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Articles 451 - 480 of 491
Full-Text Articles in Law
Banning The Bomb: Law And Its Limits, Lori Fisler Damrosch
Banning The Bomb: Law And Its Limits, Lori Fisler Damrosch
Faculty Scholarship
We can all agree with the contributors to this volume that nuclear weapons present the threat of unimaginable devastation that could bring an end to civilization and even to life on this planet. The grim calculations and stark images come back again and again, but they cannot be repeated too often: over 50,000 weapons in the United States and Soviet arsenals, each with a destructive force dwarfing the explosions at Hiroshima and Nagasaki; radiation effects producing indescribable suffering and death; environmental damage that defies quantification or prediction; the specter of nuclear winter rendering the earth uninhabitable. No rational being can …
From Sovereignty To Process: The Jurisprudence Of Federalism After Garcia, Andrzej Rapaczynski
From Sovereignty To Process: The Jurisprudence Of Federalism After Garcia, Andrzej Rapaczynski
Faculty Scholarship
On February 19, 1985, the Supreme Court, in Garcia v. San Antonio Metropolitan Transit Authority, overruled its 1976 decision in National League of Cities v. Usery. Although the continued vitality of National League of Cities had been in question in recent years, the Court's abrupt repudiation of the very principle announced in that case is an event of considerable significance, beyond showing, one more time, that the rule of stare decisis has a limited application in the Court's modern constitutional adjudication. Garcia's importance lies, above all, in revealing the absence of anything approaching a well elaborated theory of federalism that …
Distrust Of Democracy, Richard Briffault
Distrust Of Democracy, Richard Briffault
Faculty Scholarship
The current rediscovery of state constitutions has had a singular and curious feature: it has been focused largely on state constitutional provisions that are analogous, if not identical, to provisions of the United States Constitution. Scholars and jurists have devoted their attention to state protections of speech, state equal protection clauses, state privileges against self-incrimination, and state proscriptions of cruel and unusual punishments, and have developed interpretations of these texts that diverge from those adopted by the United States Supreme Court in construing comparable federal constitutional provisions. These attempts to play state variations on federal constitutional themes have not been …
Constitutional Fact Review, Henry Paul Monaghan
Constitutional Fact Review, Henry Paul Monaghan
Faculty Scholarship
Bose Corp. v. Consumers Union of United States held that the clearly erroneous standard of Federal Rule of Civil Procedure 52(a) does not prescribe the scope of appellate review of a finding of actual malice in defamation cases governed by New York Times Co. v. Sullivan. Rather, as a matter of "federal constitutional law," appellate courts "must exercise independent judgment and determine whether the record establishes actual malice with convincing clarity." Thus, in addition to the familiar judicial duty to "say what the law is," the first amendment imposes a special duty with respect to law application: both …
The Development Of The Law Of Seditious Libel And The Control Of The Press, Philip A. Hamburger
The Development Of The Law Of Seditious Libel And The Control Of The Press, Philip A. Hamburger
Faculty Scholarship
This article presents a new account of the development of the law of seditious libel from the late sixteenth century to the early eighteenth. It also outlines a new version of the relationship between the government and the press during that period. The article argues that it was the gradual erosion, during the late sixteenth and seventeenth centuries, of the legal foundations of the government's policies toward the press that eventually made necessary a new policy based on the law of libel. In the midsixteenth century, the Crown possessed a wide variety of means for dealing with the printed press, …
Property Rules, Liability Rules, And Adverse Possession, Thomas W. Merrill
Property Rules, Liability Rules, And Adverse Possession, Thomas W. Merrill
Faculty Scholarship
The law of adverse possession tends to be regarded as a quiet backwater. Both judicial opinions and leading treatises treat the legal doctrine as settled. The theory underlying the doctrine, although routinely discussed in the opening weeks of first-year property courses, is only rarely aired in the law reviews any more. Indeed, the most frequently cited articles on adverse possession date from the 1930s and earlier. Perhaps most tellingly, adverse possession seems to have completely escaped the attention of the modem law and economics movement – almost a sure sign of obscurity in today's legal-academic world.
