Law Commons^™

The Power Of Congress "Without Limitation": The Property Clause And Federal Regulation Of Private Property, Peter A. Appel

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Congress has overlooked a powerful tool for regulating within state jurisdictions: the Property Clause of the United States Constitution. The United States Government owns land in every state and approximately thirty percent of the total land in the United States. The federal government's authority to regulate its property within states derives from the Property Clause and has been described by the Supreme Court as "without limitation."

Professor Appel traces the historical development of the Constitution's Property Clause, from its pre-constitutional origins through modern Supreme Court decisions and academic conceptions. Professor Appel compares the narrow view of Property Clause scholarship - …

Inclusive Boundaries And Other (Im)Possible Paths Toward Community Development In A Global World, Fran Ansley

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This paper is based on a talk given at a University of Pennsylvania symposium on Social Movements and Law Reform. In it Professor Ansley takes as a case study the U.S. movement against plant closings. In the seventies, eighties and nineties this movement attempted to respond to the increasing flow of industrial capital from the U.S. to other countries. Like other social movements, it devoted a significant part of its energy to "framing" its issues - articulating and attempting to promote a particular way of looking at the issue of plant closings, de-industrialization, and the new international division of labor. …

Race To The Stars: A Federalism Argument For Leaving The Right Of Publicity In The Hands Of The States, Usha Rodrigues

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This Note will argue that, given the variation in the right of publicity from state to state, and the relative newness of this property right, Congress should refrain from passing a law to federalize it. Although there are sound arguments for adopting this right, there are also reasons to hesitate. Given that only half of the states have adopted it, federalization seems premature. This Note will only obliquely address the main objection usually leveled at a robust right of publicity, namely that it stifles creativity and implicates First Amendment concerns. The focus instead will be on the right of individual …

Don't Cheat; Escheat - What Every Business Lawyer Ought To Know About Tennessee's Abandoned Property Laws, Joan Macleod Heminway

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No abstract provided.

Revisiting The Taxation Of Punitive Damages, Gregg D. Polsky, Dan Markel

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In our recent article, Taxing Punitive Damages, available at http://ssrn.com/abstract=1421879, we argued (1) that plaintiffs in punitive damages cases should be allowed to introduce to the jury evidence regarding the deductibility of those damages by defendants, and (2) that this jury tax-awareness approach is better than the Obama Administration’s suggested alternative of disallowing those deductions.

To our delight, Professor Larry Zelenak and Paul Mogin have each provided published comments to our piece on Virginia Law Review's In Brief companion website. Professor Zelenak’s thoughtful response focuses on our prescriptive claim that jury tax-awareness is better than nondeductibility, while Mr. Mogin disputes …

Were There Adequate State Grounds In Bush V. Gore?, Michael L. Wells

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Few Supreme Court decisions provoke the immediate and intensely negative verdict that law professors passed on Bush v. Gore. Some of the criticism is deserved. Others have questioned whether the ruling rests on any general principle at all, given the care the Court took to limit its reasoning to the extraordinary circumstances of the Florida presidential election.

It is all too easy to leap from this well-founded critique of the Court's reasoning to the conclusion that the majority – all of whom were appointed by Republican presidents – were bent on installing George W. Bush in the White House by …

Errors And Ethics: Dilemmas In Death, Penny White

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No abstract provided.

The Disconnect Between At-Will Employment And Tortious Interference With Business Relations: Rethinking Tortious Interference Claims In The Employment Context, Alex B. Long

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No abstract provided.

Environmental Regulation Of Nanotechnology: Some Preliminary Observations, Glenn Harlan Reynolds

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No abstract provided.

