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Articles 2161 - 2190 of 2820
Full-Text Articles in Law
Interpreting Indian Country In State Of Alaska V. Native Village Of Venetie, Kristen A. Carpenter
Interpreting Indian Country In State Of Alaska V. Native Village Of Venetie, Kristen A. Carpenter
Publications
According to federal Indian law's canons of construction, statutes enacted for the benefit of American Indians and Alaska Natives must be liberally interpreted in their favor. But a doctrine of statutory interpretation presently challenges certain applications of the Indian canons. Announced by the Supreme Court in Chevron, U.S.A. v. Natural Resources Defense Council, Inc., the doctrine requires that courts defer to administrative agency interpretations of ambiguous language in statutes they are authorized to administer. In instances where agencies construe statutes against Indian interests, Chevron deference and the Indian canons dictate opposite results for a reviewing court. This conflict muddles Indian …
Privacy And Celebrity: An Essay On The Nationalization Of Intimacy, Robert F. Nagel
Privacy And Celebrity: An Essay On The Nationalization Of Intimacy, Robert F. Nagel
Publications
No abstract provided.
Lilly V. Virginia: A Chance To Reconceptualize The Confrontation Right, Richard D. Friedman
Lilly V. Virginia: A Chance To Reconceptualize The Confrontation Right, Richard D. Friedman
Articles
In Lilly v. Virginia, the Supreme Court once again has the opportunity to grapple with the meaning of the Confrontation Clause of the Sixth Amendmel).t. The basic facts of Lilly are simple, for they present the ageold problem of accomplice confessions. Three men, Gary Barker and Ben and Mark Lilly, went on a crime spree, during which one of them shot to death a young man they had robbed and kidnaped. Ben Lilly was charged with being the triggerman, and Barker testified to that effect at Ben's trial. Mark did not testify. But Mark had made a statement to the …
Confessions, Search And Seizure And The Rehnquist Court, Yale Kamisar
Confessions, Search And Seizure And The Rehnquist Court, Yale Kamisar
Articles
About the time William Rehnquist ascended to the Chief Justiceship of the United States, two events occurred that increased the likelihood that Miranda would enjoy a long life. In Moran v. Burbine,' a 6-3 majority held that a confession preceded by an otherwise valid waiver of a suspect's Miranda rights should not be excluded either (a) because the police misled an inquiring attorney when they told her they were not going to question the suspect she called about or (b) because the police failed to inform the suspect of the attorney's efforts to reach him.
The Boundaries Of Private Property, Michael A. Heller
The Boundaries Of Private Property, Michael A. Heller
Articles
If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …
City Of Boerne V. Flores: Religious Free Exercise Pays A High Price For The Supreme Court's Retaliation On Congress, Elizabeth Trujillo
City Of Boerne V. Flores: Religious Free Exercise Pays A High Price For The Supreme Court's Retaliation On Congress, Elizabeth Trujillo
Faculty Scholarship
The First Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, protects a person's right to the free exercise of religion. This protection, however, fails to provide a framework with which to reconcile the freedom of religious conduct with the need for government to regulate conduct. All three branches of government, as created in the Constitution, create and refine this framework. Traditionally, the judiciary has been the final interpreter of the Constitution and, in this capacity, has defined the powers of the other branches of government. For example, the Supreme Court has interpreted Congress's …
Gay Rights For Gay Whites: Race, Sexual Identity, And Equal Protection Discourse, Darren L. Hutchinson
Gay Rights For Gay Whites: Race, Sexual Identity, And Equal Protection Discourse, Darren L. Hutchinson
Faculty Articles
My argument proceeds in four parts. Part I situates my discussion of the synergistic relationship among race, class, gender, and sexuality within a broader body of research on the "intersectionality'' of systems of oppression and of identity categories. Part I then examines how my scholarship attempts to advance this literature both substantively and conceptually. Part II expounds my claim that the comparative and essentialist treatment of race and sexuality within pro-gay and lesbian theory and politics marginalizes gay, lesbian, bisexual, and transgendered persons of color and constructs and reinforces the notion that the gay and lesbian community is uniformly white …
Taking Decisions Seriously, Richard D. Friedman
Taking Decisions Seriously, Richard D. Friedman
Reviews
The New Deal era is one of the great turning points of American constitutional history. The receptivity of the Supreme Court to regulation by state and federal governments increased dra- matically during that period. The constitutionalism that prevailed before Charles Evans Hughes became Chief Justice in 1930 was similar in most respects to that of the beginning of the twen- tieth century. The constitutionalism that prevailed by the time Hughes’ successor Harlan Fiske Stone died in 1946 is far more related to that of the end of the century. How this transformation occurred is a crucial and enduring issue in …
