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Full-Text Articles in Law

Three Mistakes About Interpretation, Paul Campos Nov 1993

Three Mistakes About Interpretation, Paul Campos

Michigan Law Review

The single most important word in modem constitutional theory is "interpretation." The single most confusing word in modem constitutional theory is "interpretation." What accounts for this unhappy state of affairs?

I will try to show that Barry Friedman's assertions, as well as others that are but rephrasings of the same basic ideas, are not the common sense truths that so many constitutional theorists assume them to be, but are instead the products of an extraordinarily confused and ultimately incoherent set of assumptions regarding the interpretation of language.


The Constitution, The Legislature, And Unfair Surprise: Toward A Reliance-Based Approach To The Contract Clause, Robert A. Graham Nov 1993

The Constitution, The Legislature, And Unfair Surprise: Toward A Reliance-Based Approach To The Contract Clause, Robert A. Graham

Michigan Law Review

This Note argues that the Court should return to a reliance-based approach to Contract Clause challenges, fashioned loosely along the same lines as the HRID. Although it does not advocate that the Court revivify the rules created by the early decisions, the Note proposes that the Court look to the private parties' expectations and, more specifically, to the reasonableness of those expectations in deciding the clause's applicability to a particular case. Part I provides a brief history of the Contract Clause and its development. This Part follows the clause from the Constitutional Convention through the 1980s to illustrate the Court's …


The Advocacy Of "Constitutional" Conduct, Marshall C. Derks Oct 1993

The Advocacy Of "Constitutional" Conduct, Marshall C. Derks

Indiana Law Journal

No abstract provided.


Article Ii Revisionism, Cass R. Sunstein Oct 1993

Article Ii Revisionism, Cass R. Sunstein

Michigan Law Review

One of the most striking developments of the last decade has been the new use of Article II in public law adjudication. Article II is a prominent feature not only of cases involving the creation of federal institutions that are independent of the President, but also of new disputes involving reviewability, scope of review, and standing.

Professor Krent and Mr. Shenkman have performed a valuable service in spelling out the argument that Article II, rather than Article III, justifies constitutional limits on legislative grants of standing. Indeed, on several important matters, we are very much in agreement. In this brief …


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 …


Of Citizen Suits And Citizen Sunstein, Harold J. Krent, Ethan G. Shenkman Jun 1993

Of Citizen Suits And Citizen Sunstein, Harold J. Krent, Ethan G. Shenkman

Michigan Law Review

After briefly summarizing Lujan and addressing Sunstein's critique, we explore the concept of accountability underlying the creation of a single executive in Article II. We then apply our theory of the unitary executive to several examples of broad grants of statutory standing, concluding that Congress can confer standing on private citizens only if it specifically articulates and individuates the interests whose violation gives rise to a cognizable case. Although we agree with Sunstein's view that broad grants of statutory standing do not necessarily trench upon constitutional values, we ultimately side with Justice Scalia in concluding that universal citizen standing, as …


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 Political Process As Final Solution, Charles M. Freeland Apr 1993

The Political Process As Final Solution, Charles M. Freeland

Indiana Law Journal

No abstract provided.


The Role Of Religious Values In Judicial Decision Making, Scott C. Idleman Apr 1993

The Role Of Religious Values In Judicial Decision Making, Scott C. Idleman

Indiana Law Journal

No abstract provided.


Revisiting Roe V. Wade: Substance And Process In The Abortion Debate, Margaret G. Farrell Apr 1993

Revisiting Roe V. Wade: Substance And Process In The Abortion Debate, Margaret G. Farrell

Indiana Law Journal

No abstract provided.


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 …


Legal Developments: Ethics In Government Federal Advisory Committees, Foreign Conflicts Of Interest, The Constitution, And Dr. Franklin's Snuff Box, Gerald S. Schatz Mar 1993

Legal Developments: Ethics In Government Federal Advisory Committees, Foreign Conflicts Of Interest, The Constitution, And Dr. Franklin's Snuff Box, Gerald S. Schatz

University of the District of Columbia Law Review

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 …


Identifying, Protecting And Preserving Individual Rights: Traditional Federal Court Functions, Roger J. Miner '56 Jan 1993

Identifying, Protecting And Preserving Individual Rights: Traditional Federal Court Functions, Roger J. Miner '56

Constitutional Law

No abstract provided.


Constitutional Interpretation And Activist Fantasies, Raoul Berger Jan 1993

Constitutional Interpretation And Activist Fantasies, Raoul Berger

Kentucky Law Journal

No abstract provided.


A Constitutional Conspiracy Unmasked: Why "No State" Does Not Mean "No State", Mark A. Graber Jan 1993

A Constitutional Conspiracy Unmasked: Why "No State" Does Not Mean "No State", Mark A. Graber

Faculty Scholarship

No abstract provided.


Right To Be Present Jan 1993

Right To Be Present

Touro Law Review

No abstract provided.


Fencing Out Politically Unpopular Groups From The Normal Political Processes: The Equal Protection Concerns Of Colorado Amendment Two, Craig Cassin Burke Jan 1993

Fencing Out Politically Unpopular Groups From The Normal Political Processes: The Equal Protection Concerns Of Colorado Amendment Two, Craig Cassin Burke

Indiana Law Journal

No abstract provided.


Due Process Jan 1993

Due Process

Touro Law Review

No abstract provided.


An Adequate Education For All Maryland's Children: Morally Right, Economically Necessary, And Constitutionally Required, Susan P. Leviton, Matthew H. Joseph Jan 1993

An Adequate Education For All Maryland's Children: Morally Right, Economically Necessary, And Constitutionally Required, Susan P. Leviton, Matthew H. Joseph

Maryland Law Review

No abstract provided.


Severability, John C. Nagle Jan 1993

Severability, John C. Nagle

Journal Articles

When a court holds a provision of a statute unconstitutional, a question remains regarding the validity of the remainder of the statute. The court may find that the unconstitutional provision may be severed from the statute and leave the remainder of the statute in effect. Alternatively, the court may hold that the unconstitutional provision cannot be severed and invalidate the entire statute.

This article argues that the jurisprudence surrounding the issue of severability is confusing and inconsistent. After explaining the concept of severability and its ramifications for statutes, I trace the development of the current judicial test for determining when …


There Goes The Neighborhood: The Evolution Of "Family" In Local Zoning Ordinances, William Graham Jan 1993

There Goes The Neighborhood: The Evolution Of "Family" In Local Zoning Ordinances, William Graham

Touro Law Review

No abstract provided.


Right To Confrontation Jan 1993

Right To Confrontation

Touro Law Review

No abstract provided.


Right To Retirement Benefits Jan 1993

Right To Retirement Benefits

Touro Law Review

No abstract provided.


Rules & Regulations Jan 1993

Rules & Regulations

Touro Law Review

No abstract provided.


Search & Seizure Jan 1993

Search & Seizure

Touro Law Review

No abstract provided.


Search & Seizure Jan 1993

Search & Seizure

Touro Law Review

No abstract provided.


Trial By Jury Jan 1993

Trial By Jury

Touro Law Review

No abstract provided.


The Importance Of A Contextual Approach To Libel Law: The Impact Of Immuno Ag. V. Moor-Jankowski And Milkovich V. Lorain Journal Co., Margaret Chan Jan 1993

The Importance Of A Contextual Approach To Libel Law: The Impact Of Immuno Ag. V. Moor-Jankowski And Milkovich V. Lorain Journal Co., Margaret Chan

Touro Law Review

No abstract provided.


Reapportionment Jan 1993

Reapportionment

Touro Law Review

No abstract provided.