Law Commons^™

The Unitary Executive During The Second Half-Century, Steven G. Calabresi, Christopher S. Yoo

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Recent Supreme Court decisions and political events have reinvigorated the debate over Congress's authority to restrict the President's control over the administration of the law. The initial debate focused on whether the Constitutional Convention rejected the executive by committee employed by the Articles of the Confederation in favor of a unitary executive in which all administrative authority is centralized in the President. More recently, the debate has turned towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features of the constitutional landscape as to preempt arguments in favor of the unitary executive. …

The Implications Of Transition Theory For Stare Decisis, Jill E. Fisch

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No abstract provided.

Entrance, Voice And Exit: The Constitutional Bounds Of The Right Of Association, Evelyn Brody

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Despite the central role of organized groups as intermediary bodies in American society, the constitutional right of association is surprisingly recent and limited. As the Supreme Court struggles to define the bounds of 'the' freedom of association, it is time to take a critical look at a difficult set of questions. First, many private organizations engage in various types of selection criteria, but what subjects the Jaycees to State anti-discrimination laws but insulates the Boy Scouts of America? Second, the typical American nonprofit organization is a corporation that lacks both shareholders and members, so are there any 'associates' whose rights …

Extraterritoriality And Political Heterogeneity In American Federalism, Mark D. Rosen

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It is commonly understood that as a matter of federal law, states' substantive policies may diverge in respect of those matters that are not violative of the United States Constitution. As a practical matter, however, what degree of political heterogeneity among states is possible vis-a-vis substantive policies that are not unconstitutional? The answer to the question turns in large part on whether states, if they so choose, can regulate their citizens even when they are out-of-state. If they cannot, citizens can bypass their home state’s laws by simply traveling to a more legally permissive state to do there what is …

The Radical Possibility Of Limited Community-Based Interpretation Of The Constitution, Mark D. Rosen

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This Article explores a radical method under the U.S. Constitution for devolving extraordinary political power to select communities. The United States Constitution places limitations on the exercise of public power by sub-federal polities. When insular groups seek to exercise public power to govern themselves, however, there may be special constitutional limitations that are operative - doctrines that afford their local governments more options in the exercise of power than ordinary state and local governments enjoy. The Article shows that Congress may grant the communities the authority to construe designated provisions of the United States Constitution insofar as the provisions apply …

The Gfp (Green) Bunny: Reflections On The Intersection Of Art, Science And The First Amendment, Sheldon Nahmod

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No abstract provided.

What's So Special About American Law?, William Ewald

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Mt. Healthy And Causation In Fact: The Court Still Doesn't Get It!, Sheldon Nahmod

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No abstract provided.

The Real Separation In Separation Of Powers Law, Elizabeth Magill

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This Article argues that contemporary separation of powers commentary is misconceived. Despite the disagreement that dominates the commentary, a closer look at that debate reveals a surprise: commentators subscribe to a consensus about separation of powers. Once exposed, however, that consensus turns out to be underdeveloped, confused, and possibly incoherent. This Article, first, identifies the latent consensus about separation of powers, and, second, critically examines the consensus. The Article argues that the present consensus must be abandoned or refashioned in some as-yet-undeveloped way.

Separation of powers commentary is conventionally thought to be dominated by a contest between adherents of "formalist" …

Our Nonuniform Constitution: Geographical Variations Of Constitutional Requirements In The Aid Of Community, Mark D. Rosen

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This Article highlights an overlooked but integral aspect of American constitutional law: that some activities believed to be flatly unconstitutional are permissible in select locations. Contrary to what the Constitution has been construed to proscribe in most jurisdictions, for example, governments in some places in our country can ban political speeches by citizens, impose prior restraints with regard to petitions to government officials, and disallow defendants at risk of incarceration from having counsel.

The Article brings together the case law that creates nonuniformity across geographical locations. It first explains the mechanics by which this "geographical constitutional nonuniformity" is generated and …

The Legalization Of The Presidencey: A Twenty-Five Year Watergate Retrospective, Michael A. Fitts

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No abstract provided.

The New Etiquette Of Federalism: New York, Printz, And Yeskey, Matthew D. Adler, Seth F. Kreimer

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No abstract provided.

Notes On Notes, Margaret G. Stewart

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No abstract provided.

The Supreme Court As An Enforcement Agency, Harold J. Krent

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No abstract provided.

The Second Time As Tragedy: The Assisted Suicide Cases And The Heritage Of Roe V. Wade, Seth F. Kreimer

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No abstract provided.

From Black And White To High Definition Equal Protection, Seth F. Kreimer

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No abstract provided.

Exploring The Dark Matter Of Judicial Review: A Constitutional Census Of The 1990s, Seth F. Kreimer

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Most debate about the power of judicial review proceeds as if courts primarily invoke the Constitution against the considered judgment of elected legislatures; most constitutional commentary focuses on confrontations between the United States Supreme Court and state or federal legislatures. In fact, the federal courts most often enforce constitutional norms against administrative agencies and street-level bureaucrats, and the norms are enforced not by the Supreme Court but by the federal trial courts. In this Article, Professor Kreimer surveys this "dark matter" of our constitutional universe.

The Article compares the 292 cases involving constitutional claims decided by the Supreme Court during …

The Unitary Executive During The First Half-Century, Steven G. Calabresi, Christopher S. Yoo

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Recent Supreme Court decisions and the impeachment of President Clinton has reinvigorated the debate over Congress’s authority to employ devices such as special counsels and independent agencies to restrict the President’s control over the administration of the law. The initial debate focused on whether the Constitution rejected the “executive by committee” employed by the Articles of the Confederation in favor of a “unitary executive,” in which all administrative authority is centralized in the President. More recently, the debate has begun to turn towards historical practices. Some scholars have suggested that independent agencies and special counsels have become such established features …

Does Pro-Choice Mean Pro-Kevorkian? An Essay On Roe, Casey, And The Right To Die, Seth F. Kreimer

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No abstract provided.

The Proposed Equal Protection Fix For Abortion Law: Reflections On Citizenship, Gender, And The Constitution, Anita L. Allen

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No abstract provided.

Civil Penalties And Multiple Punishment Under The Double Jeopardy Clause: Some Unanswered Questions, David S. Rudstein

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No abstract provided.

"But Whoever Treasures Freedom...": The Right To Travel And Extraterritorial Abortions, Seth F. Kreimer

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No abstract provided.

The Public Square And The Jew As Religious Other, Sheldon Nahmod

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No abstract provided.

Natural Rights, Positivism And The Ninth Amendment: A Response To Mcaffee, Steven J. Heyman

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No abstract provided.

Adam, Eve And The First Amendment: Some Thoughts On The Obscene As Sacred, Sheldon Nahmod

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No abstract provided.

Autonomy's Magic Wand: Abortion And Constitutional Interpretation, Anita L. Allen

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No abstract provided.

Tribe's Judicious Feminism, Anita L. Allen

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No abstract provided.

The Sacred Flag And The First Amendment, Sheldon Nahmod

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No abstract provided.

Democracy And Its Critics, Cary Coglianese

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No abstract provided.

Developments In Maryland Law, 1986-87 Survey: Constitutional Law, Eric Easton, Lori A. Reinhold, Joseph B. Tétrault

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No abstract provided.