Attorney-Client Privilege When The Client Is A Public Official: Litigating The Opening Act Of The Impeachment Drama, Timothy K. Armstrong
Attorney-Client Privilege When The Client Is A Public Official: Litigating The Opening Act Of The Impeachment Drama, Timothy K. Armstrong
Faculty Articles and Other Publications
The divided panel decision of the U.S. Court of Appeals for the D.C. Circuit in /n re Lindsey, 158 F.3d 1263 (D.C. Cir.), cert. denied, 119 S. Ct. 466 (1998), represented a dramatic shift in that court's thinking on the question whether the attorney-client privilege protects what a government official says to his agency's counsel in confidence. Although the court of appeals in at least four previous decisions had held that a government agency client holds the same privilege any other client would under like circumstances to communicate with counsel in private, the Lindsey court took a quite different view.
Due Process, Jurisdiction And A Hague Judgments Convention, Ronald A. Brand
Due Process, Jurisdiction And A Hague Judgments Convention, Ronald A. Brand
Articles
Due process is perhaps one of the most misunderstood concepts in the U.S. legal system, especially as it appears to those outside the United States. For lawyers trained in the United States, 'due process' becomes a phrase with special meaning resulting from the study of a number of judicial decisions, especially those of the U.S. Supreme Court. For lay persons, and for lawyers from other countries, discussions of 'due process' may not always provide a clear understanding of what that phrase means in the U.S. legal system. This paper discusses the historical development of the concept of due process in …
The Boundaries Of Private Property, Michael A. Heller
The Boundaries Of Private Property, Michael A. Heller
Faculty Scholarship
If your house and fields are worth more separately, divide them; if you want to leave a ring to your child now and grandchild later, split the ownership in a trust. The American law of property encourages owners to subdivide resources freely. Hidden within the law, however, is a boundary principle that limits the right to subdivide private property into wasteful fragments. While people often create wealth when they break up and recombine property in novel ways, owners may make mistakes, or their self-interest may clash with social welfare. Property law responds with diverse doctrines that prevent and abolish excessive …
The Warren Court And The Concept Of A Right, David Luban
The Warren Court And The Concept Of A Right, David Luban
Georgetown Law Faculty Publications and Other Works
The Warren Court is dead. None of its Justices remain on the benchindeed, only Justice White survives-and the recent history of the Supreme Court has been in large part a history of repudiating controversial Warren Court doctrines. Public opinion likewise repudiates Warren-style judicial activism, and constitutional scholarship-which as recently as the mid- 1980s consisted in considerable measure of theoretical defenses for Warren Court-inspired methods of interpreting the Bill of Rights-has grown increasingly skeptical of expansive interpretive strategies. It is quite possible that future constitutional historians will regard the Warren era as an aberration. The Warren Court, after all, was not …
Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki
Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki
Articles
In this Article, Professor Pritchard and Professor Zywicki examine the role of tradition in constitutional interpretation, a topic that has received significant attention in recent years. After outlining the current debate over the use of tradition, the authors discuss the efficiency purposes of constitutionalism--precommitment and the reduction of agency costs--and demonstrate how the use of tradition in constitutional interpretation can serve these purposes. Rejecting both Justice Scalia's majoritarian model, which focuses on legislative sources of tradition, and Justice Souter's common-law model, which focuses on Supreme Court precedent as a source of tradition, the authors propose an alternative model--the "finding model"-- …
Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro
Confrontation Confronted, Richard D. Friedman, Margaret A. Berger, Steven R. Shapiro
Articles
The following article is an edited version of the amicus curiae brief filed with the Supreme Court of the United States in the October Term, 1998, in the case of Benjamin Lee Lilly v. Commonwealth of Virginia (No. 98-5881). "This case raises important questions about the meaning of the confrontation clause, which has been a vital ingredient of the fair trial right for hundreds of years," Professor Richard Friedman and his co-authors say. "In particular, this case presents the Court with an opportunity to reconsider the relationship between the confrontation clause and the law of hearsay." On June 10 the …
