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Articles 1 - 18 of 18

Full-Text Articles in Law

How Presidents Interpret The Constitution, Harold H. Bruff Jan 2016

How Presidents Interpret The Constitution, Harold H. Bruff

Articles

No abstract provided.


Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman Jan 2012

Legal Process In A Box, Or What Class Action Waivers Teach Us About Law-Making, Rhonda Wasserman

Articles

The Supreme Court’s decision in AT&T Mobility v. Concepcion advanced an agenda found in neither the text nor the legislative history of the Federal Arbitration Act. Concepcion provoked a maelstrom of reactions not only from the press and the academy, but also from Congress, federal agencies and lower courts, as they struggled to interpret, apply, reverse, or cabin the Court’s blockbuster decision. These reactions raise a host of provocative questions about the relationships among the branches of government and between the Supreme Court and the lower courts. Among other questions, Concepcion and its aftermath force us to ...


In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks Jan 2011

In Defense Of The Substance-Procedure Dichotomy, Jennifer S. Hendricks

Articles

John Hart Ely famously observed, "We were all brought up on sophisticated talk about the fluidity of the line between substance and procedure," but for most of Erie's history, the Supreme Court has answered the question "Does this state law govern in federal court? " with a "yes" or a "no." Beginning, however, with Gasperini v. Center for Humanities, and continuing with Semtek v. Lockheed Martin and the dissenting opinion in Shady Grove v. Allstate, a shifting coalition of justices has pursued a third path. Instead of declaring state law applicable or inapplicable, they have claimed for themselves the prerogative ...


The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun Jan 2008

The Accounting: Habeas Corpus And Enemy Combatants, Emily Calhoun

Articles

The judiciary should impose a heavy burden of justification on the executive when a habeas petitioner challenges the accuracy of facts on which an enemy combatant designation rests. A heavy burden of justification will ensure that the essential institutional purposes of the writ--and legitimate, separated-powers government--are preserved, even during times of national exigency. The institutional purposes of the writ argue for robust judicial review rather than deference to the executive. Moreover, the procedural flexibility traditionally associated with the writ gives the judiciary the tools to ensure that a heavy burden of justification can be imposed.


Trust Me, I’M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr. Jan 2003

Trust Me, I’M A Judge: Why Binding Judicial Notice Of Jurisdictional Facts Violates The Right To Jury Trial, William M. Carter Jr.

Articles

The conventional model of criminal trials holds that the prosecution is required to prove every element of the offense beyond the jury's reasonable doubt. The American criminal justice system is premised on the right of the accused to have all facts relevant to his guilt or innocence decided by a jury of his peers. The role of the judge is seen as limited to deciding issues of law and facilitating the jury's fact-finding. Despite these principles,judges are reluctant to submit to the jury elements of the offense that the judge perceives to be . routine, uncontroversial or uncontested ...


Towards A Constitutional Architecture For Cooperative Federalism, Philip J. Weiser Jan 2001

Towards A Constitutional Architecture For Cooperative Federalism, Philip J. Weiser

Articles

In this Article, Professor Weiser calls for a new conception of federal-state relations to justify existing political practice under cooperative federalism regulatory programs. In particular, Professor Weiser highlights how Congress favors cooperative federalism programs--that combine federal and state authority in creative ways--and has rejected the dual federalism model of regulation--with separate spheres of state and federal authority that current judicial rhetoric often celebrates. Given the increasing dissonance between prevailing political practice and judicial rhetoric, courts will ultimately have to confront three fault lines for current cooperative federalism programs: the legal source of authority for state agencies to implement federal law ...


Recent Developments, An Appeal By Any Other Name: Congress's Empty Victory Over Habeas Rights--Felker V. Turpin, 116 S. Ct. 2333 (1996), Scott Moss Jan 1997

Recent Developments, An Appeal By Any Other Name: Congress's Empty Victory Over Habeas Rights--Felker V. Turpin, 116 S. Ct. 2333 (1996), Scott Moss

Articles

No abstract provided.


Initiative Enigmas, Richard Collins Jan 1994

Initiative Enigmas, Richard Collins

Articles

No abstract provided.


The Federalist Papers: The Framers Construct An Orrery, Harold H. Bruff Jan 1993

The Federalist Papers: The Framers Construct An Orrery, Harold H. Bruff

Articles

No abstract provided.


Can Buckley Clear Customs?, Harold H. Bruff Jan 1992

Can Buckley Clear Customs?, Harold H. Bruff

Articles

No abstract provided.


Specialized Courts In Administrative Law, Harold H. Bruff Jan 1991

Specialized Courts In Administrative Law, Harold H. Bruff

Articles

No abstract provided.


A Comment On The Rule Of Law Model Of Separation Of Powers, Robert F. Nagel Jan 1989

A Comment On The Rule Of Law Model Of Separation Of Powers, Robert F. Nagel

Articles

No abstract provided.


The Legislative Veto, The Constitution, And The Courts, Robert F. Nagel Jan 1986

The Legislative Veto, The Constitution, And The Courts, Robert F. Nagel

Articles

No abstract provided.


Controlling The Structural Injunction, Robert F. Nagel Jan 1984

Controlling The Structural Injunction, Robert F. Nagel

Articles

No abstract provided.


Log-Rolling And Judicial Review, Michael J. Waggoner Jan 1980

Log-Rolling And Judicial Review, Michael J. Waggoner

Articles

No abstract provided.


Separation Of Powers And The Scope Of Federal Equitable Remedies, Robert F. Nagel Jan 1978

Separation Of Powers And The Scope Of Federal Equitable Remedies, Robert F. Nagel

Articles

No abstract provided.


Congressional Control Of Administrative Regulation: A Study Of Legislative Vetoes, Harold H. Bruff, Ernest Gellhorn Jan 1977

Congressional Control Of Administrative Regulation: A Study Of Legislative Vetoes, Harold H. Bruff, Ernest Gellhorn

Articles

Several administrative programs contain provisions allowing Congress to veto agency rules, and there is now a bill before Congress to extend this veto power to all agency rulemaking. In this Article, Professor Bruff and Dean Gellhorn analyze the histories of five federal programs subject to the legislative veto to determine the effect of the veto on the rulemaking process and on the relationships between the branches of government. Extrapolating from this practical experience, they suggest that a general legislative veto is unlikely to increase the overall efficiency of the administrative process, may impede the achievement of reasoned decisionmaking based on ...


Presidential Exemption From Mandatory Retirement Of Members Of The Independent Regulatory Commissions, Harold H. Bruff Jan 1976

Presidential Exemption From Mandatory Retirement Of Members Of The Independent Regulatory Commissions, Harold H. Bruff

Articles

No abstract provided.