre Schlag

Seattle University Law Review

In this Article, I will present a series of attacks on intentionalism. My efforts are aimed at eroding the high ground that the intentionalist position appears to enjoy in the interpretation of state and federal constitutions. Currently, one almost has to justify departure from the framers intent in advancing a nonconforming constitutional interpretation. This Article is an attempt to reverse this assumed burden of persuasion.

The Anatomy Of A Mosk Opinion, Eric Goldman

UC Law Constitutional Quarterly

No abstract provided.

Preservation Of Material Evidence In California: Does Hitch Survive Trombetta, Charles P. Maher

UC Law Constitutional Quarterly

No abstract provided.

Constitutional Citizenship, Paul Brest

Cleveland State Law Review

Our practices for determining issues of public morality are deeply flawed. We rely too heavily on the Supreme Court of the United States to determine them for us. We give too much responsibility to the Court, and too little to other institutions; we evade our own responsibility as citizens in a democratic polity. The problem is not that too many issues are "constitutionalized," for many of our most important public moral issues are quite properly treated as constitutional questions. The problem, rather, is that we assume that only the Court is authorized to decide, or is capable of deciding, constitutional …

The Minneapolis Anti-Pornography Ordinance: A Valid Assertion Of Civil Rights?, Winifred Ann Sandler

Fordham Urban Law Journal

The author of this student note examines a recent Minneapolis city ordinance that declares pornography to be both subordination of and a form of sex discrimination towards women. First Amendment proponents challenged the ordinance as unconstitutional. The author considers whether the state has a compelling interest in protecting its citizens from civil rights violations, and whether that interest can overcome first amendment rights. The author concludes that pornography is neither a civil rights violation, nor a category of unprotected speech.

Constitutional Fact Review, Henry Paul Monaghan

Faculty Scholarship

Bose Corp. v. Consumers Union of United States held that the clearly erroneous standard of Federal Rule of Civil Procedure 52(a) does not prescribe the scope of appellate review of a finding of actual malice in defamation cases governed by New York Times Co. v. Sullivan. Rather, as a matter of "federal constitutional law," appellate courts "must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity." Thus, in addition to the familiar judicial duty to "say what the law is," the first amendment imposes a special duty with respect to law application: both …

Children Of Distant Fathers: Sketching An Ethos Of Constitutional Liberty, Gene R. Nichol

Faculty Publications

In this article, Professor Gene R. Nichol argues for a constitutional right to self-governance that legitimizes the court's inquiry into the nature of fundamental personal rights. He locates this right in the ninth amendment, which affords protection to unlisted liberties. The clearest statement of the American commitment to selfgovernance, he argues, is found in Thomas Jefferson's Declaration of Independence, and in the philosophy of Jeffersonian individualism. Drawing on the writing of Jefferson and Lincoln, Professor Nichol asserts that our society has committed itself to "the progressive unfolding of individual sovereignty." Critics of the United States Supreme Court's decisions that give …

Schall V. Martin: Preventive Detention And Dangerousness Through The Looking Glass, Charles Patrick Ewing

Buffalo Law Review

No abstract provided.

Commentary, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

During the past year, the Court of Appeals for the Second Circuit decided a number of significant appeals involving constitutional issues. As is generally the case, most of the issues presented to the Second Circuit were also under judicial scrutiny in other federal appellate courts. Four first amendment cases decided by the court—three dealing primarily with freedom of religion and a fourth with freedom of the press—are particularly noteworthy and merit review.

The Continuing Presence Of Dred Scott, Lewis H. Larue

Washington and Lee Law Review

No abstract provided.

Washington's Equal Rights Amendment: It Says What It Means And It Means What It Says, Patricia L. Proebsting

Seattle University Law Review

This Comment begins with a discussion of the ERA's legislative history and the legislature's attempt to bring state statutes into compliance with the ERA upon its passage. Next, judicial interpretations of the new constitutional guarantee are compared to the interpretation of the Washington Constitution's privileges and immunities clause. Finally, the Comment compares Washington's standard of review with a similar standard used by the Pennsylvania Supreme Court and argues that the Washington Supreme Court should adopt the absolute standard applied by the Pennsylvania courts.

The Origins And Original Significance Of The Just Compensation Clause Of The Fifth Amendment, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

The principle that the state necessarily owes compensation when it takes private property was not generally accepted in either colonial or revolutionary America. Uncompensated takings were frequent and found justification first in appeals to the crown and later in republicanism, the ideology of the Revolution. The post-independence movement for just compensation requirements at the state and national level was part of a broader ideological shift away from republicanism, which stressed the primacy of the common good, and toward liberalism. At the time the Bill of Rights was adopted, that shift had not been completed, but the trends of the revolutionary …

An Analytical View Of Recent "Lending Of Credit" Decisions In Washington State, Hugh Spitzer

Seattle University Law Review

This Article first presents an analytic framework for assessing government actions that present possible violations of article VIII, sections 5 and 7, and then analyzes five recent cases interpreting those provisions.

Constitutional Remedies For Underinclusive Statutes: A Critical Appraisal Of Heckler V. Mathews, Bruce K. Miller

Faculty Scholarship

The power of the federal courts to remedy injuries caused by constitutional violations is a fundamental assumption of our constitutional scheme. The Supreme Court's equal protection decisions of the past generation illustrate the extent to which we take this power completely for granted. When confronted with a statute that denies a litigant's fifth or fourteenth amendment right to equal treatment, the Court has rarely limited itself to a simple declaration that the statute is unconstitutional. Such declarations, rather, have been routinely accompanied by awards of often substantial relief to the persons injured by the unconstitutional inequality. The author analyzes Heckler …

Cablespeech For Whom?, Mark S. Nadel

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Book Review Of Passion: An Essay On Personality , Richard F. Devlin Frsc

Articles, Book Chapters, & Popular Press

Passion is a cogently structured, compel Jingly argued and seductively enthralling masterpiece which, in years to come, will undoubtedly stand out as an inspirational source for many who seek social transformation. Unger's style, in this essay at least, is lucid and inviting. Substantively, Passion demonstrates not only the depth of his penetrating intellect but also his command of an array of' disciplines. Unger's polymathy is all the more impressive when we remember that ours is an era in which idiosyncratic specialization is the norm.

The First Amendment And Distributional Voting Rights Controversies, Emily M. Calhoun

Publications

No abstract provided.

Cooperative Federalism Under The Surface Mining Control And Reclamation Act: Is This Any Way To Run A Government?, Mark Squillace

Publications

No abstract provided.