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Articles 61 - 88 of 88
Full-Text Articles in Law
A Post-Vieth Strategy For Litigating Partisan Gerrymandering Claims, James A. Gardner
A Post-Vieth Strategy For Litigating Partisan Gerrymandering Claims, James A. Gardner
Journal Articles
No abstract provided.
State Constitutional Rights As Resistance To National Power: Toward A Functional Theory Of State Constitutions, James A. Gardner
State Constitutional Rights As Resistance To National Power: Toward A Functional Theory Of State Constitutions, James A. Gardner
Journal Articles
In the American legal order, constitutional rights are conventionally understood to apply to and restrain the level of government created by the constitution in which those rights appear. Thus, individual rights in a lower-order constitution are understood to apply solely to the lower level government and to have no relevance to the actions of any higher level of government. This article challenges the conventional understanding by arguing that individual rights appearing in state constitutions can in many circumstances play a meaningful role in restraining the exercise of national power. Specifically, the identification and enforcement of state constitutional rights can serve …
A Retrospective On Lucas V. South Carolina Coastal Council: Public Policy Implications For The 21st Century, Kim Diana Connolly
A Retrospective On Lucas V. South Carolina Coastal Council: Public Policy Implications For The 21st Century, Kim Diana Connolly
Journal Articles
No abstract provided.
State Courts As Agents Of Federalism: Power And Interpretation In State Constitutional Law, James A. Gardner
State Courts As Agents Of Federalism: Power And Interpretation In State Constitutional Law, James A. Gardner
Journal Articles
In the American constitutional tradition, federalism is commonly understood as a mechanism designed to institutionalize a kind of permanent struggle between state and national power. The same American constitutional tradition also holds that courts are basically passive institutions whose mission is to apply the law impartially while avoiding inherently political power struggles. These two commonplace understandings conflict on their face. The conflict may be dissolved for federal courts by conceiving their resistance to state authority as the impartial consequence of limitations on state power imposed by the U.S. Constitution. But this reconciliation is unavailable for state courts, which, by operation …
Neutralizing The Incompetent Voter: A Comment On Cook V. Gralike, James A. Gardner
Neutralizing The Incompetent Voter: A Comment On Cook V. Gralike, James A. Gardner
Journal Articles
No abstract provided.
The Regulatory Role Of State Constitutional Structural Constraints In Presidential Elections, James A. Gardner
The Regulatory Role Of State Constitutional Structural Constraints In Presidential Elections, James A. Gardner
Journal Articles
No abstract provided.
Madison's Hope: Virtue, Self-Interest, And The Design Of Electoral Systems, James A. Gardner
Madison's Hope: Virtue, Self-Interest, And The Design Of Electoral Systems, James A. Gardner
Journal Articles
In recent years, perhaps no institution of American governance has been so thoroughly and consistently excoriated by legal theorists as the familiar American system of winner-take-all elections. The winner-take-all system is said to waste votes, lead to majority monopolization of political power, and cause the under representation and consequent social and economic subordination of political minorities. Some political scientists have attempted to defend winner-take-all systems on the ground that they perform better than PR in maximizing long-term collective and social interests. This article argues, in contrast, that winner-take-all electoral systems rest upon, and can be adequately defended, if at all, …
Administrative Takings: A Realist Perspective On The Practice And Theory Of Regulatory Takings Cases, David A. Westbrook
Administrative Takings: A Realist Perspective On The Practice And Theory Of Regulatory Takings Cases, David A. Westbrook
Journal Articles
No abstract provided.
The Nature Of The American Constitution: Is There A Constitutional Right To Vote And Be Represented?, Jeffrey Rosen, James A. Gardner, Gary Peller, Edward Still, Brenda Wright
The Nature Of The American Constitution: Is There A Constitutional Right To Vote And Be Represented?, Jeffrey Rosen, James A. Gardner, Gary Peller, Edward Still, Brenda Wright
Journal Articles
No abstract provided.
From Yoder To Yoda: Traditional, Modern And Postmodern Models Of Religion In U.S. Constitutional Law, Rebecca Redwood French
From Yoder To Yoda: Traditional, Modern And Postmodern Models Of Religion In U.S. Constitutional Law, Rebecca Redwood French
Journal Articles
No abstract provided.
Southern Character, Confederate Nationalism, And The Interpretation Of State Constitutions: A Case Study In Constitutional Argument, James A. Gardner
Southern Character, Confederate Nationalism, And The Interpretation Of State Constitutions: A Case Study In Constitutional Argument, James A. Gardner
Journal Articles
No abstract provided.
The Slavery Of Emancipation, Guyora Binder
The Slavery Of Emancipation, Guyora Binder
Journal Articles
The Thirteenth Amendment abolishes the institution of slavery rather than freeing individual slaves. Yet it quickly came to stand for little more than granting universal rights to make labor contracts and to leave service. This article develops a distinction between abolishing an institution and reclassifying individuals within it. Drawing on the comparative history of slavery, it shows that the institution of slavery has generally included mechanisms for the manumission of slaves and their passage into a liminal status combining self-ownership with social subordination and relative isolation. A critical account of the Antelope litigation shows that proponents of mass manumission still …
Shut Up And Vote: A Critique Of Deliberative Democracy And The Life Of Talk, James A. Gardner
Shut Up And Vote: A Critique Of Deliberative Democracy And The Life Of Talk, James A. Gardner
Journal Articles
No abstract provided.
