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Full-Text Articles in Law
Government Dragnets, Christopher Slobogin
Government Dragnets, Christopher Slobogin
Law and Contemporary Problems
Slobogin describes the nature and effects of dragnet actions. They do so primarily through the prism of Supreme Court and lower court cases, but these sections also look at law-enforcement efforts that have yet to lead to litigation and imagine future dragnet efforts as well, with a special emphasis on the role technology can play in motivating dragnets and carrying them out. He then summarizes the Supreme Court's approach to group searches and the most significant alternative proposals for dealing with them.
Pollock, Macomber, And The Role Of The Federal Courts In The Development Of The Income Tax In The United States, Charlotte Crane
Pollock, Macomber, And The Role Of The Federal Courts In The Development Of The Income Tax In The United States, Charlotte Crane
Law and Contemporary Problems
Crane notes that the federal income tax is much more a lawyer's tax than either the income taxes of other jurisdictions or the several nonincome federal taxes. She locates the source of the legalistic nature of the tax in the Supreme Court's 1895 opinion in Pollock v. Farmers' Loan & Trust Co., invalidating the income tax of 1894 as a constitutionally impermissible unapportioned direct tax. She describes how the ghost of Pollock hovered over the income tax for decades after its reintroduction in 1913, inspiring Eisner v. Macomber and other judicial explorations of the constitutional meaning of income. Moreover, she …
In Defense Of “Footnote Four”: A Historical Analysis Of The New Deal’S Effect On Land Regulation In The U.S. Supreme Court, Christopher S. Dodrill
In Defense Of “Footnote Four”: A Historical Analysis Of The New Deal’S Effect On Land Regulation In The U.S. Supreme Court, Christopher S. Dodrill
Law and Contemporary Problems
At the turn of the nineteenth century, the US Supreme Court established and reinforced numerous so-called "economic rights." During the Lochner v. New York era, the Court invalidated almost 200 federal and state economic and labor regulations for interfering with the right to contract and for violating substantive due process. In 1937, however, Justice Stone's famous "footnote four" in United States v. Carolene Products Co. closed the coffin on Lochner. After Carolene Products, the Court stopped applying heightened scrutiny to economic legislation, and it began consciously protecting "discrete and insular minorities." Here, Dodrill explains the Lochner-era Supreme Court's standard of …
Bred Meat: The Cultural Foundation Of The Factory Farm, David N. Cassuto
Bred Meat: The Cultural Foundation Of The Factory Farm, David N. Cassuto
Law and Contemporary Problems
The care and upkeep of animals raised for human consumption has devolved into an industrial operation focused on maximizing economic return while paying little or no heed to the needs of the "stock." Discussions of the nature of factory farming inevitably include issues of ethical treatment of nonhuman animals and often segue into apologies for or against "animal rights." This article takes a different tack, asking instead how and why the factory-farm industry could grow ascendant in an era when the notion of the human-animal divide has become increasingly blurred.
What’S Good For The Goose…The Israeli Supreme Court, Foie Gras And The Future Of Farmed Animals In The United States, Mariann Sullivan, David J. Wolfson
What’S Good For The Goose…The Israeli Supreme Court, Foie Gras And The Future Of Farmed Animals In The United States, Mariann Sullivan, David J. Wolfson
Law and Contemporary Problems
Of particular interest in the issue of cruelty to farmed animals is the 2003 decision by the Supreme Court of Israel, sitting as the High Court of Justice, annulling, on animal cruelty grounds, regulations regarding the force-feeding of geese for the production of foie gras, and, ultimately, prohibiting the practice and thereby eradicating the industry.
A Commander’S Power, A Civilian’S Reason: Justice Jackson’S Korematsu Dissent, John Q. Barrett
A Commander’S Power, A Civilian’S Reason: Justice Jackson’S Korematsu Dissent, John Q. Barrett
Law and Contemporary Problems
Barrett examines the dissent opinion of Supreme Court Justice Robert Houghwout Jackson in Korematsu v. United States, which centered on the internment of Japanese Americans during WWII. Although the dissent has been criticized as incoherent, it contains strong legal implications within its complexity.
