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Federal Criminal Law: The Need, Not For Revised Constitutional Theory Or New Congressional Statutes, But The Exercise Of Responsible Prosecutive Discretion, G. Robert Blakey

UC Law Journal

The state and federal courts largely exercise concurrent jurisdiction over most criminal law matters. Consequently, most discussions of federalization of crime involve the theoretical question of what crimes should or should not be federalized. Professor Blakey argues that an answer to this question can easily be found in the Constitution.

In his Article, Professor Blakey contends that the true focus of the discussion should not be on "federalization." Rather, he maintains, a meaningful evaluation of the federal system of criminal justice should question whether the system is responding to the antisocial behavior that leads to crime. The author believes we …

Book Reviews

Journal of Criminal Law and Criminology

No abstract provided.

Book Review: Rethinking The American Constitutional Tradition: National Dimensions In The Formulation Of State Constitutions, Christian G. Fritz

Faculty Scholarship

Founding the Far West is an important scholarly contribution to nineteenth-century American history. However, its analysis of how California, Oregon, and Nevada became states identifies a dynamic that fails to capture the tradition of American constitution-making. Only when state constitution-making is more widely studied can the dimensions of that tradition be understood in ways that will integrate the meaning of the state constitutional experience. So too, the recent interest in state constitutions as documents having an independent source of constitutional authority may curb the ingrained habit of studying American constitutional law from "the top down" and encourage scholars to bring …

Enriching The Legal Ethics Curriculum: From Requirement To Desire, Heidi Li Feldman

Georgetown Law Faculty Publications and Other Works

The problem has become all too familiar: Acting at least in part from noble motives, the American Bar Association ("ABA") requires all law students at ABA-accredited law schools to take a course in "professional responsibility." Every accredited school offers a course or courses that enable students to fulfill this requirement. Under these circumstances, the professional responsibility course can easily assume the character of high school drivers' education or health classes: It often becomes an obligatory exercise, in which students think they must woodenly learn the maxims of the ABA Code of Conduct or Rules of Professional Responsibility. Faced with this …

History 'Lite' In Modern American Constitutionalism, Martin S. Flaherty

Faculty Scholarship

No abstract provided.

Ten Arguments For The Abolition Of Regulatory Takings Doctrine, J. Peter Byrne

Georgetown Law Faculty Publications and Other Works

The Takings Clause of the Fifth Amendment prohibits the federal government from "taking" property for a public purpose without paying just compensation. The Supreme Court has come to interpret the clause to require that the government compensate real property owners in some unclear class of cases when regulation of the property has resulted in severe economic losses. The proposition that regulation alone, without appropriation, occupation, or use by the government, can work a taking is known as the "regulatory takings" doctrine.

Federal Criminal Law: The Need, Not For Revised Constitutional Theory Or New Congressional Statutes, But The Exercise Of Responsible Prosecutive Discretion, G. Robert Blakey

Journal Articles

My basic point is that major aspects of systems of legal justice deal with antisocial behavior. That an aspect of these systems may be categorized as “criminal,” “civil,” “state,” “federal,” or “international,” is relevant principally to a question of legal theory or governmental organization, which is fundamentally secondary to the character of the behavior itself. In short, we have to look at the behavior first–and only then ask questions of legal theory or governmental organization.

We should not be talking about “federalization.” That is a constitutional question to which we now have a fairly clear constitutional answer. Little or no …

Assertive Modesty: An Economics Of Intangibles, Wendy J. Gordon

Faculty Scholarship

At the center of our Symposium stand two papers: "A Manifesto Concerning the Legal Protection of Computer Programs" (Manifesto) and "Legal Hybrids: Between the Patent and Copyright Paradigms" (Legal Hybrids). Both are stimulating. Both are lengthy. As a result, my primary role is that of a guide: this Comment will summarize the authors' proposals, analyze certain aspects in greater detail, and outline their explicit and implicit methodologies. Part I of the Comment describes the papers' positions and methodologies. Part II highlights some of the papers' many contributions to the literature, and offers some other evaluative observations.

