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Constitutional Law

1990

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Articles 1 - 30 of 258

Full-Text Articles in Law

On Taking Substituted Judgment Seriously, Charles Baron Aug 2013

On Taking Substituted Judgment Seriously, Charles Baron

Charles H. Baron

No abstract provided.


[Letter To Kenneth Starr, Solicitor General, On Ayers V. Allain], J. Clay Smith Jr. Nov 1990

[Letter To Kenneth Starr, Solicitor General, On Ayers V. Allain], J. Clay Smith Jr.

Selected Speeches

No abstract provided.


Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann Nov 1990

Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann

Faculty Scholarship

This Essay is an effort to construct a normative basis for a constitutional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.1 In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker "had reason to believe" the abuse was occurring. 2 Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has custody of the victim, 3 thus settling a controversial …


Rule 11 And Civil Rights Lawyers Comments Of National Bar Association In Response To The Call For Comments Issued By The Advisory Committee On The Civil Rules Judicial Conference Of The United States, J. Clay Smith Jr. Nov 1990

Rule 11 And Civil Rights Lawyers Comments Of National Bar Association In Response To The Call For Comments Issued By The Advisory Committee On The Civil Rules Judicial Conference Of The United States, J. Clay Smith Jr.

Selected Speeches

No abstract provided.


Handguns As Products Unreasonably Dangerous Per Se, Andrew Jay Mcclurg Oct 1990

Handguns As Products Unreasonably Dangerous Per Se, Andrew Jay Mcclurg

University of Arkansas at Little Rock Law Review

No abstract provided.


Constitutional Law—Prisoners' Rights—Prison Regulation Denying Inmate The Right To Artificially Inseminate Wife Held Constitutional. Goodwin V. Turner, 908 F.2d 1395 (8th Cir. 1990)., Todd M. Turner Oct 1990

Constitutional Law—Prisoners' Rights—Prison Regulation Denying Inmate The Right To Artificially Inseminate Wife Held Constitutional. Goodwin V. Turner, 908 F.2d 1395 (8th Cir. 1990)., Todd M. Turner

University of Arkansas at Little Rock Law Review

No abstract provided.


Levels Of Generality In The Definition Of Rights, Laurence H. Tribe, Michael C. Dorf Oct 1990

Levels Of Generality In The Definition Of Rights, Laurence H. Tribe, Michael C. Dorf

Cornell Law Faculty Publications

This article focuses on one important aspect of the quest for constitutional meaning: how to determine whether a particular liberty-whether or not expressly enumerated in the Bill of Rights-is a "fundamental" right. Whether under the somewhat tarnished banner of substantive due process or under a different rubric, the designation of a right as fundamental requires that the state offer a compelling justification for limitations of that right. In addition, under the Equal Protection Clause of the Fourteenth Amendment, state-sanctioned inequalities that bear upon the exercise of a fundamental right will be upheld only if they serve a compelling governmental interest. …


Beyond Mergens: Balancing A Student's Free Speech Right Against The Establishment Clause In Public High School Equal Access Cases, D. Jarrett Arp Oct 1990

Beyond Mergens: Balancing A Student's Free Speech Right Against The Establishment Clause In Public High School Equal Access Cases, D. Jarrett Arp

William & Mary Law Review

No abstract provided.


Ties That Bind?: The Supreme Court Of Canada, American Jurisprudence, And The Revision Of Canadian Criminal Law Under The Charter, Robert Harvie, Hamar Foster Oct 1990

Ties That Bind?: The Supreme Court Of Canada, American Jurisprudence, And The Revision Of Canadian Criminal Law Under The Charter, Robert Harvie, Hamar Foster

Osgoode Hall Law Journal

Chief Justice Dickson has suggested that Canadian jurists should consult American authority in Charter cases, but with care. The authors look at how the Court has followed this advice in its own criminal decisions rendered prior to March 1989, in which American authority is cited in less than 50 percent of the cases. The authors conclude that, in some significant areas, the Court has interpreted the interests of the accused more broadly than the American Supreme Court does and has on occasion done so without citing divergent U.S. precedent. The effect of sections 1 and 24(2) of the Charter on …


Interpreting The Charter Of Rights: Generosity And Justification, Peter W. Hogg Oct 1990

Interpreting The Charter Of Rights: Generosity And Justification, Peter W. Hogg

Osgoode Hall Law Journal

The author argues that there is a close relationship between the scope of the rights guaranteed by the Charter and the standard of justification required under section 1. The broader the scope of a right, the more relaxed the standard of justification must be. A generous interpretation of a right is incompatible with the stringent Oakes standard of justification. However, a purposive interpretation of a right, confining the right to conduct that is worthy of constitutional protection, is compatible with a stringent standard of justification.