Watching The Watchers: Enemy Combatants In The Internment Shadow, Jerry Kang
Watching The Watchers: Enemy Combatants In The Internment Shadow, Jerry Kang
Law and Contemporary Problems
In the past, the government has avoided accountability for the atrocity of allowing the internment of Japanese Americans during WWII. Kang examines whether the federal judiciary is again shying away from its responsibilities of holding the other branches accountable for their actions as they conduct their war on terror.
The Constitution Glimpsed From Tule Lake, Patrick O. Gudridge
The Constitution Glimpsed From Tule Lake, Patrick O. Gudridge
Law and Contemporary Problems
Although Ex Parte Endo undid the wrongs that resulted from the US Supreme Court decision Korematsu v. United States, the Japanese Americans who faced internment during WWII cannot so easily put the past behind them. Gudridge examines the publication The Spoilage, which documents the political efforts of those inside the internment camp at Tule Lake, and relates them to Endo and Korematsu.
Korematsu And Beyond: Japanese Americans And The Origins Of Strict Scrutiny, Greg Robinson, Toni Robinson
Korematsu And Beyond: Japanese Americans And The Origins Of Strict Scrutiny, Greg Robinson, Toni Robinson
Law and Contemporary Problems
The authors examine the role that the Japanese American Citizens League played in the development of the "strict scrutiny" doctrine partly responsible for the ruling in Brown v. Board of Education. The plight of Japanese Americans during their WWII internment gave them experience in implementing this doctrine, which they passed on to the NAACP.
The Japanese American Cases, 1942-2004: A Social History, Roger Daniels
The Japanese American Cases, 1942-2004: A Social History, Roger Daniels
Law and Contemporary Problems
Daniels examines the changing reactions of the government and the public to the internment of Japanese Americans during WWII and in the six decades following. Some comparisons can be drawn between this action and the attitudes encountered by the public in the wake of the Sep 11, 2001 terrorist attacks.
Speech And Strife, Robert L. Tsai
Speech And Strife, Robert L. Tsai
Law and Contemporary Problems
Tsai examines the ways in which the US Supreme Court uses language to signal its authority. One technique of the Court is to frequently use the image of institutional conflict within its rulings.
The Majoritarian Rehnquist Court?, Neal Devins
The Majoritarian Rehnquist Court?, Neal Devins
Law and Contemporary Problems
Devins examines the reasons behind the tendency of the US Supreme Court under William Rehnquist to strike down federal laws. Majoritarian forces, including the use of the Court as a check against Congress, have led to the invalidation of many federal statutes.
The Cycles Of Constitutional Theory, Barry Friedman
The Cycles Of Constitutional Theory, Barry Friedman
Law and Contemporary Problems
Friedman presents information on the cyclical nature of constitutional theory. Because constitutional theory is a reaction to the current developments of constitutional law, it is interesting to view constitutional issues through the framework of different historical circumstances.
The Post-Zelman Voucher Battleground: Where To Turn After Federal Challenges To Blaine Amendments Fail, Luke A. Lantta
The Post-Zelman Voucher Battleground: Where To Turn After Federal Challenges To Blaine Amendments Fail, Luke A. Lantta
Law and Contemporary Problems
Lantta presents information concerning the US Supreme Court decision Zelman v. Simmons-Harris and its impact upon school voucher programs. School voucher proponents are now attempting to bring about the revocation of Blaine amendments to state laws that prohibit the public funding of private schools in one form or another.
Warning: Labeling Constitutions May Be Hazardous To Your Regime, Suzanna Sherry
Warning: Labeling Constitutions May Be Hazardous To Your Regime, Suzanna Sherry
Law and Contemporary Problems
Sherry presents information concerning the labeling of court decisions as being liberal or conservative victories. Because each case can be viewed in different aspects of liberalism and conservatism, it is more appropriate to simply recognize that there are important, non-ideological values at stake on both sides of each case.