Mission Revival Jurisprudence: State Courts And Hispanic Water Law Since 1850, Peter L. Reich

Washington Law Review

In this Article, the author argues that after the United States' annexation of the Southwest, state judges in California, New Mexico, and Texas knowingly distorted the communal nature of applicable Spanish and Mexican water law. While previous scholars have acknowledged that courts misinterpreted municipal and riparian water rights originating in the Southwest's Hispanic period, most historians have attributed the distortion to ignorance rather than design. Using archival sources, the author demonstrates that American judges created an historical fiction of "Spanish" absolute water control, and intentionally disregarded actual law and custom dictating water apportionment. The resulting doctrines of pueblo water rights …

Ninth Life: An Interpretive Theory Of The Ninth Amendment, Chase J. Sanders

Indiana Law Journal

No abstract provided.

Liberty And Property: Lord Bramwell And The Political Economy Of Liberal Jurisprudence Individualism, Freedom, And Utility, David Abraham

Articles

No abstract provided.

Putting The People Back Into The Fourth Amendment, Ronald J. Bacigal

Law Faculty Publications

This Article attempts to answer such questions by examining the evolution of search-and-seizure law in America. Although the structural nature of decision making embodied in the Bill of Rights has far-ranging implications for that entire document, I limit my consideration to the unique aspects of the Fourth Amendment. In doing so I have followed the suggestion that constitutional interpretation considers a threefold question: "Does the Constitution mean what it was meant to mean, or what it has come to mean, or what it ought to mean?" Part I examines the historical involvement of juries in search-and-seizure cases; Part II considers …

Doctor Duxbury’S Cure: Or, A Note On Legal Historiography, Peter Goodrich

Cardozo Law Review

No abstract provided.

The Killing Time: A Legal History Of Aboriginal Resistance In Colonial Australia, Sidney Harring

Publications and Research

No abstract provided.

Constitutional Law - Equal Protection - Voting Rights Act Of 1965 - Racial Redistricting And Gerrymandering - Election Discrimination, Christopher J. Soller

Duquesne Law Review

The Supreme Court of the United States held that the allegation that a North Carolina General Assembly redistricting scheme was so irrational on its face that it could only be understood as an effort to segregate voters into separate voting districts because of their race without sufficient justification, was adequate to state a claim for which relief may be granted under the Equal Protection Clause of the Fourteenth Amendment.

Shaw v. Reno, 113 S. Ct. 2816 (1993).

The International Commercial Arbitration Explosion: More Rules, More Laws, More Books, So What?, James H. Carter

Michigan Journal of International Law

Review of The UNCITRAL Framework for Arbitration in Contemporary Perspective by Isaak I. Dore

History, Theory, And The Constitution, Herman Belz

Constitutional Commentary, Vols 1–36 (1984–2022)

No abstract provided.

Presidential Defiance Of Unconstitutional Laws: Reviving The Royal Prerogative, Christopher N. May

UC Law Constitutional Quarterly

The yet to be authorized 'line item veto' advocated by recent administrations pales in comparison to the 'absolute item veto' already wielded by an 'Imperial Presidency'. When the Executive refuses to enforce disfavored statutes, the effect is a veto without Congressional override. Can such a power be reconciled with our government scheme? A review of the Framer's intent shows that it was believed that the Constitution conferred on the Executive no general power to avoid enforcing unconstitutional statutes. Rather, the Executive must work within the parameters of its grant to achieve its objectives.

Evidence of presidential defiance can be traced …

Professionalism As Class Ideology: Civility Codes And Bar Hierarchy, Amy R. Mashburn

Valparaiso University Law Review

No abstract provided.

Reconceiving Interpretive Autonomy: Insights From The Virginia And Kentucky Resolutions, Wayne D. Moore

Constitutional Commentary, Vols 1–36 (1984–2022)

No abstract provided.

When The Cure For The Fourth Amendment Is Worse Than The Disease, Tracey Maclin

UF Law Faculty Publications

No abstract provided.