Narrative Relevance, Imagined Juries, And A Supreme Court Inspired Agenda For Jury Research, Richard O. Lempert
Narrative Relevance, Imagined Juries, And A Supreme Court Inspired Agenda For Jury Research, Richard O. Lempert
Articles
This paper has its roots in Old Chief v. United States, a case the Supreme Court of the United States decided in 1997. I will begin by describing this case; then comment on its implications for the Supreme Court's conception of the jury, and conclude by examining the agenda one may draw from it for empirical jury research. Old Chief arose when Johnny Lynn Old Chief was charged not only with assault with a dangerous weapon and using a firearm in the commission of a crime of violence, but also with violating a law that precludes convicted felons from possessing …
Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier
Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier
Articles
Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …
Sincere And Strategic Voting Norms On Multimember Courts, Evan H. Caminker
Sincere And Strategic Voting Norms On Multimember Courts, Evan H. Caminker
Articles
In appellate adjudication, decisions are rendered by a multimember court as a collective entity, not by individual judges. Yet legal scholars have only just begun to explore the formal and informal processes by which individual votes are transformed into a collective judgment.' In particular, they have paid insufficient attention to the ways in which the vote of each individual judge is influenced by the views of her colleagues on a multimember court.
Dna Database Searches And The Legal Consumption Of Scientific Evidence, Peter Donnelly, Richard D. Friedman
Dna Database Searches And The Legal Consumption Of Scientific Evidence, Peter Donnelly, Richard D. Friedman
Articles
DNA evidence has transformed the proof of identity in criminal litigation, but it has also introduced daunting problems of statistical analysis into the process. In this Article, we analyze a problem related to DNA evidence that is likely to be of great and increasing significance in the near future. This is the problem of whether, and how, to present evidence that the suspect has been identified through a DNA database search. In our view, the two well-known reports on DNA evidence issued by the National Research Council ("NRC"), each of which has carried great authority with the American courts on …
The Constitutionality Of Taxing Compensatory Damages For Mental Distress When There Was No Accompanying Physical Injury, Douglas A. Kahn
The Constitutionality Of Taxing Compensatory Damages For Mental Distress When There Was No Accompanying Physical Injury, Douglas A. Kahn
Articles
Since 1919, statutory tax law has excluded from gross income compensatory damages received on account of a personal injury or sickness.1 The current version of that exclusion is set forth in section 104 (a) (2) of the Internal Revenue Code of 1986.2 The construction of that exclusion, both by the courts and by the Commissioner, underwent significant alterations over the 80-year period that the provision has existed.3 The statute itself was amended several times, most recently in 1996.4 It is the 1996 amendment that has raised a constitutional issue concerning the validity of a portion of the statute.5
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Articles
Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Faculty Scholarship
Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …
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.
Section 1: Chicago V. Morales, Institute Of Bill Of Rights Law, William & Mary Law School
Section 1: Chicago V. Morales, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 2: The Direction Of The Court, Institute Of Bill Of Rights Law, William & Mary Law School
Section 2: The Direction Of The Court, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 4: Criminal Law And Procedure, Institute Of Bill Of Rights Law, William & Mary Law School
Section 4: Criminal Law And Procedure, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 8: Also This Term, Institute Of Bill Of Rights Law, William & Mary Law School
Section 8: Also This Term, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 5: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School
Section 5: Civil Rights, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 6: The Court And The Public, Institute Of Bill Of Rights Law, William & Mary Law School
Section 6: The Court And The Public, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 3: Business, Commerce, And Property, Institute Of Bill Of Rights Law, William & Mary Law School
Section 3: Business, Commerce, And Property, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Section 9: Justice Powell, Institute Of Bill Of Rights Law, William & Mary Law School
Section 9: Justice Powell, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.