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Full-Text Articles in Law

Maryland And The Constitution Of The United States: An Introductory Essay, William L. Reynolds Oct 2007

Maryland And The Constitution Of The United States: An Introductory Essay, William L. Reynolds

Faculty Scholarship

The State of Maryland and the attorneys who practice in it have played a profound role in the history of the Constitution of the United States. That relationship should not surprise anyone: after all, Maryland was one of the original thirteen states, and its proximity to the nation’s capitol ensured that its lawyers would play an active role in the bar of the Supreme Court. Although the case names alone would make that history apparent – McCulloch v. Maryland, Brown v. Maryland, Federal Baseball – I am not aware of a serious scholarly effort to bring that history to the …


Youngstown, Hamdan, And "Inherent" Emergency Presidential Policymaking Powers, Gordon G. Young Jul 2007

Youngstown, Hamdan, And "Inherent" Emergency Presidential Policymaking Powers, Gordon G. Young

Faculty Scholarship

This brief article explores the contribution that Hamdan v Rumsfeld may have made to clarifying what should happen in the large interstices of the rules created by the Youngstown case for determining the validity of claims of Presidential power. It offers its own view of the scope of Presidential powers in extreme emergencies involving the incapacitation of the legislative branch.


Levinson And Constitutional Reform: Some Notes, Stephen M. Griffin Jan 2007

Levinson And Constitutional Reform: Some Notes, Stephen M. Griffin

Maryland Law Review

No abstract provided.


Geographic Representation And The U.S. Congress, Frances E. Lee Jan 2007

Geographic Representation And The U.S. Congress, Frances E. Lee

Maryland Law Review

No abstract provided.


Hamdan As An Assertion Of Judicial Power, Jana B. Singer Jan 2007

Hamdan As An Assertion Of Judicial Power, Jana B. Singer

Faculty Scholarship

In Hamdan v Rumsfeld, the Supreme Court rebuffed the Bush administration’s initial attempt to use Military Commissions created by Executive Order to try detainees held at Guantanamo Bay. The Court ruled that the President, acting alone, lacked the authority to employ the Commissions because their structure and procedure violated both the Uniform Code of Military Justice and the Geneva Conventions. Most academic commentators have viewed the Hamdan decision as primarily about the limits of executive power. On this view, the central constitutional problem in Hamdan was that the Executive had acted unilaterally in an area where the Constitution required the …


Gender And Justice: Parity And The United States Supreme Court, Paula A. Monopoli Jan 2007

Gender And Justice: Parity And The United States Supreme Court, Paula A. Monopoli

Faculty Scholarship

There is a deep concern among many American women that only one woman remains on the United States Supreme Court. When Justice Sandra Day O’Connor was sworn in on September 25, 1981, most people never imagined that twenty-five years later there would still be only one woman on the Court. It appears that it will be many more years before there is a critical mass of women sitting on the high court. Given its central role, the Court should better represent the gender balance in American society. In a number of other countries, voluntary or involuntary parity provisions have been …


Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber Jan 2007

Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber

Faculty Scholarship

The Maryland Constitutional Law Schmooze, "An Eighteenth-Century Constitution in a Twenty-First-Century World" explores the interpretive and political challenges inherent in recourse to an ancient text for resolving political questions. Although no Essay cites Quentin Skinner, the debates between participants in the Schmooze and this Symposium mirror the debates between Skinner and his critics. Some participants insist that crucial aspects of an eighteenth-century text remain vibrant at present, that contemporary political life would be improved by more careful study of the Constitution. Others blame crucial pathologies of American politics on a combination of too careful study of and too uncritical veneration …


Tied Up In Knotts? Gps Technology And The Fourth Amendment, Renée Mcdonald Hutchins Jan 2007

Tied Up In Knotts? Gps Technology And The Fourth Amendment, Renée Mcdonald Hutchins

Faculty Scholarship

Judicial and scholarly assessment of emerging technology seems poised to drive the Fourth Amendment down one of three paths. The first would simply relegate the amendment to a footnote in history books by limiting its reach to harms that the framers specifically envisioned. A modified version of this first approach would dispense with expansive constitutional notions of privacy and replace them with legislative fixes. A third path offers the amendment continued vitality but requires the U.S. Supreme Court to overhaul its Fourth Amendment analysis. Fortunately, a fourth alternative is available to cabin emerging technologies within the existing doctrinal framework. Analysis …


What Is A Twentieth-Century Constitution?, Peter E. Quint Jan 2007

What Is A Twentieth-Century Constitution?, Peter E. Quint

Faculty Scholarship

At present, almost all of the constitutions in the world are twentieth-century constitutions; indeed, most of them were not adopted until the second half of the twentieth century. Accordingly, the eighteenth-century Constitution of the United States -- which includes the original constitution of 1787-89; the first ten amendments, adopted in 1791; and the Eleventh Amendment, adopted in 1798 -- antedates most other constitutions of the world by at least 150 years. Using the eighteenth-century Constitution of the United States as a form of base-line (a method that may be parochial, but one that I think also has a lot to …


"No Better Than They Deserve:" Dred Scott And Constitutional Democracy, Mark A. Graber Jan 2007

"No Better Than They Deserve:" Dred Scott And Constitutional Democracy, Mark A. Graber

Faculty Scholarship

No abstract provided.


Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David C. Gray Jan 2007

Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David C. Gray

Faculty Scholarship

The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a …


Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber Jan 2007

Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber

Faculty Scholarship

“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally …


False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber Jan 2007

False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber

Faculty Scholarship

Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public philosophers. Throughout his career, Professor Rosen has vigorously condemned justices “when they have tried to impose intensely contested visions of the Constitution on a divided nation.” This commentary on his Foulston lecture at Washburn Law School suggests that proponents of judicial restraint must avoid traps of false modesty which ensnared Justice Felix Frankfurter. The constitutional politics responsible for Poe v. Ullman and Barnette v. West Virginia State Board of Education challenge the too simple understanding of judicial unilateralism that Frankfurter advanced in his opinions in …


Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky Jan 2007

Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky

Faculty Scholarship

Over the last decade, federal courts have internalized the idea that interpretations of the Antiterrorism and Effective Death Penalty Act (AEDPA) should disfavor habeas relief. This Article explores the strange legislative history surrounding AEDPA's passage and the resulting problems in using 'comity, finality, and federalism' to express this interpretive mood. It demonstrates that such a simplistic reading of habeas reform is deeply misguided. Through the use of public choice and related models, the Article explores the roots of this interpretive problem. It ultimately rejects any attempt to characterize AEDPA by reference to legislative purpose.


R.J. Reynolds Tobacco Co. V. Shewry: Has The Tobacco Industry Met Its Match?, Lauren Rachel Bregman Jan 2007

R.J. Reynolds Tobacco Co. V. Shewry: Has The Tobacco Industry Met Its Match?, Lauren Rachel Bregman

Journal of Health Care Law and Policy

No abstract provided.


Georgia V. Randolph: Checking Potential Defendants’ Fourth Amendment Rights At The Door, Adrienne Wineholt Jan 2007

Georgia V. Randolph: Checking Potential Defendants’ Fourth Amendment Rights At The Door, Adrienne Wineholt

Maryland Law Review

No abstract provided.


Hamdan As An Assertion Of Judicial Power , Jana Singer Jan 2007

Hamdan As An Assertion Of Judicial Power , Jana Singer

Maryland Law Review

No abstract provided.


Silences And Peculiarities Of The Hamdan Opinions, Peter E. Quint Jan 2007

Silences And Peculiarities Of The Hamdan Opinions, Peter E. Quint

Maryland Law Review

No abstract provided.


Youngstown, Hamdan, And “Inherent” Emergency Presidential Policymaking Powers, Gordon G. Young Jan 2007

Youngstown, Hamdan, And “Inherent” Emergency Presidential Policymaking Powers, Gordon G. Young

Maryland Law Review

No abstract provided.


Demystifying Social Welfare: Foundations For Constitutional Design, Joe Oppenheimer, Norman Frohlich Jan 2007

Demystifying Social Welfare: Foundations For Constitutional Design, Joe Oppenheimer, Norman Frohlich

Maryland Law Review

No abstract provided.


Slavery And The Marshall Court: Preventing “Oppressions Of The Minor Party”?, Leslie Friedman Goldstein Jan 2007

Slavery And The Marshall Court: Preventing “Oppressions Of The Minor Party”?, Leslie Friedman Goldstein

Maryland Law Review

No abstract provided.


A Place For Interposition? What John Taylor Of Caroline And The Embargo Crisis Have To Offer Regarding Resistance To The Bush Constitution, Bradley D. Hays Jan 2007

A Place For Interposition? What John Taylor Of Caroline And The Embargo Crisis Have To Offer Regarding Resistance To The Bush Constitution, Bradley D. Hays

Maryland Law Review

No abstract provided.


From “Just” To “Just Decent”? Constitutional Transformations And The Reordering Of The Twenty-First-Century Public Sphere, Cindy Skach Jan 2007

From “Just” To “Just Decent”? Constitutional Transformations And The Reordering Of The Twenty-First-Century Public Sphere, Cindy Skach

Maryland Law Review

No abstract provided.


Eminent Domain: A Legal And Economic Critique, Nadia E. Nedzel, Walter Block Jan 2007

Eminent Domain: A Legal And Economic Critique, Nadia E. Nedzel, Walter Block

University of Maryland Law Journal of Race, Religion, Gender and Class

No abstract provided.


You Ain’T Seen Nothin’ Yet: The Inevitable Post- Hamdan Conflict Between The Supreme Court And The Political Branches, Michael Greenberger Jan 2007

You Ain’T Seen Nothin’ Yet: The Inevitable Post- Hamdan Conflict Between The Supreme Court And The Political Branches, Michael Greenberger

Maryland Law Review

No abstract provided.


The Balkanization Of Originalism, James E. Fleming Jan 2007

The Balkanization Of Originalism, James E. Fleming

Maryland Law Review

No abstract provided.


What Is A Twentieth-Century Constitution?, Peter E. Quint Jan 2007

What Is A Twentieth-Century Constitution?, Peter E. Quint

Maryland Law Review

No abstract provided.


The Original Meaning Of Original Understanding: A Neo-Blackstonian Critique, Saul Cornell Jan 2007

The Original Meaning Of Original Understanding: A Neo-Blackstonian Critique, Saul Cornell

Maryland Law Review

No abstract provided.


Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan Jan 2007

Federalism And The Tug Of War Within: Seeking Checks And Balance In The Interjurisdictional Gray Area, Erin Ryan

Maryland Law Review

No abstract provided.


Originalism, The Living Constitution, And Supreme Court Decision Making In The Twenty-First Century: Explaining Lawrence V. Texas, Ronald Kahn Jan 2007

Originalism, The Living Constitution, And Supreme Court Decision Making In The Twenty-First Century: Explaining Lawrence V. Texas, Ronald Kahn

Maryland Law Review

No abstract provided.