City Versus Countryside: Environmental Equity In Context, A. Dan Tarlock

Fordham Urban Law Journal

This Article takes an approach to the problem of environmental equity that is different from the remedies advocated by the leaders of the environmental equity movement. The plea that the benefits of environmental protection be extended to all groups in society is, of course, a legitimate one, but the movement is too narrowly focused and its aims are too modest. I dissent from the two central premises held by environmental equity advocates. First, the movement assumes that judicially recognized and enforced rights will lead to improved public health. Second, the movement asserts that disadvantaged communities should adopt a “Not in …

The Dark Secret Of Progressive Lawyering: A Comment On Poverty Law Scholarship In The Post-Modern, Post-Reagan Era, William H. Simon

Faculty Scholarship

In 1971, Stephen Wexler argued in "Practicing Law for Poor People" that what poverty lawyers should be doing was, in a word, organizing. I Wexler flaunted a tough-minded disdain, not only for individual claim assertion, but also for the purely individual concerns of particular clients. Instead, he advocated efforts to assist the poor to collective power.

In his 1977 diagnosis of the state of poverty practice, Gary Bellow argued that what legal services lawyers should be doing was "focused case pressure." He proposed aggregating small housing or welfare claims in order to generate pressure on institutions engaged in systemic misconduct …

Who Will Guard The Guardians? Independent Counsel, State Secrets, And Judicial Review, Matthew N. Kaplan

Nova Law Review

No abstract provided.

The Estonian Securities Market Act: A Lesson For Former Republics Of The Soviet Union, John J.A. Burke

Vanderbilt Journal of Transnational Law

This Article describes and analyzes the Estonian Securities Market Act; the only securities statute presently in effect in Estonia. Before examining the requirements of that law, the Article provides an overview of the development of a securities market in Estonia, including a description of the securities, exchanges, and professionals that comprise the contemporary market. After providing this context, the Article analyzes the Estonian Securities Market Act. The author concludes that Estonia should not adopt complex securities legislation, but rather should "sample" the laws of other states. This process will allow Estonia to tailor a comprehensive regulatory system to the particular …

Avoiding Takings "Accidents": A Tort Perspective On Takings Law, Eric Kades

University of Richmond Law Review

Viewing the Takings Clause of the Fifth Amendment as a form of insurance appeals to our intuition. The government, like fire, does not often "take" property, but when faced with extraordinary risk property owners naturally desire compensation. Recent scholarship, however, has dissolved the attractiveness of this perspective. This literature, through economic analysis, claims that the Takings Clause should be repealed and replaced with private takings insurance. This is the "no-compensation" result.

Defining Religion And The Present Surpreme Court, C. John Sommerville

University of Florida Journal of Law & Public Policy

No abstract provided.

Avoiding Takings “Accidents”: A Torts Perspective On Takings Law, Eric Kades

Faculty Publications

Viewing the Takings Clause of the Fifth Amendment as a form of insurance appeals to our intuition. The government, like fire, does not often "take" property, but when faced with extraordinary risk property owners naturally desire compensation. Recent scholarship, however, has dissolved the attractiveness of this perspective. This literature, through economic analysis, claims that the Takings Clause should be repealed and replaced with private takings insurance. This is the "no-compensation" result. This article argues that the insurance-based understanding of the just compensation requirement can be preserved without reaching the surprising no-compensation result. The intuitive appeal of understanding the Takings Clause …

Reading Poethics, Robert Weisberg

Cardozo Law Review

The advent of law-and-literature scholarship, or at least the pronouncement of Law and Literature as a major new scholarly enterprise, reflects a general tendency in our culture to look to literature as a source of spiritual renewal, as a means of reclaiming a vaguely defined but emotionally evocative legacy. Such a turn to literature for renewal is ironic, since, as Richard Poirier points out, it is literature itself whose internal troubles seem to best reflect the various types of alienation, malaise, and disbelief which are said to distress modern culture. In that regard, it may be more appropriate to look …

Listening For The Future In The Voices Of The Past: John T. Noonan, Jr. On Love And Power In Human History, M. Cathleen Kaveny

Journal Articles

A discussion of works on moral theology and canon law by Judge John T. Noonan Jr. (1926-2017) from the 1950s to the 1980s, which deal with the subjects of usury, contraception, marriage, slavery, bribery and religious liberty. Its focus is on Noonan’s normative commitments regarding epistemology, theological anthropology and the relation of love, justice and law. The article argues that Noonan was influenced by three core ideas, an epistemological view that moral knowledge is sought after and articulated in particular times and places, an anthropological view that argues the study of ethics, law, and theology must sensitively discern the core …