The More Things Change…: Superficial State Constitutional Analysis At The New York Court Of Appeals, James A. Gardner
The More Things Change…: Superficial State Constitutional Analysis At The New York Court Of Appeals, James A. Gardner
Journal Articles
No abstract provided.
The "States-As-Laboratories" Metaphor In State Constitutional Law, James A. Gardner
The "States-As-Laboratories" Metaphor In State Constitutional Law, James A. Gardner
Journal Articles
No abstract provided.
Justice William Johnson And The History Of Supreme Court Dissent, Meredith Kolsky Lewis
Justice William Johnson And The History Of Supreme Court Dissent, Meredith Kolsky Lewis
Journal Articles
No abstract provided.
Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder
Institutions And Linguistic Conventions: The Pragmatism Of Lieber's Legal Hermeneutics, Guyora Binder
Journal Articles
This article presents Francis Lieber’s 1839 treatise “Legal and Political Hermeneutics” as a surprisingly modern and pragmatic account of interpretation. It first explicates the two most important influences on Liber’s thought, the romantic philology of Friedrich Schleiermacher, and the institutional positivism of Whig jurists Story and Kent. It shows that both of these sources frankly acknowledged that interpretation is an institutional practice, organized by the evolving aims and customs of the institutions within which it took place. Both tended to view the writing and reading of texts as the deployment of linguistic conventions. Both movements thereby viewed meaning for all …
Did The Slaves Author The Thirteenth Amendment? An Essay In Redemptive History, Guyora Binder
Did The Slaves Author The Thirteenth Amendment? An Essay In Redemptive History, Guyora Binder
Journal Articles
American constitutional interpretation is deeply traditionalist, and privileges original intent. The difficulty with thus authorizing the past in interpreting the Thirteenth Amendment is that it purports to abolish custom and tradition as unjust. This essay argues that, given the Amendment’s denunciation of the polity that enacted it as illegitimate, its questionable formal pedigree, and the agency of the slaves in precipitating, defining, and resolving the crisis that enabled it, the slaves have a moral claim to status as its authors. It follows that the original intent guiding interpretation should be that of the slaves themselves.
What Is A State Constitution?, James A. Gardner
What Is A State Constitution?, James A. Gardner
Journal Articles
No abstract provided.
The Failed Discourse Of State Constitutionalism, James A. Gardner
The Failed Discourse Of State Constitutionalism, James A. Gardner
Journal Articles
No abstract provided.
The Uses And Abuses Of Incumbency: People V. Ohrenstein And The Limits Of Inherent Legislative Power, James A. Gardner
The Uses And Abuses Of Incumbency: People V. Ohrenstein And The Limits Of Inherent Legislative Power, James A. Gardner
Journal Articles
No abstract provided.
The Positivist Foundations Of Originalism: An Account And Critique, James A. Gardner
The Positivist Foundations Of Originalism: An Account And Critique, James A. Gardner
Journal Articles
No abstract provided.
Mastery, Slavery, And Emancipation, Guyora Binder
Mastery, Slavery, And Emancipation, Guyora Binder
Journal Articles
Hegel's dialectic of master and slave in the Phenomenology of Mind portrays a master unable to win genuine recognition from a slave because unwilling to confer it. The dialectic implies that freedom has to be conceived as association based on mutual respect, rather than independence. This article offers a communitarian interpretation of emancipation inspired by Hegel's dialectic of master and slave. It proceeds from an account of slave society which, like Hegel's dialectic, equates slavery with the denial of social recognition. This account argues that the experience of slave society led both the masters and the slaves to conceive of …
Men Of Great And Little Faith: Generations Of Constitutional Scholars, Alfred S. Konefsky
Men Of Great And Little Faith: Generations Of Constitutional Scholars, Alfred S. Konefsky
Journal Articles
No abstract provided.
Article Iii Limits On Article I Courts: The Constitutionality Of The Bankruptcy Court And The 1979 Magistrates Act, Lucinda M. Finley
Article Iii Limits On Article I Courts: The Constitutionality Of The Bankruptcy Court And The 1979 Magistrates Act, Lucinda M. Finley
Journal Articles
No abstract provided.
The "Public Uses" Of Eminent Domain: History And Policy, Errol E. Meidinger
The "Public Uses" Of Eminent Domain: History And Policy, Errol E. Meidinger
Journal Articles
This paper examines the effects and implications of the ‘public use’ requirement for the exercise of eminent domain in the United States. It is part of an ongoing inquiry the consequences of eminent domain in the United States. The first part examines the history of the public use requirement, both how the doctrine has been articulated and logically extended and what purposes have been accomplished under it. The second part of the paper is an analytic critique of the public use doctrine. After considering whether any principled standard can be developed to delimit the proper uses of eminent domain, it …
The Constitutional Supervision Of Administrative Agencies In The Federal Republic Of Germany: Similarities And Contrasts With American Law, Lee A. Albert
Journal Articles
No abstract provided.
Enforcing Subpoenas Against The President: The Question Of Mr. Jaworski’S Authority, Lee A. Albert, Larry G. Simon
Enforcing Subpoenas Against The President: The Question Of Mr. Jaworski’S Authority, Lee A. Albert, Larry G. Simon
Journal Articles
No abstract provided.