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Full-Text Articles in Law
The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk
The Federalist Dimension Of Regulatory Takings Jurisprudence, Stewart E. Sterk
Faculty Articles
Conventional wisdom teaches that the Supreme Court's takings doctrine is a muddle. Appearances, however, are deceiving. The "property" protected by the Takings Clause is defined not by a single sovereign, but by the legislative enactments and judicial pronouncements of fifty separate states. As a result, federalism concerns - underappreciated in the takings literature - do and should play an important role in shaping the Court's takings doctrine. In particular, these concerns make it inappropriate for the Court to use the Takings Clause as a vehicle for articulating a comprehensive theory of the limits on government power to regulate land. This …
Grutter V. Bollinger: This Generation's Brown V. Board Of Education, Michelle Adams
Grutter V. Bollinger: This Generation's Brown V. Board Of Education, Michelle Adams
Faculty Articles
At first blush, Grutter appears to be a deviation from the body of the Court's recent affirmative action jurisprudence: it says "yes" where the other cases said "no." But it is not so clear that Grutter is a deviation from current law. Instead, it might be seen as consistent with it, in that the justification for the racial preference recognized in Grutter transcended the justifications offered in the previous cases, and the method used to achieve that end, "race as a factor," diffused rather than highlighted race. From this perspective, Grutter addressed several concerns that had troubled the Court for …
The Inevitable Failure Of Nuisance-Based Theories Of The Takings Clause: A Reply To Professor Claeys, Stewart E. Sterk
The Inevitable Failure Of Nuisance-Based Theories Of The Takings Clause: A Reply To Professor Claeys, Stewart E. Sterk
Faculty Articles
Rejecting the proposition (advanced by Professor Eric Claeys) that the Rehnquist Court's conservatives have missed an opportunity to transform takings law, this commentary demonstrates that a nuisance-based theory cannot provide a comprehensive basis for takings clause jurisprudence. The commentary further establishes that no plausible vision of originalism supports a nuisance based theory, and concludes by arguing that judicial scrutiny of state and local land use practices is less deferential than it was at the inception of the Rehnquist Court.
Preemptive War: Is It Constitutional, John B. Mitchell
Preemptive War: Is It Constitutional, John B. Mitchell
Faculty Articles
When America attacked Iraq in 2002, it was the first preemptive war in the history of our nation. While there is daily debate over the wisdom and consequences of that action, the question whether the federal government even possessed the power under the Constitution to wage preemptive war does not seem to have been raised. Although the legal literature abounds with discussion about whether the President may authorize significant military operations without the explicit authorization of Congress, the author could not find a single work written in legal cases or commentary about preemptive war. This article considers this heretofore unanswered …
Case Comments: Constitutional Law: Reaffirming Every Floridian’S Broad And Fundamental Right To Privacy, Diane Lourdes Dick
Case Comments: Constitutional Law: Reaffirming Every Floridian’S Broad And Fundamental Right To Privacy, Diane Lourdes Dick
Faculty Articles
In this article Professor Diane Lourdes Dick examines the Parental Notice of Abortion Act (the Act) that was passed in 1999 by the Florida Legislature, which required minors seeking an abortion to either notify a parent prior to the procedure or obtain court approval to waive parental notice. A minor choosing the latter option must demonstrate to a court that she is either mature enough to make the decision or that, despite a court's finding that she lacks sufficient maturity, parental notification is clearly not in her best interest. The statute has never been enforced and the right to privacy …