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Full-Text Articles in Law

A Constitutional Amendment To Reform Kentucky’S Courts, Kurt Metzmeier Dec 2006

A Constitutional Amendment To Reform Kentucky’S Courts, Kurt Metzmeier

Faculty Scholarship

Responding to a confused patchwork of trial courts with overlapping jurisdiction, uneven justice around the state, and a growing backlog of appellate cases, voters in Kentucky went to the polls on November 4, 1975, to approve a sweeping constitutional amendment that radically revised Kentucky’s court system. Although reformers had decried Kentucky’s confusing court system since the 1940s, the real roots of the revision of the judicial article can be found in the failed movement in the late 1960s to replace Kentucky’s 1891 constitution. Unbowed by the defeat, judicial reformers immediately set out to pass a separate amendment reforming the courts, …


The New Constitutional Order And The Heartening Of Conservative Constitutional Aspirations, James E. Fleming Nov 2006

The New Constitutional Order And The Heartening Of Conservative Constitutional Aspirations, James E. Fleming

Faculty Scholarship

The basic question for this conference is whether we as a people have entered, or are on the verge of entering, a new constitutional order. In 2003, Mark Tushnet published a terrific book, The New Constitutional Order, an expansion of his insightful Foreword: The New Constitutional Order and the Chastening of Constitutional Ambition in the Harvard Law Review.2 The title of that book was an inspiration for the title of this conference. And the title of that article is the basis for the title of my article. For years, liberals and progressives have been anticipating or announcing a conservative revolution …


The Constitutional Rights Of Non-Custodial Parents, David D. Meyer Jul 2006

The Constitutional Rights Of Non-Custodial Parents, David D. Meyer

Faculty Scholarship

No abstract provided.


Sidestepping Lassiter On The Path To Civil Gideon: Civil Douglas, Steven D. Schwinn Jul 2006

Sidestepping Lassiter On The Path To Civil Gideon: Civil Douglas, Steven D. Schwinn

Faculty Scholarship

Civil Gideon advocates have at each turn faced the scourge of Lassiter v. Department of Social Services, which established (apparently out of whole cloth) a presumption that indigent litigants are entitled to appointed counsel only when physical liberty is at stake. This article proposes side-stepping that presumption by seeking a right to counsel on appeal via Douglas v. California, not a right to counsel at trial via Gideon v. Wainwright. Once established, a civil right to counsel on appeal would presage the inevitable downfall of Lassiter and the establishment of Civil Gideon. This article poses the argument …


The Constitutional Rights Of Non-Custodial Parents, David D. Meyer Jul 2006

The Constitutional Rights Of Non-Custodial Parents, David D. Meyer

Faculty Scholarship

No abstract provided.


Originalism As A Legal Enterprise, Gary S. Lawson, Guy I. Seidman Apr 2006

Originalism As A Legal Enterprise, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

The reasonable person is an important and ubiquitous figure in the law. Despite the seeming handicap of being a hypothetical construct assembled by lawyers rather than a flesh-andblood person, he (for most of Western legal history) or she (in more recent times) determines such varied legal and factual matters as the standard of care for negligence liability,' the materiality of misrepresentations in both contract 2 and tort,3 the applicability of hearsay exceptions for admissions against interest,4 the scope of liability for workplace harassment under Title VII, 5 the clarity of law necessary to defeat the qualified immunity of government officials,6 …


The Paper Wars: First Amendment Challenges To School Material Distribution Policies, Leora Harpaz Mar 2006

The Paper Wars: First Amendment Challenges To School Material Distribution Policies, Leora Harpaz

Faculty Scholarship

Public schools are faced with an array of requests seeking permission to distribute material on school property. These requests may come from students, teachers or outside organizations. To respond to these requests, some school districts have adopted written policies to guide their determinations while others lack formal policies and respond on an ad hoc basis. Whether based on formal or informal policies, in deciding whether to permit distribution school officials typically take into account a variety of factors including the content of the material, the identity of the individual or group seeking permission and the time, place or manner of …


'There Is Only One Equal Protection Clause': An Appreciation Of Justice Stevens's Equal Protection Jurisprudence, James E. Fleming Mar 2006

'There Is Only One Equal Protection Clause': An Appreciation Of Justice Stevens's Equal Protection Jurisprudence, James E. Fleming

Faculty Scholarship

"There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases."1 These words open Justice John Paul Stevens's famous concurring opinion in Craig v. Boren.2 That was the first case in which the U.S. Supreme Court applied "intermediate" scrutiny to gender-based classifications and thus carved out a third tier of equal protection analysis between strict scrutiny and deferential rational basis scrutiny. Craig was decided in 1976, at the beginning of Justice Stevens's long and distinguished …


The Constitutionality Of Best Interests Parentage, David D. Meyer Feb 2006

The Constitutionality Of Best Interests Parentage, David D. Meyer

Faculty Scholarship

No abstract provided.


The Constitutionality Of Best Interests Parentage, David D. Meyer Feb 2006

The Constitutionality Of Best Interests Parentage, David D. Meyer

Faculty Scholarship

No abstract provided.


Limits On Agency Discretion To Choose Between Rulemaking And Adjudication: Reconsidering Patel V. Ins And Ford Motor Co. V. Ftc, William D. Araiza Jan 2006

Limits On Agency Discretion To Choose Between Rulemaking And Adjudication: Reconsidering Patel V. Ins And Ford Motor Co. V. Ftc, William D. Araiza

Faculty Scholarship

No abstract provided.


