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Articles 1 - 14 of 14
Full-Text Articles in Law
Shutting Down The Government, Alan L. Feld
Shutting Down The Government, Alan L. Feld
Faculty Scholarship
Actions of the federal government cost money. Legislative processes that specify the amounts and purposes of governmental expenditures control the scope and content of government actions.1 To paraphrase Chief Justice Marshall, the power to withhold spending involves the power to destroy.2
Those involved in the legislative process ordinarily do not engage in wholesale or sudden dismantling of government activities through unheralded failures to provide funds. While disputes over funding constitute a regular part of the nation's political activity, these controversies usually concern adjustments in the level of spending and of agency operations. A decision to terminate an agency …
The Continued Importance Of The Maryland Declaration Of Rights, William L. Reynolds
The Continued Importance Of The Maryland Declaration Of Rights, William L. Reynolds
Faculty Scholarship
An analysis of the origins and development of Maryland's 'Declaration of Rights.'
Choosing Judges The Democratic Way, Larry Yackle
Choosing Judges The Democratic Way, Larry Yackle
Faculty Scholarship
A generation ago, the pressing question in constitutional law was the countermajoritarian difficulty.' Americans insisted their government was a democratic republic and took that to mean rule by a majority of elected representatives in various offices and bodies, federal and local. Yet courts whose members had not won election presumed to override the actions of executive and legislative officers who had. The conventional answer to this apparent paradox was the Constitution, which arguably owed its existence to the people directly. Judicial review was justified, accordingly, when court decisions were rooted firmly in the particular text, structure, or historical backdrop of …
Free Speech And Private Law In German Constitutional Theory, Peter E. Quint
Free Speech And Private Law In German Constitutional Theory, Peter E. Quint
Faculty Scholarship
No abstract provided.
Is Law Politics?, Philip Chase Bobbitt
Is Law Politics?, Philip Chase Bobbitt
Faculty Scholarship
Red, White, and Blue addresses the pervasive presence of five general theories of American constitutional law. These theories reflect particular jurisprudential ideologies governing, among other things, the legitimacy of certain arguments, the appropriateness of certain occasions for judicial intervention and the constitutional basis for judicial review. What makes this book interesting and important is that it provides an unwitting or at least unself-conscious example of the general theorizing it wishes to explain. For this reason, its descriptions of the particular family of theories that characterize American constitutional jurisprudence are distorted, while it disclaims any account of the particular set of …
The Future And The First Amendment, Lee C. Bollinger
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 …
Covert Operations, Lori Fisler Damrosch
Covert Operations, Lori Fisler Damrosch
Faculty Scholarship
As the Constitution begins its third century, the system of congressional oversight of covert action is only in its second decade. In the ancient history of covert action – before the intelligence oversight reforms of the l 970s – Congress did not involve itself in covert operations. After giving the Central Intelligence Agency standing authority to "perform such other functions and duties related to intelligence affecting the national security as the National Security Council may from time to time direct," Congress paid little attention to what the Executive did under this authority. The era of congressional noninvolvement came to an …
Methods Of Constitutional Argument, Philip C. Bobbitt
Methods Of Constitutional Argument, Philip C. Bobbitt
Faculty Scholarship
The methods of constitutional argument1 that may be denominated, historical, textual, doctrinal, structural, prudential and ethical, have not grown according to a plan. They have grown up in the United States because of our history and traditions – the sort of people we have become and are still becoming. To that extent, they are arbitrary and contingent. They are not the same for every culture. I would be surprised if they were very different for Canada because Canadians and Americans share so much of the same legal tradition. One can, however, easily imagine cultures around the world where legal arguments …
The Constitution's Accommodation Of Social Change, Philip A. Hamburger
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?
State Sovereignty And The Tenth And Eleventh Amendments, Calvin R. Massey
State Sovereignty And The Tenth And Eleventh Amendments, Calvin R. Massey
Faculty Scholarship
No abstract provided.
Dual Sovereignty, Federalism And National Criminal Law: Modernist Constitutional Doctrine And The Nonrole Of The Supreme Court, William W. Van Alstyne
Dual Sovereignty, Federalism And National Criminal Law: Modernist Constitutional Doctrine And The Nonrole Of The Supreme Court, William W. Van Alstyne
Faculty Scholarship
This paper examines the growing movement away from the functional nature of federalism contained within the Constitution toward a federalist system that gives extensive discretion to Congress and is only limited by political checks. This political system of federalism has limited the role of the Court in national criminal law because of the deference the Court is expected to give Congress.
Aids, Astrology, And Arline: Towards A Causal Interpretation Of Section 504, Gary S. Lawson
Aids, Astrology, And Arline: Towards A Causal Interpretation Of Section 504, Gary S. Lawson
Faculty Scholarship
Section 504 of the Rehabilitation Act of 1973 provides that ‘[n]o otherwise qualified individual with handicaps shall, solely by reason of his handicap, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under [any federal or federally funded program].’1 In School Board v. Arline,2 the Supreme Court held that a school teacher with a history of infectious tuberculosis was an ‘individual with handicaps' protected by section 504,3 and that the determination of whether she was ‘otherwise qualified’ to teach elementary school required a sound medical assessment of the risks …
Beyond Parity: Section 1983 And The State Courts, Susan Herman
Beyond Parity: Section 1983 And The State Courts, Susan Herman
Faculty Scholarship
No abstract provided.
Review Of Red, White, And Blue: A Critical Analysis Of Constitutional Law By Mark Tushnet, David B. Lyons
Review Of Red, White, And Blue: A Critical Analysis Of Constitutional Law By Mark Tushnet, David B. Lyons
Faculty Scholarship
Mark Tushnet's new book offers no such counsel. Mainly a critique of interpretative theories, its conclusions are profoundly skeptical. Tushnet's central claim is that judicial review and constitutional theory cannot possibly perform their assigned functions, and that liberalism is to blame. This review will focus on those facets of the book.