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Constitutional Law

2002

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Articles 1 - 30 of 204

Full-Text Articles in Law

The Anti-Monopoly Origins Of The Patent And Copyright Clause, Tyler T. Ochoa, Mark Rose Dec 2002

The Anti-Monopoly Origins Of The Patent And Copyright Clause, Tyler T. Ochoa, Mark Rose

Faculty Publications

The British experience with patents and copyrights prior to 1787 is instructive as to the context within which the Framers drafted the Patent and Copyright Clause. The 1624 Statute of Monopolies, intended to curb royal abuse of monopoly privileges, restricted patents for new inventions to a specified term of years. The Stationers' Company, a Crown-chartered guild of London booksellers, continued to hold a monopoly on publishing, and to enforce censorship laws, until 1695. During this time, individual titles were treated as perpetual properties held by booksellers. In 1710, however, the Statute of Anne broke up these monopolies by imposing strict …


The First 'Establishment' Clause: Article Vii And The Post-Constitutional Confederation, Gary S. Lawson, Guy I. Seidman Dec 2002

The First 'Establishment' Clause: Article Vii And The Post-Constitutional Confederation, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

It is a great pleasure for academics to realize that fellow scholars sometimes read their work and take it seriously. We are genuinely flattered that Vasan Kesavan has chosen to comment on our article, When Did the Constitution Become Law?,1 and has done so with the intellectual rigor and generosity of spirit that characterizes his prodigious scholarship. 2 We are grateful to Mr. Kesavan for engaging us and grateful to the Notre Dame Law Review for accommodating the dialogue.


Are Police Free To Disregard Miranda?, Steven D. Clymer Dec 2002

Are Police Free To Disregard Miranda?, Steven D. Clymer

Cornell Law Faculty Publications



Constitutional Dignity And The Criminal Law, James E. Baker Nov 2002

Constitutional Dignity And The Criminal Law, James E. Baker

Georgetown Law Faculty Publications and Other Works

Criminal law is important because it helps to define who we are as a constitutional democracy. There is much that distinguishes our form of government from others, but certainly much of that distinction is found in the Bill of Rights and in two simple words: due process. All of which help to affirm the value and sanctity of the individual in our society. Broadly then, criminal law helps to define who we are as a nation that values both order and liberty.

That is what many of the greatest judicial debates are about, like those involving Holmes, Hand, Jackson, and …


An Institutional Approach To Legal Indeterminacy, Michael C. Dorf Nov 2002

An Institutional Approach To Legal Indeterminacy, Michael C. Dorf

Cornell Law Faculty Working Papers

For over a generation, academic jurisprudence and constitutional theory have attempted to reconcile, on the one hand, the rule of law and the Constitution's fundamentality with, on the other hand, the fact that legal and constitutional rules frequently do not produce determinate answers to concrete controversies. The approach of radical democrats who would abandon judicial review is unacceptable to all those who believe that some judicially enforceable limits on politics are needed to prevent majoritarian tyranny. At the same time, however, constitutional theories that attempt to justify judicial review have limited utility; at best they strike a compromise between the …


The War On Terrorism And The Constitution, Michael I. Meyerson Nov 2002

The War On Terrorism And The Constitution, Michael I. Meyerson

All Faculty Scholarship

Discussion of civil liberties during wartime often omit the fact that there can be no meaningful liberty at all if our homes and offices are bombed or our loved ones are killed or injured by acts of terror. The Government must be given the tools necessary to accomplish its vital mission. The first priority must be to win the war against terrorism. There are, however, other priorities. The United States, in its just battle for freedom, must ensure that freedom is preserved during that battle as well. Moreover, care must be taken so that an exaggerated cry of “emergency” is …


“Exceedingly Vexed And Difficult”: Games And The First Amendment, Michael T. Morley Nov 2002

“Exceedingly Vexed And Difficult”: Games And The First Amendment, Michael T. Morley

Scholarly Publications

No abstract provided.


