Law Commons^™

Constructing The Substantive Constitution, James E. Fleming

Faculty Scholarship

I. Introduction A. The Flights from Substance in Constitutional Theory A specter is haunting constitutional theory-the specter of Lochner v. New York.' In the Lochner era, the Supreme Court gave heightened judicial protection to substantive economic liberties through the Due Process Clauses.2 In 1937, during the constitutional revolution wrought by the New Deal, West Coast Hotel v. Parrish3 officially repudiated the Lochner era, marking the first death of substantive due process.4 Nevertheless, the ghost of Lochner has perturbed constitutional theory ever since, manifesting itself in charges that judges are "Lochnering" by imposing their own substantive fundamental values in the guise …

The Social Origins Of Property, Jack M. Beermann, Joseph William Singer

Faculty Scholarship

The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use.' When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves "to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole."' To determine when a regulation amounts to a "taking" of property …

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …

Thayer Versus Marshall, Gary S. Lawson

Faculty Scholarship

Professor Nagel's intriguing paper1 suggests that James Bradley Thayer's clear error rule of constitutional adjudication 2 is not an effective vehicle for controlling, and indeed may even exacerbate, the tendency toward invective that often characterizes modem court decisions and legal arguments. Professor Nagel is too charitable. To the extent that Thayer's article has had an influence on either the style or substance of modem constitutional law, that influence has been even more pernicious than Professor Nagel lets on. The source of that problem, however, is less the clear error rule itself than the premises that generate and, in Thayer's view, …

Foreword: Two Visions Of The Nature Of Man, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

This year, for the first time in its ten-year history, The Federalist Society convened in a world no longer haunted by the specter of a global communist empire. Seventy-four years after its creation, Lenin's Union of Soviet Socialist Republics had shattered into many fragments; more importantly, his political philosophy had taken its well-deserved place on the "ash heap of history."

Defendants' Brief In The School Finance Case: Mcduffy V. Robertson: An Excerpt And A Summary, Mary Connaughton

Faculty Scholarship

The wisdom of promoting public education in the Commonwealth was recognized by the earliest settlers, the framers of the Constitution, and many subsequent legislatures, officials, educators and citizens. The opinions of the Department, the Secretary of Education, the Governor and various educators, contained in the stipulation, demonstrate that a policy of supporting public education is as important today as ever.²

The implementation of this policy goal by the Legislature and municipalities involves choices that are at the heart of representative government: how much public money to raise, how best to allocate the money among education and the many other …