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1993

Constitutional Law

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Institution
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Articles 1 - 30 of 145

Full-Text Articles in Law

It's Not Just Larsen, Bruce Ledewitz Dec 1993

It's Not Just Larsen, Bruce Ledewitz

Ledewitz Papers

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


Illusion, Illogic, And Injustice: Real-Offense Sentencing And The Federal Sentencing Guidelines, David Yellen Dec 1993

Illusion, Illogic, And Injustice: Real-Offense Sentencing And The Federal Sentencing Guidelines, David Yellen

Articles

No abstract provided.


Constructing The Substantive Constitution, James E. Fleming Dec 1993

Constructing The Substantive Constitution, James E. Fleming

Faculty Scholarship

I. Introduction A. The Flights from Substance in Constitutional Theory A specter is haunting constitutional theory-the specter of Lochner v. New York.' In the Lochner era, the Supreme Court gave heightened judicial protection to substantive economic liberties through the Due Process Clauses.2 In 1937, during the constitutional revolution wrought by the New Deal, West Coast Hotel v. Parrish3 officially repudiated the Lochner era, marking the first death of substantive due process.4 Nevertheless, the ghost of Lochner has perturbed constitutional theory ever since, manifesting itself in charges that judges are "Lochnering" by imposing their own substantive fundamental values in the guise …


Unfunded Mandates, Hidden Taxation, And The Tenth Amendment: On Public Choice, Public Interest, And Public Services, Edward A. Zelinsky Nov 1993

Unfunded Mandates, Hidden Taxation, And The Tenth Amendment: On Public Choice, Public Interest, And Public Services, Edward A. Zelinsky

Articles

Few contemporary issues concern state and local policymakers as intensely as unfunded mandates. Mayors, county executives, city councilmen, and the professional associations representing them routinely argue that the federal and state governments have, in recent years, imposed at an accelerating rate expensive requirements on municipalities without granting corresponding funds for compliance, thereby irresponsibly straining the fiscal capacity of municipalities, hampering their ability to provide essential services, and improperly infringing upon the scope of local control. The complaints of municipal policymakers have provoked a variety of proposals for restraining unfunded mandates: obligatory disclosure of the projected costs of proposed mandates, requirements …


On Misreading John Bingham And The Fourteenth Amendment, Richard L. Aynes Oct 1993

On Misreading John Bingham And The Fourteenth Amendment, Richard L. Aynes

Akron Law Faculty Publications

Nearly fifty years ago, Professor Charles Fairman published his seminal article, Does the Fourteenth Amendment Incorporate the Bill of Rights? According to Fairman, it does not. Fairman's analysis of the congressional debates and other historical data on the Fourteenth Amendment led him to conclude that the Privileges or Immunities Clause of the Amendment does not make the Bill of Rights applicable to the states. Instead, Fairman argued that the intent of the Amendment's framers is most nearly realized by the use of the Due Process Clause to enforce against the states only those rights “ ‘implicit in the concept of …


The Langugage And Culture (Not To Say Race) Of Peremptory Challenges, Sheri Lynn Johnson Oct 1993

The Langugage And Culture (Not To Say Race) Of Peremptory Challenges, Sheri Lynn Johnson

Cornell Law Faculty Publications

No abstract provided.


The Road Not Taken: State Constitutions As An Alternative Source Of Protection For Reproductive Rights, Kevin F. O'Neill Oct 1993

The Road Not Taken: State Constitutions As An Alternative Source Of Protection For Reproductive Rights, Kevin F. O'Neill

Law Faculty Articles and Essays

Lawyers seeking constitutional protection for reproductive rights have relied almost exclusively on a liberty/privacy theory under the Federal Constitution. In the wake of Planned Parenthood of Southeastern Pennsylvania v. Casey, this theory may be seen as providing a floor of minimum protection-preventing states from banning abortion outright. But it is not strong enough to prevent states from enacting restrictions on the availability of abortion. Thus, the battle over reproductive rights may be seen as shifting from one phase ("Can abortion be banned?") to another ("How far can states go in restricting access to abortion'?"). If proponents of reproductive freedom are …


Copyright And "The Exclusive Right" Of Authors, L. Ray Patterson Oct 1993

Copyright And "The Exclusive Right" Of Authors, L. Ray Patterson

Scholarly Works

The purpose of this essay is to define and explore the meaning of "the exclusive Right" in the Intellectual Property Clause of the United States Constitution as related to the promotion of learning, the public domain, and authors. Without a clear understanding of this key term, one is likely to be unaware that lower federal courts are continually making rulings contrary to both the Copyright Clause and the Copyright Act. The classic example is the judicially created sweat-of-the-brow copyright, which in 1991 -- after seventy-five years of precedent -- the Supreme Court decreed to be unconstitutional. Other bad precedents, such …


The University In The Manner Of Tiananmen Square, William W. Van Alstyne Oct 1993

The University In The Manner Of Tiananmen Square, William W. Van Alstyne

Faculty Publications

No abstract provided.