Copyright Preemption And The Right Of Publicity, Jennifer E. Rothman Nov 2002

Copyright Preemption And The Right Of Publicity, Jennifer E. Rothman

All Faculty Scholarship

This article addresses the conflict between an ever-expanding right of publicity and the federally guaranteed rights provided by copyright law. This conflict is highlighted in the Wendt v. Host International case in which the actors George Wendt and John Ratzenberger from Cheers used the right of publicity to prevent the show's creators from licensing the use of the Norm and Cliff characters in the decor of a chain of airport bars. Even though the licensing of the characters was explicitly allowed under copyright law, the Ninth Circuit held that the right of publicity prevented the creators from doing so. Similarly, …


Winking At Jubelirer’S Maneuvers, Bruce Ledewitz Oct 2002

Winking At Jubelirer’S Maneuvers, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals


Equal Educational Opportunity By The Numbers: The Warren Court's Empirical Legacy, Michael Heise Oct 2002

Equal Educational Opportunity By The Numbers: The Warren Court's Empirical Legacy, Michael Heise

Cornell Law Faculty Publications

By drawing upon empirical social science evidence to inform a core tenet of the Court's understanding of equal education the Warren Court established one of its enduring - if under-appreciated - legacies: The increased empiricization of the equal educational opportunity doctrine. All three major subsequent legal efforts to restructure public schools and equalize educational opportunities among students - post-Brown school desegregation, finance, and choice litigation - evidence an increasingly empiricized equal educational opportunity doctrine. If my central claim is correct, it becomes important to consider the consequences of this development. I consider two in this Article and find both benefits …


Hate Speech In The Constitutional Law Of The United States, William B. Fisch Oct 2002

Hate Speech In The Constitutional Law Of The United States, William B. Fisch

Faculty Publications

Our general reporter, Professor Pizzorusso, has given us “incitement to hatred” - primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like--as the working definition of “hate speech”, and asks to what extent such speech is constitutionally protected in the reporting countries. The United States of America are known at least in recent times for providing exceptionally broad protection for otherwise objectionable speech and expression, and hate speech is understood to be one of the areas in which they have positioned themselves further out on the speech-protective end of …


Campaign Finance Disclosure And Section 527 Of The Code: A Look At The District Court's Opinion In National Federation Of Republican Assemblies, Donald B. Tobin Oct 2002

Campaign Finance Disclosure And Section 527 Of The Code: A Look At The District Court's Opinion In National Federation Of Republican Assemblies, Donald B. Tobin

Faculty Scholarship

This report examines the decision of the U.S. District Court for the Southern District of Alabama in National Federation of Republican Assemblies v. United States, which dealt with section 527 political organizations.


Race And The Development Of Law In America: Introduction To The Symposium, Robert A. Sedler Oct 2002

Race And The Development Of Law In America: Introduction To The Symposium, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.


The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley Oct 2002

The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley

Scholarly Publications

No abstract provided.


Misclassifying Monetary Restitution, Colleen P. Murphy Oct 2002

Misclassifying Monetary Restitution, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.


The Federalism-Rights Nexus: Explaining Why Senate Democrats Tolerate Rehnquist Court Decision Making But Not The Rehnquist Court, Neal Devins Oct 2002

The Federalism-Rights Nexus: Explaining Why Senate Democrats Tolerate Rehnquist Court Decision Making But Not The Rehnquist Court, Neal Devins

Faculty Publications

No abstract provided.


A Fourth Amendment "Search" In The Age Of Technology: Postmodern Perspectives, Kathryn R. Urbonya Oct 2002

A Fourth Amendment "Search" In The Age Of Technology: Postmodern Perspectives, Kathryn R. Urbonya

Faculty Publications

No abstract provided.


What Is A Search? Two Conceptual Flaws In Fourth Amendment Doctine And Some Hints Of A Remedy, Sherry F. Colb Oct 2002

What Is A Search? Two Conceptual Flaws In Fourth Amendment Doctine And Some Hints Of A Remedy, Sherry F. Colb

Cornell Law Faculty Publications

No abstract provided.


To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne Oct 2002

To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne

Faculty Publications

No abstract provided.


Federal Judicial Selection As War, Part Three: The Role Of Ideology, Michael J. Gerhardt Oct 2002

Federal Judicial Selection As War, Part Three: The Role Of Ideology, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Rehnquist's Vietnam: Constitutional Separatism And The Stealth Advance Of Martial Law, Diane H. Mazur Oct 2002

Rehnquist's Vietnam: Constitutional Separatism And The Stealth Advance Of Martial Law, Diane H. Mazur

UF Law Faculty Publications

This Article argues that judicial deference to the military, at least as the principle is understood in contemporary decisions of the Court, is surprisingly recent and not at all constitutionally established. In fact, this deference departs from constitutional text and from a line of Supreme Court precedent concerning civilian-military relations extending back before the Civil War. Broad judicial deference to military discretion is only a creation of the post-Vietnam, all-volunteer military and, more specifically, only a creation of one single Justice of the Supreme Court, William H. Rehnquist.

