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Full-Text Articles in Law
Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas
Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas
Faculty Scholarship
Eastern states, though they have enjoyed a history of relatively abundant water, increasingly face the need to conserve water, particularly to protect water-dependent ecosystems. At the same time, growing water demands, climate change, and an emerging water-oriented economy have intensified pressure for interstate water transfers. Thus, even traditionally wet states are seeking to protect or secure their water supplies. However, restrictions on water sales and exports risk running afoul of the Dormant Commerce Clause. This Article offers guidance for states, partciularly eastern states concerned with maintaining and improving water-dependent ecosystems, in seeking to restrict water exports while staying within the …
Standing At The Crossroads: The Roberts Court In Historical Perspective, Maxwell L. Stearns
Standing At The Crossroads: The Roberts Court In Historical Perspective, Maxwell L. Stearns
Faculty Scholarship
After eleven years, the longest period in Supreme Court history with no change in membership, the Roberts Court commenced in the year 2005 with two new justices. John Roberts replaced William Rehnquist as the seventeenth Chief Justice and Samuel Alito replaced Sandra Day O’Connor as Associate Justice. The conventional wisdom suggests that on the nine-justice Supreme Court, these two appointments have produced a single-increment move, ideologically, to the right. The two Chief Justices occupy roughly the same ideological position. In contrast, whereas O’Connor was generally viewed as occupying the Court’s centrist, or median, position, Alito has instead continued to embrace …
Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber
Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber
Faculty Scholarship
The Maryland Constitutional Law Schmooze, "An Eighteenth-Century Constitution in a Twenty-First-Century World" explores the interpretive and political challenges inherent in recourse to an ancient text for resolving political questions. Although no Essay cites Quentin Skinner, the debates between participants in the Schmooze and this Symposium mirror the debates between Skinner and his critics. Some participants insist that crucial aspects of an eighteenth-century text remain vibrant at present, that contemporary political life would be improved by more careful study of the Constitution. Others blame crucial pathologies of American politics on a combination of too careful study of and too uncritical veneration …
Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber
Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber
Faculty Scholarship
“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally …
False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber
False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber
Faculty Scholarship
Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public philosophers. Throughout his career, Professor Rosen has vigorously condemned justices “when they have tried to impose intensely contested visions of the Constitution on a divided nation.” This commentary on his Foulston lecture at Washburn Law School suggests that proponents of judicial restraint must avoid traps of false modesty which ensnared Justice Felix Frankfurter. The constitutional politics responsible for Poe v. Ullman and Barnette v. West Virginia State Board of Education challenge the too simple understanding of judicial unilateralism that Frankfurter advanced in his opinions in …
Executive Aggrandizement In Foreign Affairs Lawmaking, Michael P. Van Alstine
Executive Aggrandizement In Foreign Affairs Lawmaking, Michael P. Van Alstine
Faculty Scholarship
This article analyzes the power of the President to create federal law on the foundation of the executive’s status as the constitutional representative of the United States in foreign affairs. Executive branch advocates have claimed such a power throughout constitutional history. Recent events also have revived this constitutional controversy with particular vigor. In specific, President Bush recently issued a surprise “Determination” which asserted that the implied executive powers of Article II of the Constitution permit the President to enforce in domestic law the obligations owed to foreign states under international law.
The article first sets the legal and factual context …
Gender And Constitutional Design, Paula A. Monopoli
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 …
Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber
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 …
Introduction: Ancients, Moderns And Guns, Mark A. Graber
Introduction: Ancients, Moderns And Guns, Mark A. Graber
Faculty Scholarship
No abstract provided.
Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin R. Scordato, Paula A. Monopoli
Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin R. Scordato, Paula A. Monopoli
Faculty Scholarship
No abstract provided.
