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Articles 1 - 30 of 149
Full-Text Articles in Law
Original Intent: Does The Double Jeopardy Clause Apply To Incarceration?, Bruce Ledewitz
Original Intent: Does The Double Jeopardy Clause Apply To Incarceration?, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
The Qualitative Dimension Of Fourth Amendment "Reasonableness", Sherry F. Colb
The Qualitative Dimension Of Fourth Amendment "Reasonableness", Sherry F. Colb
Cornell Law Faculty Publications
Supreme Court doctrine protects two seemingly distinct kinds of interests under the heading of privacy rights: one "substantive," the other "procedural." The Fourth Amendment guarantee against "unreasonable searches and seizures" has been generally interpreted to protect procedural privacy. Searches are typically defined as governmental inspections of activities and locations in which an individual has a reasonable expectation of privacy from observation. In the typical case, this reasonable expectation of privacy may be breached only where the government has acquired a quantitatively substantial objective basis for believing that the search would uncover evidence of a crime. Substantive privacy rights have not …
Why Basic Liberties Are Bilateral, James W. Nickel
Formalism And State Sovereignty In Printz V. United States: Cooperation By Consent, Andrew S. Gold
Formalism And State Sovereignty In Printz V. United States: Cooperation By Consent, Andrew S. Gold
Faculty Scholarship
No abstract provided.
A Loss Of Control: Privilege Cases Diminish Presidential Power, Neal Devins
A Loss Of Control: Privilege Cases Diminish Presidential Power, Neal Devins
Popular Media
No abstract provided.
Undoing The New Deal Through The New Presidentialism, Cynthia R. Farina
Undoing The New Deal Through The New Presidentialism, Cynthia R. Farina
Cornell Law Faculty Publications
The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck
The Establishment Clause As A Structural Restraint On Governmental Power, Carl H. Esbeck
Faculty Publications
This Article inquires into whether the singular purpose of the Establishment Clause is to secure individual rights, as is conventionally believed, or whether its role is more properly understood as a structural restraint on governmental power. If the Clause is indeed structural in nature, then its task is to negate from the purview of civil governance all matters "respecting an establishment of religion." Conceptualizing the role of the Establishment Clause as either rights-securing or structural has profound consequences for the nation's constitutional settlement concerning the interrelationship of government and religion.
The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf
The Relevance Of Federal Norms For State Separation Of Powers, Michael C. Dorf
Cornell Law Faculty Publications
No abstract provided.
Separation Of Powers In State Constitutional Law - Introduction, Carl T. Bogus
Separation Of Powers In State Constitutional Law - Introduction, Carl T. Bogus
Law Faculty Scholarship
No abstract provided.
Challenging Defamatory Opinions As An Alternative To Media Self-Regulation, James F. Ponsoldt
Challenging Defamatory Opinions As An Alternative To Media Self-Regulation, James F. Ponsoldt
Scholarly Works
This Essay analyzes defamation law as it applies to the media. Part I summarizes the state of defamation law prior to the 1990 Supreme Court decision in Milkovich v. Lorain Journal Co., when opinion was presumed immune from liability. Part II examines the holding in Milkovich, which suggests the potential liability for recklessly defamatory statements couched as or in the context of opinion. Part III reviews post-Milkovich decisions during the 1990's. This Essay concludes that the predictions of Milkovich were accurate in many jurisdictions and could apply to televised allegations during the coverage of the Clinton affair. …
We The Unconventional American People, James E. Fleming
We The Unconventional American People, James E. Fleming
Faculty Scholarship
In his 1991 volume, We the People: Foundations, Bruce Ackerman urged us as Americans to declare our independence from European models of government and to “look inward” to rediscover our distinctive constitutional scheme--dualist democracy.1 In his new volume, We the People: Transformations, he exhorts us as dualist democrats to break up the monopoly that Article V of the Constitution has held on our vision of constitutional amendment. He urges us to move “beyond Article V” and to embrace a pluralist understanding of the sources of higher lawmaking (pp 15-17). Only by doing so, he argues, will we be able …
Lie Detection: The Supreme Court's Polygraph Decision, Bennett L. Gershman
Lie Detection: The Supreme Court's Polygraph Decision, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
In United States v. Scheffer, decided this past Term, the Supreme Court considered for the first time the admissibility of polygraph evidence. The Court held that exclusion of such evidence on behalf of a criminal defendant was supported by valid justifications and offended no constitutional right to present a defense.