Foreword: Elected Branch Influences In Constitutional Decisionmaking, Neal Devins Oct 1993

Foreword: Elected Branch Influences In Constitutional Decisionmaking, Neal Devins

Faculty Publications

No abstract provided.


Brief Of Defendant-Appellees Catholic Diocese Of Cleveland And Bishop Anthony M. Pilla , Hawley V. City Of Cleveland, 24 F3d 814 (6th Cir. 1994), David F. Forte, Douglas J. Paul, Edward J. Maher, Bernard Niehaus Sep 1993

Brief Of Defendant-Appellees Catholic Diocese Of Cleveland And Bishop Anthony M. Pilla , Hawley V. City Of Cleveland, 24 F3d 814 (6th Cir. 1994), David F. Forte, Douglas J. Paul, Edward J. Maher, Bernard Niehaus

Law Faculty Briefs and Court Documents

A City of Cleveland Ordinance leasing space in the airport to the Catholic Diocese of Cleveland for use as a chapel, which is available to religious groups and persons of all faiths does not violate the Establishment Clause of the First Amendment.


Lords Of Lash, Loom, And Law: Justice Story, Slavery, And Prigg V. Pennsylvania, Barbara Holden-Smith Sep 1993

Lords Of Lash, Loom, And Law: Justice Story, Slavery, And Prigg V. Pennsylvania, Barbara Holden-Smith

Cornell Law Faculty Publications

No abstract provided.


A Practical Guide To Recent Developments In Federal Habeas Corpus For Practicing Attorneys, J. Thomas Sullivan Jul 1993

A Practical Guide To Recent Developments In Federal Habeas Corpus For Practicing Attorneys, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.


Can Employment Law Arbitration Work?, Mark Berger Jul 1993

Can Employment Law Arbitration Work?, Mark Berger

Faculty Works

Over the course of the 1960s through early 1990s, a wave of Federal and State legislation modified the presumption of an at-will employment relationship with a number of statutes that gave workers rights to not be terminated for suspect reasons. However, these protections made conflicts following termination of employment far more likely, and measures were taken to try to lessen the chance of these becoming litigation. Following the Supreme Court’s decision in Gilmer v. Interstate/Johnson Lane Corporation, the use of mandatory alternative dispute resolution, primarily arbitration, to resolve employment rights claims began to be considered. This article examines whether …


State Taxation Of Corporate Income From Intangibles: Allied-Signal And Beyond, Walter Hellerstein Jul 1993

State Taxation Of Corporate Income From Intangibles: Allied-Signal And Beyond, Walter Hellerstein

Scholarly Works

If the field of state taxation has become somewhat of an academic backwater, it is not for want of issues warranting sustained scholarly attention. The Supreme Court alone has provided ample grist for the academic mill by handing down an extraordinary number of significant decisions delineating the federal constitutional restraints on state tax power. Among the state tax questions considered by the Court in recent years, none has figured so prominently and persistently in its deliberations as the states' power to tax the income of multijurisdictional corporations. In Allied-Signal, Inc. v. Director, Division of Taxation, the Court revisited the most …


The Social Origins Of Property, Jack M. Beermann, Joseph William Singer Jul 1993

The Social Origins Of Property, Jack M. Beermann, Joseph William Singer

Faculty Scholarship

The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use.' When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves "to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole."' To determine when a regulation amounts to a "taking" of property …


The Right To Religion-Based Exemptions In Early America: The Case Of Conscientious Objectors To Conscription, Ellis M. West Jun 1993

The Right To Religion-Based Exemptions In Early America: The Case Of Conscientious Objectors To Conscription, Ellis M. West

Political Science Faculty Publications

One of the more controversial decisions handed down by the Supreme Court in recent years was its decision in the case of Employment Division, Oregon v. Smith, which raised the basic issue of whether the free exercise clause of the First Amendment guarantees a right to religion-based exemptions, i.e., whether it gives persons and groups a prima facie right to be exempt from having to obey valid laws when they have religious reasons for noncompliance. More specifically, in Smith, two Native Americans claimed that their prosecution for using an illegal drug, peyote, was precluded by the free exercise …


Clinic Bill Strikes At Nonviolent Protest, Bruce Ledewitz May 1993

Clinic Bill Strikes At Nonviolent Protest, Bruce Ledewitz

Ledewitz Papers

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


A Status Report On Litigation Affecting Historically Black Colleges And Universities With Postscript On April 12, 1993 Mississippi Hearing, J. Clay Smith Jr. May 1993

A Status Report On Litigation Affecting Historically Black Colleges And Universities With Postscript On April 12, 1993 Mississippi Hearing, J. Clay Smith Jr.