Remarks Made At The Second Circuit Judicial Conference, September 8, 1989, Thurgood Marshall Sep 1990

Remarks Made At The Second Circuit Judicial Conference, September 8, 1989, Thurgood Marshall

Trotter Review

For many years, no institution of American government has been as close a friend to civil rights as the United States Supreme Court. Make no mistake: I do not mean for a moment to denigrate the quite considerable contributions to the enhancement of civil rights by presidents, the Congress, other federal courts, and the legislatures and judiciaries of many states. It is now 1989, however, and we must recognize that the Court's approach to civil rights cases has changed markedly. The most recent Supreme Court opinions vividly illustrate this changed judicial attitude. In Richmond v. Croson, the Court took …


Eliminating Distinctions Between Commercial And Political Speech: Replacing Regulation With Government Counterspeech Sep 1990

Eliminating Distinctions Between Commercial And Political Speech: Replacing Regulation With Government Counterspeech

Washington and Lee Law Review

No abstract provided.


Facing God Or The Government-United States V. Aguilar: A Big Step For Big Brother Sep 1990

Facing God Or The Government-United States V. Aguilar: A Big Step For Big Brother

BYU Law Review

No abstract provided.


The Eleventh Amendment's Clear Statement Test After Dellmuth V. Muth And Pennsylvania V. Union Gas Co., Robert T. Smith Sep 1990

The Eleventh Amendment's Clear Statement Test After Dellmuth V. Muth And Pennsylvania V. Union Gas Co., Robert T. Smith

BYU Law Review

No abstract provided.


The War On Drugs And Denominational Preferences: Farewell To Strict Scrutiny Analysis, Jeffrey T. Lawrence Sep 1990

The War On Drugs And Denominational Preferences: Farewell To Strict Scrutiny Analysis, Jeffrey T. Lawrence

BYU Law Review

No abstract provided.


On Taking Substituted Judgment Seriously, Charles Baron Aug 1990

On Taking Substituted Judgment Seriously, Charles Baron

Charles H. Baron

No abstract provided.


Contempt Of Congress: A Reply To The Critics Of An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall Aug 1990

Contempt Of Congress: A Reply To The Critics Of An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall

Michigan Law Review

In the law school tradition of "suspending belief," Professor Eskridge has created a hypothetical in which I, in my first case as Chief Justice of the United States, must decide whether to adhere to various antiquated and seemingly erroneous precedents interpreting the Mann Act. Eskridge assumes that I will feel compelled to adhere to these decisions, for to do otherwise, he contends, would force me to abandon the proposal for an absolute rule of statutory stare decisis that I advanced recently in this Law Review. Eskridge then offers a variety of critiques of my thesis, coming from perspectives as diverse …


The Case Of The Amorous Defendant: Criticizing Absolute Stare Decisis For Statutory Cases, William N. Eskridge Jr. Aug 1990

The Case Of The Amorous Defendant: Criticizing Absolute Stare Decisis For Statutory Cases, William N. Eskridge Jr.

Michigan Law Review

Earlier in this the first year of the new millennium, Professor Larry Marshall was appointed Chief Justice of the United States. The first important case coming before the Marshall Court involved the government's prosecution of Frankly Amorous under the White Slave Traffic Act of June 25, 1910 (the Mann Act), as amended. Defendant Amorous was a law student in Virginia who paid for the airplane ticket of his female lover to travel from North Carolina to Virginia for the admitted purpose of having extramarital sexual relations. The U.S. Attorney prosecuted Amorous for violating the Mann Act, which criminalizes the knowing …


The Negative Constitution: A Critique, Susan Bandes Aug 1990

The Negative Constitution: A Critique, Susan Bandes

Michigan Law Review

Part I describes the current approach, which demands adherence to the notion of a negative constitution. Part II critiques the assumptions underlying the current approach and demonstrates its undesirable consequences in decisional law. Part III explores the tenacious barriers to recognition of affirmative governmental duties: the constitutional, philosophical, and common law roots of the notion of a negative constitution, as well as the belief that recognizing affirmative duties would be an invitation to chaos. Finally, Part IV proposes discarding the rhetoric of negative rights and suggests an approach for constructing a theory better designed to effectuate constitutional goals.


