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Full-Text Articles in Law
Enacted Legislative Findings And The Deference Problem, Daniel A. Crane
Enacted Legislative Findings And The Deference Problem, Daniel A. Crane
Articles
The constitutionality of federal legislation sometimes turns on the presence and sufficiency of congressional findings of predicate facts, such as the effects of conduct on interstate commerce, state discrimination justifying the abrogation of sovereign immunity, or market failures justifying intrusions on free speech. Sometimes a congressional committee makes these findings in legislative history. Other times, Congress recites its findings in a statutory preamble, thus enacting its findings as law. Surprisingly, the Supreme Court has not distinguished between enacted and unenacted findings in deciding how much deference to accord congressional findings. This is striking because the difference between enactedness and unenactedness …
Cornerstones Of The Judicial Process, Jerold H. Israel
Cornerstones Of The Judicial Process, Jerold H. Israel
Articles
Under our federated system of government, each state and the federal government have their own criminal justice processes. The federal system must comply with the constitutional prerequisites set forth in the Bill of Rights, and the state systems must comply with those Bill of Rights' provisions made applicable to the states by the Fourteenth Amendment,1 but those constitutional prerequisites allow considerable room for variation from one jurisdiction to another. In many respects, the fifty states and the federal government have used that leeway to produce considerable diversity in their respective criminal justice processes. At the same time, however, one can …
Standards Of Persuasion And The Distinction Between Fact And Law, Richard D. Friedman
Standards Of Persuasion And The Distinction Between Fact And Law, Richard D. Friedman
Articles
The invitation to respond in these pages to Gary Lawson's very interesting article, Proving the Law, was tempting enough. But what made it irresistible was Professor Lawson's comment that he is "addressing, with a brevity that borders on the irresponsible, subjects well beyond [his] depth." Now, that's the kind of debate I really like. Let me jump right in. A principal question raised by Lawson, which I find quite interesting, may be phrased in general, and purposefully ambiguous, terms as follows: Before an actor treats a proposition as a valid2 proposition of law, what standard of persuasion should that proposition …