Law Commons^™

The Persistent Vegetative State: A View Across The Legal Divide, H. Richard Beresford

Cornell Law Faculty Publications

Praise for Fred Plum can take many forms: for pedagogical dynamism, for depth and breadth of contributions to neurology and neuroscience, for sure-handed guidance of a department that has infused neurology with today’s and tomorrow’s leaders, and for a truly uncanny ability to fan a drive to excel in those he has touched. Mindful of his admonition to be substantive in what one says and does, my praise will embody a few reflections on the enduring legal and social impact of the “point of view” he and Bryan Jennett authored for the journal Lancet in 1972.

The Concept Of Religion, Eduardo M. Peñalver

Cornell Law Faculty Publications

Commerce Clause Restraints On State Tax Incentives, Walter Hellerstein

Scholarly Works

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 …

In Search Of A Substantive Republic, James E. Fleming, Linda C. Mcclain

Faculty Scholarship

The publication of Michael J. Sandel's Democracy's Discontent: America in Search of a Public Philosophy is a long-awaited and important event in political and constitutional theory. In 1982, through his first book, Liberalism and the Limits of Justice,1 Sandel emerged as a leading communitarian or civic republican critic of liberalism. That book became prominent, not because its criticisms of liberalism were dispositive, but because it eloquently and elegantly captured discontent with liberalism and evoked yearnings for an alternative. Since then, Sandel has occupied a position on the American intellectual landscape as a placeholder for a *510 communitarian or civic …

Section 8: Federalism: A Court In Search Of Itself, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

The Last Word Debate: How Social And Political Forces Shape Constitutional Values, Neal Devins

Popular Media

No abstract provided.

Comment: Seminole Tribe V. Florida, Gordon G. Young

Faculty Scholarship

No abstract provided.

Law And Religion In Israel And Iran: How The Integration Of Secular And Spiritual Laws Affects Human Rights And The Potential For Violence, S. I. Strong

Faculty Publications

The first area of discussion is the structure of each government system. This analysis not only sets the legal framework for later analysis, but demonstrates how both Israel and Iran have brought religion into the very fabric of their legal institutions.The second area of analysis in Part II focuses on the principles of sovereignty and constitutional interpretation utilized by each State. Familiarity with these concepts is necessary in order to learn which religious principles, if any, are incorporated into each nation's general legal environment. These principles, which are implicitly understood by members of the society, are often unstated in judicial …

"Possessing With Intent To Distribute" Under The Schoolyard Statute, Sonja R. West

Scholarly Works

This Comment proposes that courts should explicitly rather than implicitly distinguish the different types of defendants accused of possession with intent to distribute controlled substances within a school zone. Part I reviews the current state of the law on this issue and presents the legislative history and textual arguments involved in the debate over the mens rea requirement. Part II examines the factual circumstances at issue in the relevant cases and concludes that these factual circumstances, rather than competing statutory interpretations, lead to *1401 the different results. Finally, Part III emphasizes the need to recognize these implicit categories of offenses …

Diversity: The Red Herring Of Equal Protection, Sharon E. Rush

UF Law Faculty Publications

Couching the constitutional inquiry in cases like Bakke and VMI in the context of integration also puts in perspective the diversity justification. Affirmative action policies are constitutional because they integrate state programs. Integration on the basis of race and sex also diversifies state programs. In contrast, attempts to justify sex-segregation in state programs by arguing the policy promotes diversity is irrelevant to an equal protection analysis. Voluntarily created all-female schools should be constitutional because they promote the equal citizenship of women without damaging the equal citizenship stature of men. This is true for voluntarily race-segregated programs for minorities; as well. …

The Role Of Religion In Public Life And Official Pressure To Participate In Alcoholics Anonymous, Paul E. Salamanca

Law Faculty Scholarly Articles

If religion is an innate aspect of the human experience, it should not be surprising that Alcoholics Anonymous (A.A.), a widely known and arguably religious support group for problem drinkers, has become a common and effective means of combating alcoholism. Also, it should not be surprising that probation officers, parole officers, judges, bar overseers, wardens, and myriad others exercising state authority routinely push individuals toward A.A. Arguably, however, official referral of problem drinkers to A.A. violates current interpretations of the Establishment Clause because of the quasi-religious nature of the program.

Although separationism helps both church and state, our Constitution does, …

In Search Of The Lost Chord: Reflections On The 1996 Item Veto Act, Neal Devins

Faculty Publications

No abstract provided.

The Second Time As Tragedy: The Assisted Suicide Cases And The Heritage Of Roe V. Wade, Seth F. Kreimer

All Faculty Scholarship

No abstract provided.

Integrating Normative And Descriptive Constitutional Theory: The Case Of Original Meaning, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Instrumental And Non-Instrumental Federalism, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Recipe For Trouble: Some Thoughts On Meaning, Translation And Normative Theory, Michael C. Dorf

Cornell Law Faculty Publications

No abstract provided.

Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein

Scholarly Works

This article examines an important and recurring question that courts frequently resolve, but rarely analyze: whether taxing and spending measures should be viewed together when a state imposes a nondiscriminatory tax but also affords relief to some taxpayers through government spending. The answer to this question will often determine whether the state's actions violate constitutional strictures against discriminatory taxation. The taxing measure and the spending measure will generally pass muster if viewed in isolation. After all, courts rarely invalidate nondiscriminatory taxing measures on constitutional grounds. And true government spending measures, if considered alone, plainly fall outside the reach of constitutional …

Suspect Linkage: The Interplay Of State Taxing And Spending Measures In The Application Of Constitutional Antidiscrimination Rules, Dan T. Coenen, Walter Hellerstein

Scholarly Works

This article examines an important and recurring question that courts frequently resolve, but rarely analyze: whether taxing and spending measures should be viewed together when a state imposes a nondiscriminatory tax but also affords relief to some taxpayers through government spending. the answer to this question will often determine whether the state's actions violate constitutional strictures against discriminatory taxation. The taxing measure and the spending measure will generally pass muster if viewed in isolation. After all, courts rarely invalidate nondiscriminatory taxing measures on constitutional grounds. And true government spending measures, if considered alone, plainly fall outside the reach of constitutional …

On Reading Recipes -- And Constitutions, Gary S. Lawson

Faculty Scholarship

Modem theories of constitutional interpretation typically make the truth of propositions about constitutional meaning depend, at least to some degree, on the extent to which those propositions (1) lead to politically legitimate results' and/or (2) cohere with modem constitutional practice.2 That is, such theories generally maintain that correct interpretations of the Constitution must provide normative grounds to apply those interpretations in real cases, must be consistent with at least a substantial amount of real-world constitutional decisionmaking, or both.

Original Meaning Without Originalism, James E. Fleming

Faculty Scholarship

Is it possible for a constitutional theorist to give due regard to original meaning in constitutional interpretation without being an originalist? Narrow originalists, such as Robert H. Bork and Justice Antonin Scalia, have asserted that it is not.' On their view, it is hypocritical for anyone who is not a narrow originalist to make recourse to original meaning-a clear case of the devil quoting scripture. Their view is bogus. Nevertheless, constitutional theorists who are not narrow originalists have not paid sufficient attention to how arguments based on original meaning function in constitutional law. One of the many virtues of Michael …

State User Fees And The Dormant Commerce Clause, Dan T. Coenen

Scholarly Works

This Article considers the interplay of two central tenets of the U.S. Supreme Court's dormant commerce clause jurisprudence. The first of these principles exempts from the general proscription on discrimination against interstate commerce a state's actions as a "market participant," rather than as a "market regulator." The second principle, in contrast, renders the nondiscrimination rule fully applicable to the imposition of state "user fees."

Part II of this Article shows why these doctrinal pronouncements stand in an uneasy tension. It also explains how this tension revealed itself in Oregon Waste Systems, Inc., v. Department of Environmental Quality of Oregon, when …

Public Discourse In Contemporary Germany, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Politics And The Constitution, Lewis H. Larue

Scholarly Articles

Not available.

Faculty Highlights

Alfred Aman Jr. (1991-2002)

No abstract provided.

Unequal Justice: The Federalization Of Criminal Law, Steven D. Clymer

Cornell Law Faculty Publications

From humble beginnings, federal substantive criminal law has grown to prohibit a wide range of conduct, including much that state criminal laws also proscribe. This expansion, commonly called federalization, has recently attracted substantial academic criticism. Some critics bemoan the federal government's intrusion into matters historically left to the states. Others denounce the burden on the federal judiciary of an increasing criminal caseload. However, there has been far less attention devoted to what may be the most troubling consequence of federalization: the dramatically disparate treatment of similarly situated offenders, depending on whether they are prosecuted in federal or state court. This …

Fidelity To Our Imperfect Constitution, James E. Fleming

Faculty Scholarship

What is the question of fidelity a question about? The topic of our Symposium, "Fidelity in Constitutional Theory," raises two fundamental questions: Fidelity to what? and What is fidelity? The short answer to the first-fidelity to the Constitution-poses a further question: What is the Constitution? For example, does the Fourteenth Amendment embody abstract moral principles or enact relatively concrete historical rules? And does the Constitution presuppose a political theory of majoritarian democracy or one of constitutional democracy? The short answer to the second-being faithful to the Constitution in interpreting it-leads to another question: How should the Constitution be interpreted?' Does …

Land Use Regulation And The Takings Clause: How Much Use Must An Owner Lose Before Being Entitled To Compensation Because The Government Has Taken The Property?, Patrick C. Mcginley

Law Faculty Scholarship

No abstract provided.

Gideon's Trumpet: Mournful And Muffled, Lewis R. Katz

Faculty Publications

The scope of this article is four-fold: (1) a description of the principal methods used to provide legal assistance to persons charged with criminal offenses; (2) a discussion of when legal assistance is constitutionally required and actually needed; (3)

The Commerce Clause Post-Lopez: It's Not Dead Yet, Nicole Huberfeld

Law Faculty Scholarly Articles

This Note focuses on two important pieces of social-policy legislation that could be affected by United States v. Lopez: the Violence against Women Act (VAWA) and the Freedom of Access to Clinic Entrances Act (FACE). Conflicts exist in the lower federal courts regarding the constitutionality of both statutes, which were enacted under the Commerce Clause. This Note seeks to resolve the dispute in favor of upholding both acts. Part I surveys the major cases in the history of the Commerce Clause as they relate to social-policy legislation, up to and including Lopez. Part II discusses the conflicting cases in the …

The Triumph Of Timing: Raines V. Byrd And The Modern Supreme Court's Attempt To Control Constitutional Confrontations, Neal Devins, Michael A. Fitts

Faculty Publications

No abstract provided.