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Full-Text Articles in Law
Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce A. Green, Rebecca Roiphe
Aba Model Rule 8.4(G), Discriminatory Speech, And The First Amendment, Bruce A. Green, Rebecca Roiphe
Faculty Scholarship
No abstract provided.
Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib
Are The Federal Rules Of Evidence Unconstitutional?, Ethan J. Leib
Faculty Scholarship
The Federal Rules of Evidence (FRE) rest on an unacceptably shaky constitutional foundation. Unlike other regimes of federal rulemaking—for Civil Procedure, for Criminal Procedure, and for Appellate Procedure—the FRE rulemaking process contemplated by the Rules Enabling Act is both formally and functionally defective because Congress enacted the FRE as a statute first but purports to permit the Supreme Court to revise, repeal, and amend those laws over time, operating as a kind of supercharged administrative agency with the authority to countermand congressional statutes. Formally, this system violates the constitutionally-delineated separation of powers as announced in Chadha, Clinton, and the non-delegation …
Do Local Governments Really Have Too Much Power? Understanding The National League Of Cities' Principles Of Home Rule For The 21st Century, Nestor M. Davidson, Richard Schragger
Do Local Governments Really Have Too Much Power? Understanding The National League Of Cities' Principles Of Home Rule For The 21st Century, Nestor M. Davidson, Richard Schragger
Faculty Scholarship
This Article explains and defends the National League of Cities’ Principles of Home Rule for the 21st Century, which the authors participated in drafting. The Principles project both articulates a vision of state-local relations appropriate to an urban age and, as with previous efforts stretching back to the Progressive Era, includes a model constitutional home rule article designed to serve as the foundation for state-level constitutional law reform. This Article explains the origins of the Principles, outlines the major components of its model constitutional provision, and defends the model against a set of criticisms common to this and past home-rule …
The Dilemma Of Liberal Pluralism, Abner S. Greene
The Dilemma Of Liberal Pluralism, Abner S. Greene
Faculty Scholarship
Supporters of reproductive rights and of queer rights may sometimes live in harmony with advocates for religious exemptions. But sometimes these goals conflict. This Article explores this tension as a matter of liberal democratic theory and U.S. constitutional law, offering a case for seeing a robust pluralism as contained within a proper understanding of the liberal democratic state. The state’s claimed authority may be the starting point, but just as the modern state was born in decentralized religious toleration, so should the modern state accommodate religious and other views of the good that compete with the state’s own views. The …
Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed H. Shugerman
Removal Of Context: Blackstone, Limited Monarchy, And The Limits Of Unitary Originalism, Jed H. Shugerman
Faculty Scholarship
The Supreme Court's recent decisions that the President has an unconditional or indefeasible removal power rely on textual and historical assumptions and a “removal of context.” This article focuses on the “executive power” part of the Vesting Clause and particularly the unitary theorists' misuse of Blackstone. Unitary executive theorists overlook the problems of relying on England’s limited monarchy: the era’s rise of Parliamentary supremacy over the Crown and its power to eliminate or regulate (i.e., make defeasible) royal prerogatives. Unitary theorists provide no evidence that executive removal was ever identified as a “royal prerogative" or a default royal power. The …
A Flawed Case Against Black Self-Defense, Nicholas J. Johnson
A Flawed Case Against Black Self-Defense, Nicholas J. Johnson
Faculty Scholarship
No abstract provided.
Federalism, Private Rights, And Article Iii Adjudication, John M. Golden, Thomas H. Lee
Federalism, Private Rights, And Article Iii Adjudication, John M. Golden, Thomas H. Lee
Faculty Scholarship
This Article sheds new light on the private rights/public rights distinction used by the Supreme Court to assess the extent to which the United States Constitution permits adjudication by a non-Article III federal tribunal. State courts have traditionally been the primary deciders of lawsuits over private rights—historically defined as suits regarding “the liability of one individual to another under the law as defined.” If Congress could limitlessly assign adjudication of private rights cases to federal officials lacking the life tenure and salary protections of Article III judges, the political branches of the federal government would enjoy vastly expanded authority to …