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Articles 1 - 9 of 9

Full-Text Articles in Law

Two Social Movements, Thomas W. Merrill Jan 1994

Two Social Movements, Thomas W. Merrill

Faculty Scholarship

Two social movements in the last fifty years have had a profound impact on our understanding of law and the role of the courts in our system of government. One is the civil rights movement. The demand for greater racial and gender equality and other civil rights has changed the face of the law in countless ways. For example, it has called into question – or at least required a fundamental revision in – the traditional understanding that the courts should interpret the Constitution and laws in accordance with their original meaning. Decisions such as Brown v. Board of Education and the ...


Brecht V. Abrahamson: Harmful Error In Habeas Corpus Law, James S. Liebman, Randy Hertz Jan 1994

Brecht V. Abrahamson: Harmful Error In Habeas Corpus Law, James S. Liebman, Randy Hertz

Faculty Scholarship

For the past two and one-half decades, the Supreme Court and the lower federal courts have applied the same rule for assessing the harmlessness of constitutional error in habeas corpus proceedings as they have applied on direct appeal of both state and federal convictions. Under that rule, which applied to all constitutional errors except those deemed per se prejudicial or per se reversible, the state could avoid reversal upon a finding of error only by proving that the error was harmless beyond a reasonable doubt. The Supreme Court adopted this stringent standard in Chapman v. California to fulfill the federal ...


Of Laws And Men: An Essay On Justice Marshall's View Of Criminal Procedure, Daniel C. Richman, Bruce A. Green Jan 1994

Of Laws And Men: An Essay On Justice Marshall's View Of Criminal Procedure, Daniel C. Richman, Bruce A. Green

Faculty Scholarship

As a general rule, criminal defendants whose cases made it to the Supreme Court between 1967 and 1991 must have thought that, as long as Justice Thurgood Marshall occupied one of the nine seats, they had one vote for sure. And Justice Marshall rarely disappointed them – certainly not in cases of any broad constitutional significance. From his votes and opinions, particularly his dissents, many were quick to conclude that the Justice was another of those "bleeding heart liberals," hostile to the mission of law enforcement officers and ready to overlook the gravity of the crimes of which the defendants before ...


Trivial Rights, Philip A. Hamburger Jan 1994

Trivial Rights, Philip A. Hamburger

Faculty Scholarship

In the summer of 1789, when the House of Representatives was formulating the amendments that became the Bill of Rights, Theodore Sedgwick of Massachusetts argued against enumerating the right of assembly. The House, he urged, "might have gone into a very lengthy enumeration of rights; they might have declared that a man should have a right to wear his hat if he pleased, that he might get up when he pleased, and go to bed when he thought proper ... [Was] it necessary to list these trifles in a declaration of rights, under a Government where none of them were intended ...


Free Speech And The Widening Gyre Of Fund-Raising: Why Campaign Spending Limits May Not Violate The First Amendment After All Symposium On Campaign Finance Reform, Vincent A. Blasi Jan 1994

Free Speech And The Widening Gyre Of Fund-Raising: Why Campaign Spending Limits May Not Violate The First Amendment After All Symposium On Campaign Finance Reform, Vincent A. Blasi

Faculty Scholarship

Candidates for office spend too much of their time raising money. This is scarcely a controversial proposition. A major impetus for campaign finance reform is the frustration politicians now feel concerning how much time they must devote to courting potential donors, often by methods borrowed from the marketplace that can only be described as demeaning. The situation has gotten worse as electoral merchandising has grown ever more sophisticated and expensive.


"What About The 'Ism'?" Normative And Formal Concerns In Contemporary Federalism, Richard Briffault Jan 1994

"What About The 'Ism'?" Normative And Formal Concerns In Contemporary Federalism, Richard Briffault

Faculty Scholarship

Contemporary legal discourse concerning federalism has shifted from the formal to the normative, that is, from a focus on the fifty states as unique entities in the American constitutional firmament to a concern with the values of federalism. This normative turn has had some salutary effects. It has sharpened the debate over federalism, reminded us of the impact of the federal design on the substance of American governance, and underscored the interrelationship of government structure and individual rights. But the normative approach has also, paradoxically, moved the focus of federalism away from the states. Many of the arguments offered on ...


Reflections Inspired By My Critics, Philip Chase Bobbitt Jan 1994

Reflections Inspired By My Critics, Philip Chase Bobbitt

Faculty Scholarship

The crucial idea in constitutional law is legitimacy; the crucial idea in jurisprudence is justification.

For some time, the academic debate about U.S. constitutionalism has looked for justifications for our practices, believing this would confer legitimacy on them. In my work, I have endeavored to derive legitimacy from the practices themselves, reserving the task of justification for other purposes.

By showing the way in which legitimacy is established and maintained in a constitutional system like ours, I hoped to derive solutions to a number of classical questions, all of which, I believe, are at bottom questions about legitimacy and ...


Textualism And The Future Of The Chevron Doctrine, Thomas W. Merrill Jan 1994

Textualism And The Future Of The Chevron Doctrine, Thomas W. Merrill

Faculty Scholarship

The last decade has been a remarkable one for statutory interpretation. For most of our history, American judges have been pragmatists when it comes to interpreting statutes. They have drawn on various conventions – the plain meaning rule, legislative history, considerations of statutory purpose, canons of construction – "much as a golfer selects the proper club when he gauges the distance to the pin and the contours of the course." The arrival of Justice Scalia on the Supreme Court has changed this. Justice Scalia is a foundationalist, insisting that certain interpretational tools should be permanently banned from judicial use. What is more ...


Unburdening The Undue Burden Standard: Orienting Casey In Constitutional Jurisprudence, Gillian E. Metzger Jan 1994

Unburdening The Undue Burden Standard: Orienting Casey In Constitutional Jurisprudence, Gillian E. Metzger

Faculty Scholarship

"Liberty finds no refuge in a jurisprudence of doubt." With these words in the 1992 case, Planned Parenthood v. Casey, the Supreme Court ushered in a new era of abortion regulation. Speaking through a joint opinion authored by Justices O'Connor, Kennedy, and Souter, the Court indicated that from this point forth abortion regulations would be judged by an "undue burden" standard. According to this standard, an abortion regulation is unconstitutional if it "has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion" of a nonviable fetus.

The Justices who wrote ...