Nevertheless, two recent events …
The Pathological Perspective And The First Amendment, Vincent A. Blasi
The Pathological Perspective And The First Amendment, Vincent A. Blasi
Faculty Scholarship
Constitutions are designed to control, or at least influence, future events – political events, adjudicative events, to some extent even interactions between private parties. Yet the future is unknowable, largely unpredictable, and inevitably variable. At any moment there exists a short-run future, a long-run future, and a future in between. The future is virtually certain to contain some progress, some regression, some stability, some volatility. How is a constitution supposed to operate upon this vast panoply?
That is a question that ought to loom large in the deliberations of persons who propose and ratify new constitutions and new constitutional amendments. …
Third Party Standing, Henry Paul Monaghan
Third Party Standing, Henry Paul Monaghan
Faculty Scholarship
Traditional constitutional theory posits a narrow conception of the issues that a litigant properly may assert. A litigant may invoke only his own constitutional rights or immunities; he may challenge a statute only in the terms in which it is applied to him; and, in the application process, courts have broad power to construe the relevant statutory language so as to avoid constitutional difficulties. The Yazoo case is perhaps the best known example of judicial adherence to these canons. There, a railroad claimed that a statute mandating speedy settlement of "all claims for lost or damaged freight" contravened the fourteenth …
Religion As A Concept In Constitutional Law, Kent Greenawalt
Religion As A Concept In Constitutional Law, Kent Greenawalt
Faculty Scholarship
Because federal and state constitutions forbid government from infringing upon religious liberty or supporting religion, courts must sometimes decide whether a claim, activity, organization, purpose, or classification is religious. In most cases arising under these religion clauses, the religiousness of an activity or organization will be obvious. However; when the presence of religion is seriously controverted, the threshold question, "defining religion," becomes important. Most courts have prudently eschewed theoretical generalizations in approaching that question. Academic commentators have struggled to startlingly diverse proposals.
This Article suggests that in both free exercise and establishment cases, courts should decide whether something is religious …
Criminal Coercion And Freedom Of Speech, Kent Greenawalt
Criminal Coercion And Freedom Of Speech, Kent Greenawalt
Faculty Scholarship
This essay about constitutional limits on criminal coercion concerns a piece of a larger puzzle; how freedom of expression impinges on crimes that involve communication. The essay has two interrelated purposes. One is to reach some rather specific conclusions about the kinds of coercive threats that enjoy constitutional protection and to suggest how legislative formulations of criminal coercion can minimize coverage of such threats. The second purpose, more general and theoretical, is to show how the boundaries of freedom of expression can be understood and how courts can employ those boundaries to arrive at specific tests of constitutional protection. The …
Constitutional Law As Moral Philosophy, Gerard E. Lynch
Constitutional Law As Moral Philosophy, Gerard E. Lynch
Faculty Scholarship
The seemingly inexhaustible debate over the proper role of the Supreme Court in constitutional adjudication concerns an issue of enormous practical importance: whether the Court has or should have the power to overturn the decision of a democratically elected legislature to, say, prohibit abortions, affects not only the allocation of significant political power, but also the moral lives and indeed the very bodies of millions of citizens. For this reason, many contributions to that debate, from academics as well as from practicing politicians, have burned with the passion of political commitment, seeking to influence events directly by persuading judges (or …
Free Speech And Intellectual Values, Lee C. Bollinger
Free Speech And Intellectual Values, Lee C. Bollinger
Faculty Scholarship
In the preface to his book, The Negro and the First Amendment, Harry Kalven observed that the idea of free speech was marked by an unusually keen "quest for coherent general theory." Every area of the law, Kalven puzzled, was rife with inconsistency and ambiguity, yet inexplicably there was little tolerance· for anomalies in the field of free speech. As to why this was so, Kalven speculated that "free speech is so close to the heart of democratic organization that if we do not have an appropriate theory for our law here, we feel we really do not understand the …
Rescuing The Private Attorney General: Why The Model Of The Lawyer As Bounty Hunter Is Not Working, John C. Coffee Jr.