First Amendment Cases In The October 2004 Term, Joel Gora Jan 2006

First Amendment Cases In The October 2004 Term, Joel Gora

Faculty Scholarship

No abstract provided.


Manson V. Brathwaite Revisited: Towards A New Rule Of Decision For Due Process Challenges To Eyewitness Identification Procedures, Timothy P. O'Toole, Giovanna Shay Jan 2006

Manson V. Brathwaite Revisited: Towards A New Rule Of Decision For Due Process Challenges To Eyewitness Identification Procedures, Timothy P. O'Toole, Giovanna Shay

Faculty Scholarship

Almost 30 years ago, in Manson v. Brathwaite--the Supreme Court set out a test for determining when due process requires suppression of an out-of-court identification produced by suggestive police procedures. The Manson Court rejected a per se exclusion rule in favor of a test focusing on whether an identification infected by suggestive procedures is nonetheless reliable when judged in the totality of the circumstances. The purpose of this Article is two-fold: to demonstrate that the Manson rule of decision fails to safeguard due process values, in part because it does not account for the intervening social science research, and to …


Gender And Constitutional Design, Paula A. Monopoli Jan 2006

Gender And Constitutional Design, Paula A. Monopoli

Faculty Scholarship

Does the allocation of power between the legislative and executive branches, and the way we define the scope of the executive affect whether women ascend to executive office? In this article, Professor Monopoli argues that the constitutional process of boundary-drawing between the legislative and executive branches of government has implications for how successful women will be in ascending to executive positions. She posits that the Hamiltonian vision of an expansive executive with plenary power is the model least likely to result in women’s ascending to executive office. The essay traces the philosophical heritage of Hamilton’s vision and outlines the empirical …


From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber Jan 2006

From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber

Faculty Scholarship

No abstract provided.


A Prayer For Constitutional Comparativism In Eighth Amendment Cases, David C. Gray Jan 2006

A Prayer For Constitutional Comparativism In Eighth Amendment Cases, David C. Gray

Faculty Scholarship

No abstract provided.


Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber Jan 2006

Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber

Faculty Scholarship

This paper interprets the constitution of 1791 in light of the constitution of 1787. The persons responsible for the original constitution thought they had secured fundamental rights by a combination of representation, the separation of powers, and the extended republic. The Bill of Rights, in their view, was a minor supplement to the strategies previously employed for preventing abusive government practices. Proposed amendments were less a list of fundamental freedoms than an enumeration of those rights likely to appease moderate anti-Federalists. That many vaguely phrased rights lacked clear legal meaning was of little concern to their Federalist sponsors, who trusted …


Leading A Constitutional Court: Perspectives From The Federal Republic Of Germany, Peter E. Quint Jan 2006

Leading A Constitutional Court: Perspectives From The Federal Republic Of Germany, Peter E. Quint

Faculty Scholarship

This article, which was a contribution to a Symposium on the office of the Chief Justice of the United States, compares that office with the office of President of the Federal Constitutional Court of Germany. The article concludes that, while the American Chief Justice possesses more authority in most formal respects, the President of the German Court has on occasion exercised an informal public or private influence that goes well beyond anything of the sort that has been attempted (recently at least) by the American Chief Justice.


Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber Jan 2006

Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber

Faculty Scholarship

This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the …


"The Most Extraordinarily Powerful Court Of Law The World Has Ever Known"? - Judicial Review In The United States And Germany, Peter E. Quint Jan 2006

"The Most Extraordinarily Powerful Court Of Law The World Has Ever Known"? - Judicial Review In The United States And Germany, Peter E. Quint

Faculty Scholarship

No abstract provided.


Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber Jan 2006

Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber

Faculty Scholarship

No abstract provided.


Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler Jan 2006

Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler

Faculty Scholarship

No abstract provided.


Military Commissions And Terrorist Enemy Combatants, Curtis A. Bradley Jan 2006

Military Commissions And Terrorist Enemy Combatants, Curtis A. Bradley

Faculty Scholarship

No abstract provided.


Kelo’S Moral Failure, Laura S. Underkuffler Jan 2006

Kelo’S Moral Failure, Laura S. Underkuffler

Faculty Scholarship

No abstract provided.


Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher Jan 2006

Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher

Faculty Scholarship

No abstract provided.


Universal Rights And Wrongs, Michael E. Tigar Jan 2006

Universal Rights And Wrongs, Michael E. Tigar

Faculty Scholarship

No abstract provided.


Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder Jan 2006

Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder

Faculty Scholarship

No abstract provided.


The Executive And The Avoidance Canon, H. Jefferson Powell Jan 2006

The Executive And The Avoidance Canon, H. Jefferson Powell

Faculty Scholarship

No abstract provided.


Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler Jan 2006

Popular Constitutionalism And The Rule Of Recognition: Whose Practices Ground U.S. Law?, Matthew D. Adler

Faculty Scholarship

No abstract provided.


The Assault On The Constitution: Executive Power And The War On Terrorism, Erwin Chemerinsky Jan 2006

The Assault On The Constitution: Executive Power And The War On Terrorism, Erwin Chemerinsky

Faculty Scholarship

The Bush administration has made unprecedented claims of unchecked executive power. The Constitution reflects a simple model that two branches of government should have to be involved in virtually all major government actions. The Bush administration, however, has claimed the ability to detain individuals, to engage in electronic eavesdropping, and to authorize torture even in violation of federal statutes. The solution must be for courts to reject these broad claims of presidential authority.