Constitutional Remedies, Section 1983 And The Common Law, Michael L. Wells
Constitutional Remedies, Section 1983 And The Common Law, Michael L. Wells
Scholarly Works
Constitutional tort law marries the substantive rights granted by the Constitution to the remedial mechanism of tort law. The sweeping language of 42 U.S.C. 1983 provides that "[e]very person who, under color of any [state law] subjects, or causes to be subjected, any [person] to the deprivation of any [constitutional rights] shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Constitutional tort suits raise, in a new context, many tort-like remedial questions relating to causation, immunity, and damages--and therein lies a problem. The usual source of answers to …
Imperfect Death Penalty Not Acceptable, Bruce Ledewitz
Imperfect Death Penalty Not Acceptable, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
God And Man In The Yale Dormitories, Michael C. Dorf
God And Man In The Yale Dormitories, Michael C. Dorf
Cornell Law Faculty Publications
No abstract provided.
Equal Educational Opportunity And Constitutional Theory: Preliminary Thoughts On The Role Of School Choice And The Autonomy Principle, Michael Heise
Equal Educational Opportunity And Constitutional Theory: Preliminary Thoughts On The Role Of School Choice And The Autonomy Principle, Michael Heise
Cornell Law Faculty Publications
Inadequate schools impede America's long-standing quest for greater equal educational opportunity. The equal educational opportunity doctrine, traditionally moored in terms of race, has expanded to include notions of educational adequacy. Educational adequacy is frequently construed in terms of educational spending and framed in terms largely incident to constitutional litigation.
This paper explores the potential intersections of the school choice and school finance movements, particularly as they relate to litigation and policy. The paper argues that school choice policies constitute a viable remedy for successful school finance litigation and form a remedy that simultaneously advances individual autonomy, one critical constitutional principle.
Tribute To Professor Richard B. Tyler, William B. Fisch
Tribute To Professor Richard B. Tyler, William B. Fisch
Faculty Publications
Tribute to Professor Richard B. Tyler
The Ex Post Facto Clause And The Jurisprudence Of Punishment, Wayne A. Logan
The Ex Post Facto Clause And The Jurisprudence Of Punishment, Wayne A. Logan
Scholarly Publications
No abstract provided.
Remedies For The Misappropriation Of Intellectual Property By State And Municipal Governments Before And After Seminole Tribe: The Eleventh Amendment And Immunity Doctrines, Paul J. Heald, Michael L. Wells
Remedies For The Misappropriation Of Intellectual Property By State And Municipal Governments Before And After Seminole Tribe: The Eleventh Amendment And Immunity Doctrines, Paul J. Heald, Michael L. Wells
Scholarly Works
Part I of this Article addresses relief available to intellectual property owners under the Takings Clause of the Fifth Amendment. Before Congress's express abrogation of state sovereign immunity in 1992, federal, state, and local governments were nonetheless potentially liable for misappropriations of intellectual property that constituted takings without just compensation. This examination of the Supreme Court's Fifth Amendment jurisprudence is also key to answering the critical question of whether federal patent, copyright, and trademark laws establish rights in “property” for the purposes of the Fourteenth Amendment, for only under section 5 of the Fourteenth Amendment may Congress abrogate a state's …
Constitutionalizing Kwik-E-Mart, Bruce Ledewitz
Constitutionalizing Kwik-E-Mart, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
Religious Freedom As If Religion Matters: A Tribute To Justice Brennan, Stephen L. Carter
Religious Freedom As If Religion Matters: A Tribute To Justice Brennan, Stephen L. Carter
Philip A. Hart Memorial Lecture
On April 22, 1998, Professor of Law, Stephen L. Carter of Yale Law School, delivered the Georgetown Law Center’s eighteenth Annual Philip A. Hart Memorial Lecture: "Religion-Centered Free Exercise: A Tribute to Justice Brennan."