Restitching The American Quilt: Untangling Marriage From The Nuclear Family, Lisa Milot

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Part I of this Note will trace the various threads of American marriage law, particularly the perception that marriage is unraveling today due to an unprecedented divorce crisis. Part II will disentangle the conflicting patterns of contract law and status regimes that variously govern marriage, focusing on the uneven enforcement of antenuptial contracts and the implications of such. Part III will argue that the true focus of regulation is the status of the nuclear family, not of marriage per se. Finally, Part IV will propose a bifurcation of the legal regimes governing marriage and the family, recognizing the ability of …

Structural Review, Pseudo-Second-Look Decision Making, And The Risk Of Diluting Constitutional Liberty, Dan T. Coenen

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In this Essay, I will pause to note some reasons why the "sham decision" critique of structural review is, for me, unpersuasive. I also will offer a few comments on the proper relationship between structural and substantive review. I note, in particular, that an endorsement of "activist" structural review need not lead to a "nonactivist" approach to substantive review, far less to its total abandonment. I also suggest that a vigorous embrace of structural rules may well lead to more, rather than less, overall judicial protection of fundamental rights.

A Constitution Of Collaboration: Protecting Fundamental Values With Second-Look Rules Of Interbranch Dialogue, Dan T. Coenen

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Often the Supreme Court directly engages nonjudicial officials in a shared elaboration of constitutional rights. It does so through the use of doctrines that focus on whether nonjudicial actors have taken an appropriately close and sensitive look at policy judgments that threaten important constitutional values. In many of these cases, the Court in effect "remands" constitutionally controversial programs to the political branches--inviting a more studied consideration of the program than attended its initial adoption, and leaving open the possibility that the readopted program will be upheld against constitutional attack.

The Court's structural doctrines range from the familiar vagueness rule to …

Foreword: Symposium Re-Examining First Principles: Deterrence And Corrective Justice In Constitutional Torts, Thomas A. Eaton

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This Symposium provides a forum for a careful and thoughtful consideration of whether constitutional tort law can deter wrongdoing and is consistent with principles of corrective justice.

Corrective Justice And Constitutional Torts, Bernard P. Dauenhauer, Michael L. Wells

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Tort liability in the private realm may be understood as "an instrument aimed...at deterrence...[and] a way of achieving corrective justice between the parties." Following the common law model, the Supreme Court has borrowed this normative framework for constitutional torts, ruling that the aims of liability for damages are to vindicate constitutional rights and to deter constitutional violations. A recent article by Daryl Levinson takes issue with this approach. Levinson argues that the superficial similarities between public torts and private torts conceal real differences, to which neither the Court nor scholars have paid adequate attention. The main point of his article, …

Section 1983, The First Amendment, And Public Employee Speech: Shaping The Right To Fit The Remedy (And Vice Versa), Michael Wells

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This Article is not about theories of free speech and how they bear on the public employment context, nor does it contribute to the academic debate over what the aims of public employee speech law ought to be. I take the Court at its word when it says that its aim is to give substantial weight to both the value of speech and the government's interest as an employer. Unlike Massaro and Ingber, I take it as a given that the government may insist on hierarchy and obedience to authority in the workplace. Unlike Rosenthal, I begin from the Court's …

Capital Punishment: Corporate Criminal Liability For Gross Violations Of Human Rights, Diane Marie Amann

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These remarks were presented on February 24, 2001, in a panel concluding a conference entitled "Holding Multinational Corporations Responsible Under International Law" at Hastings College of the Law, San Francisco, California.

Whose Motive Matters? Discrimination In Multi-Actor Employment Decision Making, Rebecca H. White, Linda Hamilton Krieger

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The search for a discriminatory motive in disparate treatment cases often is envisioned as an attempt to determine whether a supervisor, despite his denials, consciously acted out of bias, animus or on the basis of “inaccurate and stigmatizing stereotypes” in making an employment decision. Framing the search for discriminatory motive is this way, however, cannot prove fully effective in eliminating discrimination, as individuals may be unaware of their own biases or the influences those biases have had on their own decision making.