Rescuing The Private Attorney General: Why The Model Of The Lawyer As Bounty Hunter Is Not Working, John C. Coffee Jr.
Faculty Scholarship
Forty years ago, Judge Jerome Frank coined the term "private Attorney General" to recognize the role of private litigation in the enforcement of law. In the intervening years, the "private attorney general" concept has become both a cliche and a crutch, receiving polite lip service from nearly all, but critical analysis from relatively few. As most college sophomores know, the private attorney general is someone who sues "to vindicate the public interest" by representing collectively those who individually could not afford the costs of litigation; and, as every law student knows, our society places extensive reliance upon such private attorneys …
Marbury And The Administrative State, Henry Paul Monaghan
Marbury And The Administrative State, Henry Paul Monaghan
Faculty Scholarship
Marbury v. Madison's prominence as a constitutional decision has long deflected interest in examining its other implications. But prior to proclaiming judicial competence to invalidate an act of Congress, the Court sustained judicial authority to enforce the specific statutory duties of administrative officials. Had the doctrine of separation of powers been understood from the beginning to bar any judicial control of administrative power, the constitutional scheme would have gone seriously awry at the outset. Congressional directives either would have been subordinated to the will of the executive department or would have generated collateral and unseemly struggles between the two …
Overbreadth, Henry Paul Monaghan
Overbreadth, Henry Paul Monaghan
Faculty Scholarship
The concern in constitutional law with "overbreadth" is generally understood to denote a conscious departure from conventional standing concepts in free-expression cases. Assertedly justified by the special vulnerability of protected expression to impermissible deterrence, overbreadth doctrine invites litigants to attack the facial validity of rules which burden expressive interests. A litigant whose expression is admittedly within the constitutionally valid applications of a statute is permitted to assert the statute's potentially invalid applications with respect to other persons not before the court and with whom the litigant stands in no special relationship. Judicial focus is not on the protected character, vel …
The Case For Treason, George P. Fletcher
The Case For Treason, George P. Fletcher
Faculty Scholarship
"If this be treason, make the most of it." Patrick Henry had no fear of the ultimate crime against his King. Nor did the burghers of Maryland who set ablaze the Peggy Stewart in Annapolis Harbor. One would think that for us as Americans the crime of treason would carry special significance. Our nation was born in acts of treason. The threat of prosecution made the crime foremost in the mind of the constitutional draftsmen. Indeed, treason is the only crime to find definition in our basic document.
There are other indications that the crime of treason is central to …
Toward A Theory Of Prior Restraint: The Central Linkage, Vincent A. Blasi
Toward A Theory Of Prior Restraint: The Central Linkage, Vincent A. Blasi
Faculty Scholarship
The doctrine of prior restraint embodies a temporal preference. Acts of expression that could be sanctioned by means of criminal punishment or a civil damage award may not be regulated "in advance." The factor of timing, however, cannot serve to distinguish methods of regulation as neatly as this statement would seem to imply. In addition to a retrospective impact relating to punishment or compensation, criminal prohibitions and civil liability rules are meant to have a prospective impact – to deter speakers from engaging in harmful acts of expression in the future. If impact on speech before the moment of its …
Our Perfect Constitution, Henry Paul Monaghan
Our Perfect Constitution, Henry Paul Monaghan
Faculty Scholarship
Professor Monaghan takes issue with "due substance" theorists, who view the Constitution as protecting rights and values generated by current conceptions of political morality. In this Article, he examines and criticizes the theories advanced to justify looking to those current conceptions as an acceptable mode of reasoning about constitutional meaning. Professor Monaghan's own view is that the proper mode of ascertaining constitutional meaning is one that looks to original intent and precedent, a view that acknowledges the Constitution does not guarantee perfect government.