Stephen L. Carter is the William Nelson Cromwell Professor of Law at Yale, where he has taught since 1982. Among his courses are law and religion, the ethics of war, contracts, evidence, and professional responsibility. His most recent book is The Violence of Peace: America’s Wars in the Age of Obama (2011). Among his other books on law and politics are God’s Name in Vain: The …
Private Bar Monitors Public Defense - Oversight Committee Sets Standards For Indigent Defense Providers, Adele Bernhard
Private Bar Monitors Public Defense - Oversight Committee Sets Standards For Indigent Defense Providers, Adele Bernhard
Articles & Chapters
The oversight committee drafted standards and guidelines with the primary goal of creating a yardstick for defense services organizations against which to measure performance and the hope that a practical set of standards serve multiple purposes, including: educating a skeptical public about what it takes to provide quality defense services; promoting an understanding of why adequate funding is necessary (to engender public support for more spending); and providing notice to the organizations themselves of what is expected of a publicly funded defense office.
Ducking Dred Scott: A Response To Alexander And Schauer, Emily Sherwin
Ducking Dred Scott: A Response To Alexander And Schauer, Emily Sherwin
Cornell Law Faculty Publications
No abstract provided.
Notes On Notes, Margaret G. Stewart
A Constitution Of Democratic Experimentalism, Michael C. Dorf, Charles F. Sabel
A Constitution Of Democratic Experimentalism, Michael C. Dorf, Charles F. Sabel
Cornell Law Faculty Publications
In this Article, Professors Dorf and Sabel identify a new form of government, democratic experimentalism, in which power is decentralized to enable citizens and other actors to utilize their local knowledge to fit solutions to their individual circumstances, but in which regional and national coordinating bodies require actors to share their knowledge with others facing similar problems. This information pooling, informed by the example of novel kinds of coordination within and among private firms, both increases the efficiency of public administration by encouraging mutual learning among its parts and heightens its accountability through participation of citizens in the decisions that …
The Supreme Court As An Enforcement Agency, Harold J. Krent
The Supreme Court As An Enforcement Agency, Harold J. Krent
All Faculty Scholarship
No abstract provided.
The Free Exercise Of Religion After The Fall: The Case For Intermediate Scrutiny, Rodney A. Smolla
The Free Exercise Of Religion After The Fall: The Case For Intermediate Scrutiny, Rodney A. Smolla
Scholarly Articles
Not available.
Congress, The Court, And The Constitution: Hearing Before The Subcommittee On The Constitution Of The Committee On The Judiciary, House Of Representatives, One Hundred Fifth Congress, Second Session, Charles T. Canady, Robert C. Scott, Louis Fisher, David P. Currie, Neal Devins, Neil Kinkopf, Nadine Strossen, Matthew J. Franck, Robert L. Clinton, Henry J. Hyde, Melvin L. Watt
Congress, The Court, And The Constitution: Hearing Before The Subcommittee On The Constitution Of The Committee On The Judiciary, House Of Representatives, One Hundred Fifth Congress, Second Session, Charles T. Canady, Robert C. Scott, Louis Fisher, David P. Currie, Neal Devins, Neil Kinkopf, Nadine Strossen, Matthew J. Franck, Robert L. Clinton, Henry J. Hyde, Melvin L. Watt
Congressional Testimony
No abstract provided.
Judicial Exclusivity And Political Instability, Neal Devins, Louis Fisher
Judicial Exclusivity And Political Instability, Neal Devins, Louis Fisher
Faculty Publications
No abstract provided.
Institutional Analysis And Physicians' Rights After Vacco V. Quill, Larry I. Palmer
Institutional Analysis And Physicians' Rights After Vacco V. Quill, Larry I. Palmer
Faculty Publications
No abstract provided.