In Greer v. Spock, First Amendment values were displaced narrowly in the …


Choice Programs And Market-Based Separationism, Paul E. Salamanca Oct 2002

Choice Programs And Market-Based Separationism, Paul E. Salamanca

Law Faculty Scholarly Articles

The Supreme Court's recent decision in Zelman v. Simmons-Harris appears to clear the way for a wide variety of educational and charitable choice plans. In this decision, the Court upheld against Establishment Cause Challenge a formally neutral school choice program that encompassed a wide variety of options in the public and private sector, including private sectarian schools. The Court reasoned that, when the government makes aid available to a broad class of recipients without regard to their religious or non-religious affiliation, and when the recipients have a genuine choice as to whether to obtain that aid from a religious or …


Section 7: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School Sep 2002

Section 7: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.


Equal Protection Incorporation, Michael C. Dorf Sep 2002

Equal Protection Incorporation, Michael C. Dorf

Cornell Law Faculty Publications

In order to preserve a broad field of play for legislative and administrative action, courts do not subject most state action to exacting scrutiny under the Equal Protection Clause. For half a century, the principal exception has consisted of so-called suspect and semi-suspect classifications. Although the Supreme Court has articulated criteria for identifying such classifications, standing alone, none of these criteria is satisfactory, nor has the Court found any principled means of combining them. This Article proposes a judicial reading of the Equal Protection Clause, "equal protection incorporation", that roots the process of identifying suspect and semi-suspect classifications in constitutional …


Pay Equity: A Fundamental Human Right, Margot Young Sep 2002

Pay Equity: A Fundamental Human Right, Margot Young

All Faculty Publications

This paper undertakes the limited task of determining what interpretive consequences, if any, might flow from the removal of federal pay equity provisions from their current location in the Canadian Human Rights Act and placement of such provisions in their own stand-alone legislation. Part of the interpretive stance courts currently bring to their consideration of the federal pay equity provisions reflects the placement of these provisions within federal human rights legislation. Courts have held that human rights legislation has a special nature or quasi-constitutional status. This status results from the fundamental character of the values the legislation expresses and the …


The Rehnquist Court, Structural Due Process, And Semisubstantive Constitutional Review, Dan T. Coenen Sep 2002

The Rehnquist Court, Structural Due Process, And Semisubstantive Constitutional Review, Dan T. Coenen

Scholarly Works

Semisubstantive review, as I use that label, entails four key features. First, the subject matter of judicial inquiry is not the process applied in adjudicating a discrete dispute; rather, the matter at hand is the constitutionality of a statute or other generalized expression of legal policy. Second, some procedural omission by the lawmaker -- rather than an incurably substantive flaw in the end product of its work -- lays the groundwork for a judicial intervention that invalidates the challenged rule or negates how that rule otherwise would operate. It may be, for example, that a federal statute read as a …


School Vouchers And The Constitution - Permissible, Impermissible, Or Required?, Gary J. Simson Jul 2002

School Vouchers And The Constitution - Permissible, Impermissible, Or Required?, Gary J. Simson

Cornell Law Faculty Publications

No abstract provided.


Street Legal: The Court Affords Police Constitutional Carte Blanche To Arrest, Wayne A. Logan Jul 2002

Street Legal: The Court Affords Police Constitutional Carte Blanche To Arrest, Wayne A. Logan

Scholarly Publications

This article discusses the Supreme Court's landmark 2001 decision Atwater v. City of Lago Vista, upholding the authority of police to execute warrantless arrests for menial offenses (there, failure to wear a seatbelt) so long as police have probable cause to support such arrests.


The Constitutional Duty Of A National Security Lawyer In A Time Of Terror, James E. Baker Jul 2002

The Constitutional Duty Of A National Security Lawyer In A Time Of Terror, James E. Baker

Georgetown Law Faculty Publications and Other Works

National security lawyers are probably not in the forefront of the public’s mind when one refers to government lawyers, but they serve a vital mission within the public sector. This article explores the duties and responsibilities inherent in that mission, and discusses the continuing role of the national security lawyer after the terrorist attacks of September 11th, 2001.


Marbury Ascendant: The Rehnquist Court And The Power To "Say What The Law Is", Timothy Zick Jul 2002

Marbury Ascendant: The Rehnquist Court And The Power To "Say What The Law Is", Timothy Zick

Faculty Publications

No abstract provided.