Law Commons^™

The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley

Scholarly Publications

No abstract provided.

The Right Of The People To Keep And Bear Arms Shall Not Be Litigated Away: Constitutional Implications Of Municipal Lawsuits Against The Gun Industry, William L. Mccoskey

Indiana Law Journal

No abstract provided.

Architexture, Akhil Reed Amar

Indiana Law Journal

Addison C. Harris Lecture, March 20, 2002

Exchanging Constitutions: Constitutional Bricolage In Canada, David Schneiderman

Osgoode Hall Law Journal

Judicial recourse to constitutional law sources from abroad has been likened to the process of bricolage--coined by anthropologist Claude Lévi- Strauss, this refers to the "borrowing from materials readily at hand." Building on the idea of constitutional borrowing, this paper aims to take account of the role dominant political culture plays in constitutional interpretation, in particular, the values associated with economic globalization. If resort to comparative constitutional sources is on the rise, dominant political culture will likely have the effect of limiting the stock of tools available to judges. The author argues that, in an age of economic globalization, the …

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai

American University Law Review

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …

A Roundtable Discussion With Stephen L. Carter & Michael J. Gerhardt, Thomas E. Baker

Faculty Publications

Transcript of a discussion regarding the United States Supreme Court, the Supreme Court justices and justice nominees, the Senate process for confirming nominees and related issues such as fitness to serve on the court and judicial activism.

A Qualified Defense Of Military Commissions And United States Policy On Detainees At Guantanamo Bay Naval Base, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This article, published in a special post 9-11 issue of the Harvard Journal of Law & Public Policy, offers a defense of the view that terrorists such as Osama Bin Laden should be tried, if captured, outside of regular US civilian courts and in some form of military commission. The article argues that terrorists should be seen as criminals as well as enemies of the United States. Criminals who are simply deviants from the domestic social order are properly dealt with within the constitutionally constituted civilian court structure. Enemies who are not also criminals - legal combatants - are properly …

What To Do With Bin Laden And Al Qaeda Terrorists?: A Qualified Defense Of Military Commissions And United States Policy On Detainees At Guantanamo Bay Naval Base, Kenneth Anderson

Articles in Law Reviews & Other Academic Journals

This article, published in a special post 9-11 issue of the Harvard Journal of Law & Public Policy, offers a defense of the view that terrorists such as Osama Bin Laden should be tried, if captured, outside of regular US civilian courts and in some form of military commission.

The article argues that terrorists should be seen as criminals as well as enemies of the United States. Criminals who are simply deviants from the domestic social order are properly dealt with within the constitutionally constituted civilian court structure. Enemies who are not also criminals - legal combatants - are properly …

Unratified Treaties And Other Unperfected Acts In International Law: Constitutional Functions, W. Michael Reisman

Vanderbilt Journal of Transnational Law

In international law's sociology of knowledge, unperfected legal acts are routinely examined and assigned some legal valence. Scholars quite properly use such material to assess incipient changes, and treatise and monograph writers are expected to determine whether some unperfected legal material is, or is in the process of becoming, customary international law. This is a perfectly proper use of unperfected legal material, because one of the functions of the scholar is to anticipate trends and to appraise incipient developments in terms of the impacts they may have on the most important goals of the international system. The most acute problem …

Foreign Relations And Federal Questions: Resolving The Judicial Split On Federal Court Jurisdiction, Erin E. Terrell

Vanderbilt Journal of Transnational Law

The federal circuit courts have disagreed concerning a fundamental issue of federal court jurisdiction: whether cases that may implicate or involve the "foreign relations" of the United States, but do not otherwise raise a more traditional "federal question" under federal law, may be removed from state courts to federal courts. This Note examines the cases that have created the split, and proposes two potential resolutions to it, one judicial and the other legislative.

Drug Exceptionalism, Erik Luna

Villanova Law Review

No abstract provided.

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai

Faculty Scholarship

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …

Constitutional Classifications And The "Gay Gene", Susan J. Becker

Law Faculty Articles and Essays

In this essay the author discusses the use of genetic information to classify individuals for purposes of the law, and more specifically, the impact of the so-called “gay gene” on legal classifications.

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part Ii, H. Patrick Furman

Publications

This two-part article reviews the constitutional and statutory right to a speedy trial and discusses the case law interpreting that right. The first part was printed in July 2002.