Making Sense Of Billboard Law: Justifying Prohibitions And Exemptions, R. Douglass Bond Aug 1990

Making Sense Of Billboard Law: Justifying Prohibitions And Exemptions, R. Douglass Bond

Michigan Law Review

Part I of this Note surveys the trends in the aesthetic regulation of billboards, culminating in the Supreme Court of California's decision in Metromedia, Inc. v. City of San Diego, and the Supreme Court's review of that decision. Part II analyzes the five Metromedia opinions in order to present properly the contemporary debate over billboard law. It inquires whether a sign prohibition should hinge on the commercial or noncommercial status of the targeted signs. Part III indicates how ambiguities in the Metromedia plurality opinion have produced the conflict in lower courts between the commercial/noncommercial distinction and the onsite/ off …


Academic Freedom: A Bibliography, Janet Sinder Jul 1990

Academic Freedom: A Bibliography, Janet Sinder

Faculty Scholarship

No abstract provided.


Academic Freedom, Hate Speech, And The Idea Of A University, Rodney A. Smolla Jul 1990

Academic Freedom, Hate Speech, And The Idea Of A University, Rodney A. Smolla

Scholarly Articles

Not available.


Habeas Corpus Committee - Correspondence, Lewis F. Powell Jr. Jul 1990

Habeas Corpus Committee - Correspondence, Lewis F. Powell Jr.

Habeas Corpus Committee

No abstract provided.


Academic Freedom, Hate Speech, And The Idea Of A University, Rodney A. Smolla Jul 1990

Academic Freedom, Hate Speech, And The Idea Of A University, Rodney A. Smolla

Faculty Publications

No abstract provided.


In Search Of A Fourth Amendment For The Twenty-First Century, Lewis R. Katz Jul 1990

In Search Of A Fourth Amendment For The Twenty-First Century, Lewis R. Katz

Indiana Law Journal

No abstract provided.


Resolving Retroactivity After: Teague V. Lane, Ellen E. Boshkoff Jul 1990

Resolving Retroactivity After: Teague V. Lane, Ellen E. Boshkoff

Indiana Law Journal

No abstract provided.


Substantive Due Process Analysis And The Lockean Liberal Tradition: Rethinking The Modern Privacy Cases, Jeffrey S. Koehlinger Jul 1990

Substantive Due Process Analysis And The Lockean Liberal Tradition: Rethinking The Modern Privacy Cases, Jeffrey S. Koehlinger

Indiana Law Journal

No abstract provided.


Cross Cultural Reflections: Teaching The Charter To Americans, Jamie Cameron Jul 1990

Cross Cultural Reflections: Teaching The Charter To Americans, Jamie Cameron

Osgoode Hall Law Journal

In this article, the author discusses a course in Comparative Constitutional Jurisprudence that she taught at Cornell Law School in the winter semester of 1989. She is particularly interested in the way this class of American students responded to the Supreme Court of Canada's interpretation of the Charter. She presents her reflections on differences between Canadian and American constitutional culture through a discussion of the decisions in The Motor Vehicle Reference, R. v. Morgentaler, and The French Language Case.


Preliminary Reflections On Mckesson And American Trucking Associations, Walter Hellerstein Jul 1990

Preliminary Reflections On Mckesson And American Trucking Associations, Walter Hellerstein

Scholarly Works

On June 4, 1990, the Supreme Court issued its long awaited decisions in McKesson Corp v. Division of Alcoholic Beverages and Tobacco and American Trucking Associations, Inc. v. Smith. Both cases raised the question of whether a taxpayer has a right to a refund of unconstitutional state taxes. This article analyzes these decisions separately and considers the implications of these decisions on future state tax litigation. The article has two purposes: first, to analyze the McKesson and American Trucking Association cases; and second, to consider their implications for future constitutional challenges to state taxes. The article concludes by stating …


The Contractual Liability Of The Crown And Its Agents, Sue Arrowsmith Jul 1990

The Contractual Liability Of The Crown And Its Agents, Sue Arrowsmith

Osgoode Hall Law Journal

This article considers the question of the capacity in which Crown agents enter into contracts - whether on behalf of the Crown or in an independent capacity - and examines the significance of this for questions such as the application of Crown immunities. It is argued that the courts' attempt to deal with these questions through the recognition of a dual capacity in Crown agents and the application of the private law of agency is highly unsatisfactory, and it is suggested that this area well illustrates the pressing need to reconsider the dual legal status of the administration.