Selected Speeches

No abstract provided.


Uniformity In The Federal Courts: A Proposal For Increasing The Use Of En Banc Appellate Review, Michael Ashley Stein Apr 1993

Uniformity In The Federal Courts: A Proposal For Increasing The Use Of En Banc Appellate Review, Michael Ashley Stein

Faculty Publications

No abstract provided.


The Tribunal In Albania, John Paul Jones Apr 1993

The Tribunal In Albania, John Paul Jones

Law Faculty Publications

Professor Jones explains and critiques "The Organization of Justice and the Constitutional Court," the1992 amendments to Albania's provisional constitution that established the nation's post-revolution judicial system.


The New First Amendment And Its Impact On The Second, Daniel O. Conkle Apr 1993

The New First Amendment And Its Impact On The Second, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.


Justice Blackmun, Federalism, And Separation Of Powers, Dan T. Coenen Apr 1993

Justice Blackmun, Federalism, And Separation Of Powers, Dan T. Coenen

Scholarly Works

On June 8, 1970, Harry A. Blackmun took his seat on the Supreme Court bench. Few then foresaw that, in the ensuing twenty-three terms of the Court, Justice Blackmun would make contributions to American law that rank no less than monumental. Justice Blackmun has become best known for his landmark opinion in Roe v. Wade and his increasingly pointed defense of libertarian and egalitarian values. During his long tenure on the Court, however, Justice Blackmun also quietly has shaped the law of constitutional federalism and separation of powers.

This reality first came to my attention in 1987, when I received …


“Thirty Pieces Of Silver” For The Rights Of Your People: Irresistible Offers Reconsidered As A Matter Of State Constitutional Law, William W. Van Alstyne Apr 1993

“Thirty Pieces Of Silver” For The Rights Of Your People: Irresistible Offers Reconsidered As A Matter Of State Constitutional Law, William W. Van Alstyne

Faculty Publications

No abstract provided.


Virtues (And Limits) Of Shared Values: The Fourth Amendment And Miranda's Concept Of Custody, Richard A. Williamson Apr 1993

Virtues (And Limits) Of Shared Values: The Fourth Amendment And Miranda's Concept Of Custody, Richard A. Williamson

Faculty Publications

Miranda only protects suspects who the police subject to custodial interrogation. The concept of custody is tethered to the Fifth Amendment privilege against self-incrimination; thus, to render a suspect in custody, law enforcement officials must subject the suspect to a compelling environment that tends to undermine that privilege. In this article, Professor Richard A. Williamson examines the application of Miranda to Terry stops. He reviews the impact of the Beheler and Berkemer decisions, which held that suspects who officials stop based on reasonable suspicion, as opposed to suspects who officials arrest, are not entitled to Miranda warnings. Professor Williamson generally …


Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall Apr 1993

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …


Civil Penalties And Multiple Punishment Under The Double Jeopardy Clause: Some Unanswered Questions, David S. Rudstein Mar 1993

Civil Penalties And Multiple Punishment Under The Double Jeopardy Clause: Some Unanswered Questions, David S. Rudstein

All Faculty Scholarship

No abstract provided.


"But Whoever Treasures Freedom...": The Right To Travel And Extraterritorial Abortions, Seth F. Kreimer Mar 1993

"But Whoever Treasures Freedom...": The Right To Travel And Extraterritorial Abortions, Seth F. Kreimer

All Faculty Scholarship

No abstract provided.


Legislative Process And Commercial Law: Lessons From The Copyright Act Of 1976 And The Uniform Commercial Code, Harold R. Weinberg, William J. Woodward Jr. Feb 1993

Legislative Process And Commercial Law: Lessons From The Copyright Act Of 1976 And The Uniform Commercial Code, Harold R. Weinberg, William J. Woodward Jr.

Law Faculty Scholarly Articles

Overlap and conflict are inevitable in any legal system in which a federal government and state governments both have authority to enact laws. In our federal system, the Constitution's Supremacy Clause identifies federal law as preeminent in case of conflict. When conflict develops and litigation is required to determine whether state or federal law controls the issue at hand, our system analyzes the problem using the term preemption as a basis for analysis.

This Article explores the federal legislative process that precedes judicial preemption decisions. By studying the legislative process for its sensitivity to preemption issues, possible ways to modify …


The Public Square And The Jew As Religious Other, Sheldon Nahmod Feb 1993

The Public Square And The Jew As Religious Other, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.