Naked Land Transfers And American Constitutional Development, Mark A. Graber
Naked Land Transfers And American Constitutional Development, Mark A. Graber
Faculty Scholarship
The constitutional prohibition on naked land transfers, laws granting to B property that belonged to A, played a far greater role in American constitutional development than is generally realized. The Marshall and Taney Courts heard numerous cases in which government officials were accused of expropriating private property, typically by legislative oversight rather than by deliberate intent. When resolving these cases, antebellum justices relied heavily on “certain great principles of justice” rather than on specific constitutional provisions. Supreme Court majorities on several occasions probably exercised the judicial power to declare federal laws unconstitutional. More frequently, Marshall and Taney Court decisions in …
Law And Sports Officiating: A Misunderstood And Justly Neglected Relationship, Mark A. Graber
Law And Sports Officiating: A Misunderstood And Justly Neglected Relationship, Mark A. Graber
Faculty Scholarship
No abstract provided.
Desperately Ducking Slavery: Dred Scott And Contemporary Constitutional Theory, Mark A. Graber
Desperately Ducking Slavery: Dred Scott And Contemporary Constitutional Theory, Mark A. Graber
Faculty Scholarship
No abstract provided.
A Critical Reassessment Of The Case Law Bearing On Congress's Power To Restrict The Jurisdiction Of The Lower Federal Courts, Gordon G. Young
A Critical Reassessment Of The Case Law Bearing On Congress's Power To Restrict The Jurisdiction Of The Lower Federal Courts, Gordon G. Young
Faculty Scholarship
No abstract provided.
The Passive-Aggressive Virtues: Cohen V. Virginia And The Problematic Establishment Of Judicial Power, Mark A. Graber
The Passive-Aggressive Virtues: Cohen V. Virginia And The Problematic Establishment Of Judicial Power, Mark A. Graber
Faculty Scholarship
No abstract provided.
Old Wine In New Bottles: The Constitutional Status Of Unconstitutional Speech, Mark A. Graber
Old Wine In New Bottles: The Constitutional Status Of Unconstitutional Speech, Mark A. Graber
Faculty Scholarship
This Article explores whether contemporary advocates of restrictions on bigoted expression have more in common with contemporary advocates of broad First Amendment rights or with past censors. The critical theorists who would ban some hate speech rely heavily on the equal citizenship principles that radical civil libertarians believe justify almost absolute speech rights. The First Amendment, past and present censors argue, does not fully protect speech inconsistent with what they believe are basic constitutional values. This claim repudiates a basic principle of American constitutionalism, the faith that "self-evident" constitutional values will triumph in the constitutional marketplace of ideas. The ideological …
Judicial Recantation, Mark A. Graber
A Constitutional Conspiracy Unmasked: Why "No State" Does Not Mean "No State", Mark A. Graber
A Constitutional Conspiracy Unmasked: Why "No State" Does Not Mean "No State", Mark A. Graber
Faculty Scholarship
No abstract provided.
The Transformation Of The Fourteenth Amendment: Reflections From The Admission Of Maryland's First Black Lawyers, David S. Bogen
The Transformation Of The Fourteenth Amendment: Reflections From The Admission Of Maryland's First Black Lawyers, David S. Bogen
Faculty Scholarship
October 10, 1985, was the one hundredth anniversary of the admission to the bar of the Supreme Bench of Baltimore City of Everett J. Waring, the first black lawyer admitted to practice before the state courts in Maryland. This article explores the efforts of African-American lawyers to establish the right to practice law in Maryland and their role in the larger struggle for political and civil rights.
Apartheid Baltimore Style: The Residential Segregation Ordinances Of 1910-1913, Garrett Power
Apartheid Baltimore Style: The Residential Segregation Ordinances Of 1910-1913, Garrett Power
Faculty Scholarship
On May 15, 1911, Baltimore Mayor J. Barry Mahool signed into law an ordinance for “preserving the peace, preventing conflict and ill feeling between the white and colored races in Baltimore City.” This ordinance provided for the use of separate blocks by African American and whites and was the first such law in the nation directly aimed at segregating black and white homeowners. This article considers the historical significance of Baltimore’s first housing segregation law.