Law Commons^™

Business Subsidies And The Dormant Commerce Clause, Dan T. Coenen

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In this Article, I seek to respond to the Court's overture with a treatment of of subsidies under the dormant Commerce Clause that moves progressively from the general to the specific. Part I examines key Supreme Court cases to show that the basic question of whether state business subsidies are constitutional remains open and important. Part II then turns to how that question should be resolved, focusing on whether subsidies are fairly distinguishable from ostensibly equivalent, and concededly unlawful, discriminatory tax relief. The thrust of Part II is that both precedent and policy support the traditional, pre-West Lynn Creamer" view …

The Newly Found "Compassion" For Sexually Violent Predators: Civil Commitment And The Right To Treatment In The Wake Of Kansas V. Hendricks, Elizabeth Weeks

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In light of heart-wrenching stories of sexual abuse and public demands for safety, the Kansas v. Hendricks case presented the Supreme Court with compelling facts on which to uphold the Kansas commitment strategy. After all, the statute prevented the release of a man whose history of sex crimes, incarceration, and institutionalization spanned nearly two decades, and who admitted he still had sexual desires for children but could not control his urges. Faced with that evidence, the Court would have been hard-pressed to strike down the Kansas statute by finding that such a predator received inadequate treatment for his disorder, or …

Naked Politics, Federal Courts Law, And The Canon Of Acceptable Arguments, Michael Wells

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In this Article, I argue that there is a wide gap between the aspirations and the actual operation of Federal Courts law. I maintain that, despite the conversational rule forbidding it, raw substance in fact wields significant influence in the resolution of Federal Courts issues. For example, the familiar argument that federal courts should be favored because they are more "sympathetic" to federal claims is really an appeal to naked politics. The empirical premise of this and other arguments of naked politics is that there are structural differences between federal and state courts which affect the outcomes of close cases, …

Guide To Law And Literature For Teachers, Students, And Researchers, Paul J. Heald

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Companion text to Literature and Legal Problem Solving: Law and Literature as Ethical Discourse

Disability, Deference, And The Integrity Of The Academic Enterprise, Anne Proffitt Dupre

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Congress has established a complex set of laws regarding the education of disabled students. This Article discusses the obligations the Rehabilitation Act of 1973, the Americans with Disabilities Act of 1990, and the Individuals with Disabilities Education Act impose on schools and focuses on how courts interpreting these statutes address the decisions of educators regarding how best to educate disabled students. Professor Dupre brings to light a striking contrast between how courts regard the decisions of educators in higher education as opposed to the decisions of educators in primary and secondary schools, routinely according the former considerable deference while often …

The Joke In Critical Race Theory: De Gustibus Disputandum Est?, Dan Subotnik

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No abstract provided.

Legal Services Lawyers And The Influence Of Third Parties On The Lawyer-Client Relationship: Some Thoughts From Scholars, Practitioners, And Courts, Samuel J. Levine

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Among the challenges facing the lawyer who renders legal services to clients with limited means are ethical and professional questions relating to the influence of third parties on the lawyer-client relationship. Although all lawyers may potentially face ethical dilemmas involving third parties, legal services lawyers are particularly vulnerable to such issues because, unlike most lawyers, legal services lawyers generally rely on the financial support of someone other than their client. These challenges may take many forms, affecting a variety of ethical and professional considerations. Levine examines a number of areas in which bar association committees, scholars, and courts have addressed …

Fragments On The Deathwatch, Louise Harmon

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No abstract provided.

Goodbye To The Sat, Lsat? Hello To Equity By Lottery? Evaluating Lani Guinier’S Plan For Ending Race Consciousness, Dan Subotnik

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No abstract provided.

Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine

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In his 1986 Yale Law Journal article, Robert Cover wrote of an explosion of legal scholarship placing interpretation at the crux of the enterprise of law. As part of the continuing emphasis on hermeneutics in constitutional interpretation, a body of literature has emerged comparing constitutional textual analysis to Biblical hermeneutics. This scholarship has been based on the recognition that, like the Constitution, the Bible functions as an authoritative legal text that must be interpreted in order to serve as the foundation for a living community. Levine looks at a basic hermeneutic device common to both Biblical and constitutional interpretation, the …

Section 1983 Litigation, Martin A. Schwartz, George C. Pratt

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No abstract provided.

Does New York's Death Penalty Statute Violate The New York Constitution? (Symposium: New York State Constitutional Law: Trends And Developments), Richard Klein, Hon. Stewart F. Hancock, Jr., Christopher Quinn

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No abstract provided.