Correcting Federalism Mistakes In Statutory Interpretation: The Supreme Court And The Federal Arbitration Act, David S. Schwartz
Correcting Federalism Mistakes In Statutory Interpretation: The Supreme Court And The Federal Arbitration Act, David S. Schwartz
Law and Contemporary Problems
The current judicial treatment of the Federal Arbitration Act is an embarrassment to a Supreme Court whose majority is supposed to be leading a federalism revival, if not a federalism revolution. In 1984, in Southland Corp. v. Keating, the Court held that the FAA is substantive federal law that preempts state laws regulating arbitration agreements. The Court thereby transformed a quaint, 60-year-old procedural statute into "a permanent, unauthorized eviction of state-court power to adjudicate a potentially large class of disputes," as well as an eviction of state lawmaking power over the traditional state domain of contract law. Even worse, Southland …
“Regulatory Daubert”: A Proposal To Enhance Judicial Review Of Agency Science By Incorporating Daubert Principles Into Administrative Law, Alan Charles Raul, Julie Zampa Dwyer
“Regulatory Daubert”: A Proposal To Enhance Judicial Review Of Agency Science By Incorporating Daubert Principles Into Administrative Law, Alan Charles Raul, Julie Zampa Dwyer
Law and Contemporary Problems
In Daubert v. Merrell Dow Pharmaceuticals Inc, the US Supreme Court empowered federal judges to reject irrelevant or unreliable scientific evidence. Daubert provides a suitable framework for reviewing the quality of agency science and the soundness of agency decisions consistent with the standards established for review of agency rulemakings under the Administrative Procedure Act.
The Supply And Demand Sides Of Judicial Policy-Making (Or, Why Be So Positive About The Judicialization Of Politics?), Cornell W. Clayton
The Supply And Demand Sides Of Judicial Policy-Making (Or, Why Be So Positive About The Judicialization Of Politics?), Cornell W. Clayton
Law and Contemporary Problems
A major reason that many people are intensely interested in who sits on the Supreme Court is that legal decisions can have great influence on the effectuation or frustration of political objectives. Clayton does not view the trend toward the "judicialization" of politics as necessarily antithetical to democratic values because Court decisions are within the mainstream of contemporary political values and electoral preferences.
Bush V. Gore And The French Revolution: A Tentative List Of Some Early Lessons, Sanford Levinson
Bush V. Gore And The French Revolution: A Tentative List Of Some Early Lessons, Sanford Levinson
Law and Contemporary Problems
Levinson examines the Supreme Court's decision in "Bush v. Gore" as an entry-point into understanding American constitutional culture. "Law," as people ordinarily think of it, may be much less important than people might believe (or hope) with regard to controlling politics. But "law" in another way may have Americans gripped within a constitutional iron cage that makes it next to impossible to engage in a cogent discussion of what might ail contemporary American polity and, concomitantly, what might be needed by way of reforms.
Of Cherries, Fudge, And Onions: Science And Its Courtroom Perversion, David W. Peterson, John M. Conley
Of Cherries, Fudge, And Onions: Science And Its Courtroom Perversion, David W. Peterson, John M. Conley
Law and Contemporary Problems
The thesis of this article is that the Supreme Court decision in Daubert v. Merrell Dow Pharmaceuticals, Inc.'s focus on the scientific method, however rigorously applied, invites certain classes of abuses. There are instances in which evidence can be made to look more scientific by a process that in fact and substance makes is utterly unscientific.
The Constitutional Failure Of The Strickland Standard In Capital Cases Under The Eighth Amendment, Amy R. Murphy
The Constitutional Failure Of The Strickland Standard In Capital Cases Under The Eighth Amendment, Amy R. Murphy
Law and Contemporary Problems
Criminal defendants are guaranteed the right to effective assistance of counsel under the Sixth Amendment, but the Supreme Court's decision in "Strickland" has given appellate courts overly broad discretion to determine exactly what constitutes ineffective assistance of counsel. Murphy reviews the right to counsel and discusses the crucial role of counsel in capital cases throughout the trial and appellate processes.
Indirect Constitutional Discourse: A Comment On Meese, Robert F. Nagel
Indirect Constitutional Discourse: A Comment On Meese, Robert F. Nagel
Law and Contemporary Problems
Nagel responds to Alan J. Meese's comments on Pres Clinton's actions following the Supreme Court's decision in "Regents of the University of California v. Bakke." While the Clinton Administration's strategy does not produce the best possible form of constitutional dialogue, it does produce another recognizable form of dialogue, one full of confusion and hypocrisy but a surprisingly central and entrenched part of the practice of judicial review itself.