See Part I at http://scholar.law.colorado.edu/articles/550/.

Prior Restraint In Wartime, Paul E. Salamanca

Law Faculty Popular Media

In this article for Bench & Bar Magazine (the Kentucky Bar Association's magazine), Professor Paul E. Salamanca discusses the First Amendment during times of war or conflict.

Foreword: The Legal History Of The Great Sit-In Case Of Bell V. Maryland, William L. Reynolds

Faculty Scholarship

Reviews the environment and history of the 1960 Baltimore sit-in case that eventually made its way to the United States Supreme Court.

Child Witness Policy: Law Interfacing With Social Science, Louise E. Graham, Dorothy F. Marsil, Jean Montoya, David Ross

Law Faculty Scholarly Articles

The number of children testifying in court has posed serious practical and legal problems for the judicial system. One problem confronting the courts is how to protect children from experiencing the psychological trauma resulting from a face-to-face confrontation with a defendant who may have physically harmed the child or threatened future harm to the child. Another concern is that this trauma may impair children's memory performance and their willingness to disclose the truth. In response to these concerns, child witness innovations proliferated throughout the United States in the 1980s and 1990s. Among the innovations were: placing a screen between child …

The Distinctive Place Of Religious Entities In Our Constitutional Order, Ira C. Lupu, Robert Tuttle

Villanova Law Review

No abstract provided.

Comment On Professor Carrington's Article "The Independence And Democratic Accountability Of The Supreme Court Of Ohio", Roy A. Schotland

Georgetown Law Faculty Publications and Other Works

In my view, whether or not Article III is written as members of a new constitutional convention might write it, there is nothing more fundamental to the way our entire judicial system operates (including in many ways, although indirectly, our state courts) than federal judges being as independent as law can make them. Perhaps I suffer from Burkean skepticism about reform of long-standing institutions, or perhaps I am merely a supporter of the status quo. But I believe that, despite obvious drawbacks in giving anyone life tenure in any job, we gain far more than we lose by making federal …

A Goldilocks Account Of Judicial Review?, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

According to Professor Christopher Eisgruber, judicial review of the sort embedded in United States constitutional practice is a practical mechanism for implementing the Constitution's commitment to self-government. "The justices ... make a distinctive contribution to representative democracy" because they are "better positioned [than elected officials] to represent the people's convictions about what is right." Judges can articulate "a conception of justice with which Americans in general [can] plausibly identify themselves. "

I will focus here on two themes in Professor Eisgruber's argument. The first theme can be found in many works of constitutional theory - the construction of a strong …

Constitutional Design: Proposals Versus Processes, Donald L. Horowitz

Faculty Scholarship

No abstract provided.

Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar

Journal Articles

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their sub-additive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased …

The Ins And Outs, Stops And Starts Of Speedy Trial Rights In Colorado--Part I, H. Patrick Furman

Publications

This two-part article discusses the constitutional right to a speedy trial and the basics of the speedy trial statute.

See Part II at http://scholar.law.colorado.edu/articles/551/.

What Bush V. Gore Means For Elections In The 21st Century, Helen Norton

Publications

No abstract provided.

How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw, Jr.

Vanderbilt Law School Faculty Publications

Professors George and Pushaw review Maxwell L. Stearns’ book, “Constitutional Process: A Social Choice Analysis of Supreme Court Decision-making.” In his book, Stearns demonstrates that the U.S. Supreme Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing “social choice” economic theory, Professor Stearns argues that the Court strives to formulate rules that promote rationality and fairness. Perhaps the greatest strength of Stearns’ book is that he presents a grand unified theory of the Court’s rules of constitutional process and the resulting development of doctrine. This strength can also be a weakness, …

Zelman V. Simmons-Harris And The Politicization Of Religion, Lawrence Hamermesh

Lawrence A. Hamermesh

No abstract provided.

A Study In Judicial Sleight Of Hand: Did Geier V. American Honda Motor Co. Eradicate The Presumption Against Preemption?, Susan Raeker-Jordan

Susan Raeker-Jordan

No abstract provided.

Deshaney’S Legacy In Foster Care And Public School Settings, Mary Kate Kearney

Mary Kate Kearney

No abstract provided.