Reevaluating Substantive Due Process As A Source Of Protection For Psychiatric Patients To Refuse Drugs, William M. Brooks

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No abstract provided.

New York Public School Financing Litigation (Symposium: New York State Constitutional Law: Trends And Developments), Leon D. Lazer

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No abstract provided.

What’S Wrong With Critical Race Theory?: Reopening The Case For Middle Class Values, Dan Subotnik

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No abstract provided.

The Brady Act: Shot Down By The Tenth Amendment, Patricia A. Rooney

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No abstract provided.

Employment Discrimination And Presidential Immunity Cases, Eileen Kaufman

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No abstract provided.

Civil Rights Division Association Symposium: The Civil Rights Division At Forty, Howard Glickstein, Stephen J. Pollack, Brian Landsberg, Harold Greene, St. John Barrett, Paul F. Hancock, Muriel Spence, Michael Middleton, James A. Turner

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No abstract provided.

Stumbling Toward Equity: The Role Of Government In Kidney Transplantation, Laura Dooley, Robert Gaston

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No abstract provided.

Rethinking The Supreme Court’S Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine

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In recent years, the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief. While the Justices have articulated valid concerns concerning these cases, courts should not allow these concerns to deter them from making decisions vital to the effective adjudication of Free Exercise and Establishment Clause cases. In fact, it appears that as a result of the Court's increasing refusal to consider carefully the religious questions central to many cases, the Court often tends to group together religious claims and practices, regardless of the relative …

Introductory Note: Symposium On Lawyering And Personal Values – Responding To The Problems Of Ethical Schizophrenia, Samuel J. Levine

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In recent years, legal practitioners and scholars alike have identified a growing crisis in the legal profession. Increasingly, lawyers feel dissatisfied with the roles they are expected to play and the conduct demanded of them. In particular, many lawyers see a widening gap between their personal values and those employed in legal practice. In response to the dichotomy between personal and professional values, some lawyers attempt to develop a corresponding dichotomy in their personalities, separating the “professional self” from the “personal self.” Such a response, however, may lead to a kind of “ethical schizophrenia,” a condition in which an individual …

Claims For Damages For Violations Of State Constitutional Rights – Analysis Of The Recent Court Of Appeals Decision In Brown V. New York; The Resolved And Unresolved Issues, Martin A. Schwartz

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No abstract provided.

Time To Try Mediation Of International Commercial Disputes, Harold Abramson

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No abstract provided.

Medtronic V. Lohr: For Want Of A Word, The Patient Was Almost Lost - Fixing The Mischief Caused In Cipollone By Dividing The Preemption Stream, Suzanne Darrow-Kleinhaus

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No abstract provided.

How Does The New York Constitution Compare To The U.S. Constitution? (Annual Issue On New York State Law: Trends And Developments), Eileen Kaufman, Leon Friedman

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No abstract provided.

Academic Freedom In Religiously Affiliated Law Schools: A Jewish Perspective. (Symposium On Religiously Affiliated Law Schools), Howard A. Glickstein

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No abstract provided.

Tort Law (Symposium: The Supreme Court And State And Local Government Law: The 1996-97 Term), Leon D. Lazer

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No abstract provided.

Halacha And Aggada: Translating Robert Cover’S Nomos And Narrative, Samuel J. Levine

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Levine takes a look at Robert Cover's 1983 Harvard Law Review article, Nomos and Narrative. Nomos is characterized by its heavy reliance on Jewish sources as a basis for analyzing contemporary American legal theory. The basis of narrative is the thesis that no set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning, so law becomes not merely a system of rules to be observed, but a world in which we live. Cover's explanation of these ideas coincided with and influenced the emergence of what has become known as "legal storytelling". In …

Comfortably Penumbral, Glenn Harlan Reynolds

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A followup to "Penumbral Reasoning on the Right", 140 U. Pa. L. Rev. 1333 (1992), this paper notes the increased use, and acceptance, of penumbral reasoning by federal courts in recent years. It suggests that this trend is a positive one, and likely to lead to more, rather than less, fidelity to constitutional text and structure.

Commerce Clause Restraints On State Tax Incentives, Walter Hellerstein

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The states' provision of tax incentives designed to encourage economic development within their borders has long been a feature of the American legislative landscape. Today every state provides tax incentives as an inducement to local industrial location and expansion. Indeed, scarcely a day goes by without some state offering yet another tax incentive to spur economic development, often in an effort to attract a particular enterprise to the state.

The debate over the efficacy and wisdom of state tax and other business incentives is intense and important, as other articles in this Symposium plainly reveal. My purpose here, however, is …