An Economic Analysis Of The Religious Freedom Restoration Act, Travis C. Wheeler
An Economic Analysis Of The Religious Freedom Restoration Act, Travis C. Wheeler
Law and Contemporary Problems
As an attempt by Congress to overturn a Supreme Court ruling by statute, the Religious Freedom Restoration Act (RFRA), although passed by a congressional landslide, was one of the most controversial pieces of legislation passed during Bill Clinton's presidency. Wheeler examines RFRA from a law and economics perspective to show that, as a method by which Congress attempted to impose its definition of a constitutional right upon the courts, the Act was inefficient.
Writing Off Race, Girardeau A. Spann
Writing Off Race, Girardeau A. Spann
Law and Contemporary Problems
Because the US Constitution says absolutely nothing about affirmative action, the Supreme Court should have absolutely nothing to say about it either. Rather, the political branches should set the nation's affirmative action policy, and they should do so with political leadership provided by the President. Spann considers Pres Clinton's record on affirmative action.
Bakke Betrayed, Alan J. Meese
Bakke Betrayed, Alan J. Meese
Law and Contemporary Problems
While it seems that a President who disagrees with the Supreme Court's account of the Constitution faces only two choices--to enforce the Court's decision or defy the Court and take his case to a skeptical populace--there is a third way in which the President can publicly embrace the doctrine in question, while at the same time refusing to follow it. Pres Clinton's Administration has followed just such a third way approach to "Regents of the University of California v. Bakke."
Sentenced For A “Crime” The Government Did Not Prove: Jones V. United States And The Constitutional Limitations On Factfinding By Sentencing Factors Rather Than Elements Of The Offense, Benjamin J. Priester
Sentenced For A “Crime” The Government Did Not Prove: Jones V. United States And The Constitutional Limitations On Factfinding By Sentencing Factors Rather Than Elements Of The Offense, Benjamin J. Priester
Law and Contemporary Problems
Priester argues that the Constitution does restrict the power of the legislature by requiring that certain facts be proved as elements of the offense. He notes the Supreme Court's missed opportunity in "Jones v. United States" to adopt the test proposed by Justice Scalia.
The Rhetoric Of Neutrality And The Philosophers’ Brief: A Critique Of The Amicus Brief Of Six Moral Philosophers In Washington V. Glucksberg And Vacco V. Quill, Richard Church
Law and Contemporary Problems
Church discusses the amicus brief to the US Supreme Court in the companion assisted suicide cases of "Washington v. Glucksberg" and "Vacco v. Quill," in which six philosophers offer their views. The philosophers' charge--that prohibiting physician-assisted suicide can only be based on impermissible sectarian religious or ethical premises--can be raised against their "neutral" liberal argument itself.
Recapturing The Spirit Of Furman: The American Bar Association And The New Abolitionist Politics, Austin Sarat
Recapturing The Spirit Of Furman: The American Bar Association And The New Abolitionist Politics, Austin Sarat
Law and Contemporary Problems
Sarat locates the American Bar Association's call for a moratorium on executions in the context of modern abolitionist politics. New abolitionism links anti-death penalty work with a broader civil rights agenda.
2001: A Train Ride: A Guided Tour Of The Sixth Amendment Right To Counsel, Gerald F. Uelmen
2001: A Train Ride: A Guided Tour Of The Sixth Amendment Right To Counsel, Gerald F. Uelmen
Law and Contemporary Problems
Uelmen offers a guided railway tour of the Sixth Amendment right to counsel, making stops along the way to revisit various legal landmarks such as "Nabb v. United States" and "Powell v. Alabama."
Solving The Chevron Puzzle, Linda R. Cohen, Matthew L. Spitzer
Solving The Chevron Puzzle, Linda R. Cohen, Matthew L. Spitzer
Law and Contemporary Problems
The "Chevron" decision, which boils down to the rule that federal courts must respect any reasonable interpretation by an administrative agency of its own statute, is discussed. This decision and its relationship to the modern system of administrative government in the US is examined.