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Political Law, Legalistic Politics: A Recent History Of The Political Question Doctrine, Robert F. Nagel

Publications

No abstract provided.

The Constitution's Accommodation Of Social Change, Philip A. Hamburger

Faculty Scholarship

Did the framers and ratifiers of the United States Constitution think that changes in American society would require changes in the text or interpretation of the Constitution? If those who created the Constitution understood or even anticipated the possibility of major social alterations, how did they expect constitutional law – text and interpretation – to accommodate such developments?

The Future And The First Amendment, Lee C. Bollinger

Faculty Scholarship

It is my honor and pleasure to deliver this year's Sullivan Lecture. I have an especially warm feeling toward this Law School. Two years ago, at the invitation of your Professor Distelhorst, I participated in the Capital Law School program for teaching American law to Japanese lawyers. For five stimulating weeks I enjoyed the intellectual and social company· of Japanese attorneys, while teaching them the outlines of American constitutional law. Twice a week, in the evening, for three continuous hours, and after a full work day, these dedicated lawyers would willingly become students again and suffer patiently through my highly …

Governmental Aid To Religious Entities: The Total Subsidy Position Prevails, G. Sidney Buchanan

Fordham Law Review

No abstract provided.

God Bless The Child?: The Use Of Religion As A Factor In Child Custody And Adoption Proceedings, Donald L. Beschle

Fordham Law Review

No abstract provided.

James Wilson's "Assimilation Of The Common-Law Mind", Stephen A. Conrad

Articles by Maurer Faculty

No abstract provided.

Diagnostic Adjudication In Appellate Courts: The Supreme Court Of Canada And The Charter Of Rights, Carl Baar, Ellen Baar

Osgoode Hall Law Journal

Three distinct adjudicatory processes are found in appellate courts: decisional adjudication (applying principles), procedural adjudication (choosing among principles), and diagnostic adjudication (defining and developing principles). The Supreme Court of Canada has traditionally used procedural adjudication, in which the adversary process frames issues and generates supporting material. However, the Court's decreased caseload, its increased discretion to select cases, and the arrival of a new wave of issues under the Charter of Rights has shifted the Court's work to diagnostic adjudication. As judgment becomes less a choice problem and more a creative exercise, both the degree and kind of judicial involvement changes. …

Constitutional Arguments: Interpretation And Legitimacy In Canadian Constitutional Thought, Joel C. Bakan

Osgoode Hall Law Journal

The author provides an analysis and critique of the various types of arguments advanced by Canadian constitutional jurists to establish formal grounds for the legitimacy of judicial review under the Canadian constitution. He demonstrates how two variables - constitutional truth and trust in the judiciary - are relied upon in past and contemporary debates about constitutional adjudication to construct four different types of argument about the legitimacy of judicial review. Each of these types of argument is then criticized in the context of recent Charter decisions. It is argued that none of them can sustain the burden of legitimating judicial …

Commentary, The Selling Of Jury Deliberations, Robert F. Nagel

Publications

No abstract provided.

A Comment On The Rule Of Law Model Of Separation Of Powers, Robert F. Nagel

Publications

No abstract provided.

Forgetting The Constitution, Robert F. Nagel

Publications

No abstract provided.

Constitutional Law, William L. Monts Iii, Jeffrey M. Nelson

South Carolina Law Review

No abstract provided.

Constitutional Protection Of The Right To An Education, William F. Foster, Gayle Pinheiro

Dalhousie Law Journal

The education of its citizenry is often recognized as one of the most important public services provided by the state. The history of the rise and development of public education in the provinces of Canada reveals, above all, the influence of the Protestant and Roman Catholic churches. The educational philosophy, aims and broader objectives of the public education system reflected the moral and religious doctrines of the faith which had sponsored the founding of the institution. Yet there also existed a pervasive belief among the general populace in the power of education to support and nourish basic democratic values. Moreover, …

Constitutional Law (Kempo), Jutta Brunnée

Dalhousie Law Journal

In 1976 Carl Heymanns Verlag published the first volume of a series on Japanese law. A recent addition to this collection covering areas as diverse as civil and criminal procedure, labor law, nuclear energy law, and international law, is Miyazawa Toshiyoshi's (1899-1976) book on constitutional law. With this German translation, Robert Heuser and Yamasaki Kazuaki provide their readers with the first systematical overview on Japanese constitutional law in a western language.

Covenants And Constitutions , Richard A. Epstein

Cornell Law Review

No abstract provided.