Silence As A Moral And Constitutional Right, Kent Greenawalt
Silence As A Moral And Constitutional Right, Kent Greenawalt
Faculty Scholarship
Like the Fourth Amendment ban on unreasonable searches and seizures, the privilege against self-incrimination stands as a barrier to the government's acquisition of information about criminal activities. The moral analogue in private relations to the Fourth Amendment right is quite straightforward. One person should not rummage about the private spaces of another seeking signs of bad behavior unless he has very powerful reasons. The Fourth Amendment similarly limits the government, generally permitting searches only upon probable cause. The private moral analogue to the Fifth Amendment's right of silence is harder to identify, its analysis is more complex and the judgments …
A Reply To Professor Ball, Philip Chase Bobbitt
A Reply To Professor Ball, Philip Chase Bobbitt
Faculty Scholarship
Although it has been observed that approaching an allegedly universalistic theory by asserting the time- and culture-bound nature of that theory is an attack of some sort, Professor Ball does not take my lectures to be a rebuke to the enterprise in which he, Professor Tushnet, and others are engaged. Instead, he complains that I do not examine the relation between constitutional argument, on the one hand, and, on the other, social, political, and economic interests. This is a mistaken reading of my work. It is nice to be told that Tushnet and Ball accept my formulation "that in our …
"Twisting Slowly In The Wind": A Search For Constitutional Limits On Coercion Of The Criminal Defendant, John C. Coffee Jr.
"Twisting Slowly In The Wind": A Search For Constitutional Limits On Coercion Of The Criminal Defendant, John C. Coffee Jr.
Faculty Scholarship
In the corridor outside Courtroom Four, Foster Clark approached the prosecutor. "I was wondering," he said, "are we really going to have to try this case?"
"Well," the prosecutor said, "that depends. He's dead on and gone to heaven, if that's what you mean. He doesn't have a prayer."
"I was wondering if we could work something out," Clark said. "I haven't really had a chance to talk with him, but I was wondering."
"So talk to him," the prosecutor said. "Find out where he stands, and call me."
* * *
"Look," the prosecutor said, "you know I can't …
"No Soul To Damn: No Body To Kick": An Unscandalized Inquiry Into The Problem Of Corporate Punishment, John C. Coffee Jr.
"No Soul To Damn: No Body To Kick": An Unscandalized Inquiry Into The Problem Of Corporate Punishment, John C. Coffee Jr.
Faculty Scholarship
Did you ever expect a corporation to have a conscience, when it has no soul to be damned, and no body to be kicked?
—Edward, First Baron Thurlow 1731-1806
The Lord Chancellor of England quoted above was neither the first nor the last judge to experience frustration when faced with a convicted corporation. American sentencing judges are likely to face a similar dilemma with increasing frequency in the near future, for a number of signs indicate that corporate prosecutions will become increasingly commonplace. At first glance, the problem of corporate punishment seems perversely insoluble: moderate fines do not deter, …
Constitutional Fate, Philip Chase Bobbitt
Constitutional Fate, Philip Chase Bobbitt
Faculty Scholarship
The Mary Ireland Graves Dougherty Lectures in Constitutional Law were established in 1979 at the University of Texas School of Law in the memory of Mrs. Dougherty by her family. Professor Bobbitt delivered the inaugural series of these lectures on three evenings in April 1979. Of those in attendance, only Professor Bobbitt's students, who had witnessed the evolution of his ideas during that year, and a few colleagues with whom he must have shared his thoughts, could have expected what followed on those spring evenings in Austin. His subject was "the question of judicial review." So stated, the subject hardly …
Professor Jones And The Constitution, Henry Paul Monaghan
Professor Jones And The Constitution, Henry Paul Monaghan
Faculty Scholarship
Professor Harry Jones's elegant and stimulating Waterman lectures begin on a salutary note. Professor Jones rightly reminds us that, first and foremost, a constitution is not exclusively or primarily a limitation on the exercise of political power, but rather is a charter for its exercise. Accordingly, to view the Constitution as "all brakes and no engine" suggests a serious and fundamental myopia, albeit an understandable one given the popular preoccupation with the Supreme Court's role in vindicating guarantees of civil liberty. But that preoccupation, Professor Jones notes, does more than distort the meaning of the Constitution; it ignores an historically …
The Constitution Goes To Harvard, Henry Paul Monaghan
The Constitution Goes To Harvard, Henry Paul Monaghan
Faculty Scholarship
Doctrinal disorder haunts a generation of Supreme Court decisions construing and applying the strands of the fourteenth amendment. But in a confusion contest between the Court and academic writers on constitutional law, picking a winner would be no simple task. Those of us in the academy, despite our comparatively ample time for reflection, have long resisted discussion of fundamental issues.