The reality of decision making in the employment area, moreover, is that multiple individuals are often involved in …

Eldred V. Reno: An Example Of The Law Of Unintended Consequences, L. Ray Patterson

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In Eldred v. Reno the U.S. Court of Appeals for the D.C. Circuit held that the Copyright Term Extension Act (CTEA), which extends the copyright term for present and future works for twenty years, was a constitutional exercise of Congress's copyright power. The CTEA thus puts an end (at least for two decades) to a policy in effect for more than two centuries, since the Copyright Act of 1790, that the copyright of a work expires at the end of a stated term defined at the time the copyright was granted. Since works were copyrighted annually, the policy meant that …

The Limited Security Interest In Non-Assignable Collateral Under Revised Article 9, Thomas E. Plank

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No abstract provided.

Guns, Privacy, And Revolution, Glenn Harlan Reynolds

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No abstract provided.

Good Faith: Balancing The Right To Manage With The Right To Represent, Suzanne Darrow-Kleinhaus

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No abstract provided.

When Can A Nonrecourse Lender Reach The Personal Assets Of Its Borrower, Gregory M. Stein

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No abstract provided.

Campaign Of Sabotage: Big Government's War Against Public Transportation, Michael Lewyn

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Historically, American politicians have been far more generous to highways than to public transit. The political elite's failure to support public transit is based on the view that despite decades of state and federal support, transit ridership has dwindled. This article criticizes that theory, by explaining that far from promoting public transit, government at all levels has sabotaged transit in a variety of ways: by building highways to suburbs unserved by public transit, by loading down transit systems with unfunded mandates, by using housing, education and tax policy to encourage migration to those suburbs, and by using zoning policy to …

The Privatization Of The Civil Commitment Process And The State Action Doctrine: Have The Mentally Ill Been Systematically Stripped Of Their Fourteenth Amendment Rights?, William Brooks

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No abstract provided.

Palazzolo V. Rhode Island: The Supreme Court's Expansion Of Subsequent Owners' Rights Under The Takings Clause (Symposium: The Thirteenth Annual Supreme Court Review), Leon D. Lazer

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No abstract provided.

Unenumerated Rights Under The U.S. Constitution, Thomas B. Mcaffee

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The symbol of modern constitutional law, for good or ill, is Roe v. Wade, the Supreme Court’s abortion decision. From the beginning, the big question has been, where in the text of the Constitution do were find this “right of privacy” that secures the right to choose abortion? Some scholars have argued that such a right could not be found in the text or structure of the Constitution. One powerful counter stems from a textual approach to giving effect to the Constitution. In this article, the author argues that, if we look carefully enough at the text and history, …

Book Review, David S. Tanenhaus

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This ambitious book impressively chronicles forms of imprisonment in American history from Columbus’s crossing in 1492, with at least four convicts among his crew, to the rise of five hundred years later of a “prison-industrial complex,” which employs over half a million people and incarcerates more than one million others. According to Christianson, a former investigative reporter and gubernatorial aide who is now contributing editor of The Criminal Law Bulletin, director of the New York Death Penalty Documentation Project, and chairman of the Board of the Safer Society Foundation, With Liberty for Some “is a history of how we …

Their Own Preposessions: The Establishment Clause 1999-2000, Leslie C. Griffin

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No abstract provided.

First Amendment Protects Crude Protest Of Police Action, Martin A. Schwartz

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No abstract provided.

The Employment Law Decisions Of The October 2000 Term Of The Supreme Court: A Review And Analysis, Ann C. Hodges, Douglas D. Scherer

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During the October 2000 Term, the Supreme Court delivered major setbacks for employees in Circuit City Stores, Inc. v. Adams,' which upheld mandatory and binding arbitration of federal and state employment discrimination claims through arbitration clauses forced upon employees as a condition of employment, and in Board of Trustees of the University of Alabama v. Garrett, which shielded state employers from federal court law suits brought under the Americans with Disabilities Act by victims of disability discrimination in employment. Employees escaped harm in Pollard v. E.I du Pont de Nemours & Co., in which the Court followed nearly unanimous circuit …