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Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne
Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen
The Market Participant Doctrine And The Clear Statement Rule, David S. Bogen
Faculty Scholarship
This paper argues that the market participant exception to the dormant commerce clause reflects the same concerns that led to the clear statement doctrine for application of general legislation to the operations of state governments. The genius of the Constitution was to make federal law directly applicable to individuals instead of through state governments – this made enforcement easier and avoided confrontation between the state and nation. Confrontation in which the federal authorities order the state to act in a particular way should be a result of consideration of the need to do so. But the dormant commerce clause by …
Sacred Visions Of Law, Robert L. Tsai
Sacred Visions Of Law, Robert L. Tsai
Faculty Scholarship
Around the time of the Bicentennial Celebration of the U.S. Constitution's framing, Professor Sanford Levinson called upon Americans to renew our constitutional faith. This article answers the call by examining how two legal symbols - Marbury v. Madison and Brown v. Board of Education - have been used by jurists over the years to tend the American community of faith. Blending constitutional theory and the study of religious form, the article argues that the decisions have become increasingly linked in the legal imagination even as they have come to signify very different sacred visions of law. One might think that …
Holmes On The Lochner Court, Gerald F. Leonard
Holmes On The Lochner Court, Gerald F. Leonard
Faculty Scholarship
For this symposium on Lochner, I examined the jurisprudence of the man commonly thought to be the Lochner majority's fiercest foe, Justice Oliver Wendell Holmes, Jr. Holmes wrote the famous dissent in Lochner and other cases of the era. But as Barry Cushman notes in his contribution to this symposium, Holmes joined many a Lochner-era majority in striking down any number of economic regulations. Holmes's Fourteenth Amendment opinions suggest: 1) that, while Holmes advocated a somewhat more pointed rule of deference to legislatures than did most of his colleagues, his language in this respect was far less radical than is …