Professors Tribe and Michelman, two of our ablest writers, illustrate my point in their provocative recent essays on National League of Cities v. Usery. Neither purports to erect more adequate scaffolding for the decision's federalism foundation. Rather, each attempts …
The Enduring Significance Of Neutral Principles, Kent Greenawalt
The Enduring Significance Of Neutral Principles, Kent Greenawalt
Faculty Scholarship
Almost twenty years have passed since Herbert Wechsler delivered his Oliver Wendell Holmes lecture, Toward Neutral Principles of Constitutional Law. Although no one piece fully conveys the richness and rigor of Professor Wechsler's conception of constitutional law and the role of the judiciary, Neutral Principles sets out starkly, eloquently, and courageously some of his fundamental beliefs about constitutional decisionmaking. Shifts in jurisprudential fashion, as well as marked changes in constitutional doctrine and the composition of the Supreme Court, would make this an apt time to review what is almost certainly the most cited and most controversial discussion of constitutional …
Government By Judiciary: The Transformation Of The Fourteenth Amendment, Gerard E. Lynch
Government By Judiciary: The Transformation Of The Fourteenth Amendment, Gerard E. Lynch
Faculty Scholarship
As its title suggests, Raoul Berger's Government by Judiciary states an extreme version of a familiar thesis: The Supreme Court has abandoned its proper role as interpreter of the Constitution and has usurped the power to act as a third legislative chamber. Like kadis under a tree, the Court creates law from mere personal predilections. The main instrument of this judicial coup has been the fourteenth amendment. Government by Judiciary is an historian's book, strongest when using the historian's tools to illuminate the past. Underlying this research, however, is a remarkably simplistic theory of constitutional interpretation, a theory that forms …
Constitutional Limits On Aid To Sectarian Universities, Kent Greenawalt
Constitutional Limits On Aid To Sectarian Universities, Kent Greenawalt
Faculty Scholarship
Because private colleges and universities have more and more difficulty keeping their heads above water financially, the possibility of government support increasingly is becoming a question of survival. Almost certainly the level of public support for private academic institutions will rise in the future, and any doubts about eligibility for this support are of vital concern for affected universities. The major issue regarding eligibility has been the status of sectarian universities. Given the stringent constitutional limits on government aid to religion, can universities that are connected to churches or are otherwise sectarian receive public assistance?
Processes Of Constitutional Decisionmaking: Cases And Materials, Henry Paul Monaghan
Processes Of Constitutional Decisionmaking: Cases And Materials, Henry Paul Monaghan
Faculty Scholarship
Authors of constitutional law casebooks traditionally have presented their subject through Supreme Court opinions arranged under the three general groupings of judicial review, distribution of powers (federalism and separation of powers), and individual liberties. This organizational consensus rests upon two widely held and deep beliefs: a basic course in constitutional law should (1) consist of a rigorous and sustained study of substantive doctrine and (2) be undertaken principally through a detailed examination of Supreme Court decisions, albeit supplemented in varying degrees by authors' questions and law review excerpts.
Paul Brest's Processes of Constitutional Decisionmaking poses a formidable challenge to this …
Section 1983 And Federalism, Richard Briffault
Section 1983 And Federalism, Richard Briffault
Faculty Scholarship
The relationship between the themes of federalism and individual rights is one that runs deep in American intellectual and social history. And it is one that has changed drastically with changes in the conditions and temperament of our society.
In the early days of the Republic, federalism was viewed as. a means of protecting individual rights from the tyranny of a unified central government. The Civil War brought with it a rejection of this guiding principle. State autonomy came to be seen not as a means to protect the individual from government abuse but rather as the primary source of …