Independent Agencies: Form And Substance In Executive Prerogative, Glen O. Robinson

Duke Law Journal

Among other things, the Supreme Court's decision in Morrison v. Olson, 1 upholding Congress's authorization of independent counsel to investigate and prosecute high-ranking government officials for violation of federal criminal laws, presumably will chill speculation that the Supreme Court is prepared to rethink the constitutionality of the independent agencies. Prior to the 1980s the constitutionality of the independent agencies had generally been thought secure on the strength of Humphrey's Executor. 2 Despite recurrent criticism of that decision, 3 there was no basis to think it was especially vulnerable. The Court's recent fascination with separation of powers, 4 however, invited speculation …

Cable Television And The Freedom Of Expression, Daniel Brenner

Duke Law Journal

In 1973, cable television operators primarily carried broadcast signals that could not be received adequately over the air. That year, a Cabinet-level committee recommended that regulation of cable fundamentally change when the cable industry penetrated fifty percent of U.S. homes. Instead of selecting any of their program services, the cable operators would be treated as pure carriers, leaving others to program. 1 The United States recently passed that supposed milestone. 2 Yet the 1973 policy recommendation is about as likely to get a second hearing as the Articles of Confederation. By 1975, Home Box Office had launched cable's first satellite …

Government Official Torts And The Takings Clause: Federalism And State Sovereign Immunity, Jack M. Beermann

Faculty Scholarship

In this article, I argue that state sovereign and official immunities, insofar as they bar recovery when private parties would be liable for similar conduct, are unconstitutional under the takings clause of the fifth amendment, as applied to the states under the fourteenth.²² A state's refusal to compensate plaintiffs for the tortious damage or destruction of property should be redressed by the federal courts in civil actions brought under § 1983.

Section I of this article provides background through a discussion of the Supreme Court's treatment of the problem of torts committed by government officials, primarily in procedural due …

Constitutionalism In Asia: Asian Views Of The American Influence, Lawrence W. Beer

Maryland Series in Contemporary Asian Studies

No abstract provided.

Nationwide Preclearance Of Section Five Of The 1965 Voting Rights Act: Implementing The Fifteenth Amendment, Dwight Aarons

Scholarly Works

No abstract provided.

Role Of The Legislative And Executive Branches In Interpreting The Constitution , John Harrison

Cornell Law Review

No abstract provided.

Role Of The Legislative And Executive Branches In Interpreting The Constitution , Steven Ross

Cornell Law Review

No abstract provided.

Economic Union As A Constitutional Value, Richard B. Collins

Publications

Professor Collins presents an in-depth defense of the dormant commerce power doctrine. He maintains that the text of the commerce clause, the original intent behind it, and a century of congressional acquiescence to broad judicial enforcement of the dormant commerce power lend sufficient legitimacy to the doctrine to support its continued existence. After examining the textual and historical bases for the doctrine, Professor Collins concludes that the primary purpose behind the commerce clause is the promotion of economic integration and interstate harmony. Based upon his discussion of the doctrine's origins and development, he contends that critics of the doctrine who …

The Right To Family Unification In French And United States Immigration Law, John Guendelsberger

Cornell International Law Journal

No abstract provided.

Ginzburg V. United States : A Chapter In The Supreme Court's Evolving Obscenity Standard, Dennis R. Ainger

Honors Capstones

Heard by the Supreme Court in late 1965, Ginzburg v. United States has invited the Court to continue its attempts to define and clarify the limits of the First Amendment protection of materials dealing with sex, specifically the federal statute prohibiting "obscene" materials from the U.S. mails. Although the Court had previous decided in Roth v. U.S. that obscenity was not protected by the Constitution, doubts abounded about the precise definition of "obscenity." The Ginzburg standard was an attempt to solve this problem by adopting what legal experts have called "variable" obscenity, an approach to defining obscenity according to the …

Suicidal Rights, Michael S. Ariens

Faculty Articles

The legal debate regarding the right to commit suicide requires a critical review of the relationship between the individual and the community in present liberal political thought. Modern liberal political thought postulates that the government or community must be neutral about what is good both for members of the community and the community itself. It also postulates that there exists a sphere of action which affects solely an individual.

The neutrality postulate and the harm of self/harm to others dichotomy are best explicated by John Stuart Mill in his essay On Liberty, in which Mill separates and categorizes the individual …

Classical Theory Of Law , Gary Peller

Cornell Law Review

No abstract provided.

Role Of The Legislative And Executive Branches In Interpreting The Constitution , Burl Neuborne

Cornell Law Review

No abstract provided.

Role Of The Legislative And Executive Branches In Interpreting The Constitution , Robert Nagel

Cornell Law Review

No abstract provided.

Originalist Theories Of Constitutional Interpretation , Michael Moore

Cornell Law Review

No abstract provided.