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The Arts: A Traditional Sphere Of Free Expression? First Amendment Implications Of Government Funding To The Arts In The Aftermath Of Rust V. Sullivan , Thomas P. Leff

American University Law Review

No abstract provided.

The Arts: A Traditional Sphere Of Free Expression? First Amendment Implications Of Government Funding To The Arts In The Aftermath Of Rust V. Sullivan , Thomas P. Leff

American University Law Review

No abstract provided.

Foreword, Louis H. Pollak

Michigan Law Review

Introduction to the Symposium Reflections on United States v. Lopez

The Constitution's Forgotten Cover Letter: An Essay On The New Federalism And The Original Understanding, Daniel A. Farber

Michigan Law Review

At the end of the summer of 1787, the Philadelphia Convention issued two documents. One was the Constitution itself. The other document, now almost forgotten even by constitutional historians, was an official letter to Congress, signed by George Washington on behalf of the Convention. Congress responded with a resolution that the Constitution and "letter accompanying the same" be sent to the state legislatures for submission to conventions in each state.

The Washington letter lacks the detail and depth of some other evidence of original intent. Being a cover letter, it was designed only to introduce the accompanying document rather than …

Enumerated Means And Unlimited Ends, H. Jefferson Powell

Michigan Law Review

United States v. Lopez can be read as a fairly mundane disagreement over the application of a long-settled test. The Government defended the statute under review in the case, the Gun-Free School Zones Act of 1990, along familiar lines as a permissible regulation of activity affecting interstate and foreign commerce.

In this essay, I do not address the question whether Lopez was an important decision. My concern instead is with the problem that underlies Lopez's particular issue of the scope of the commerce power: Given our commitment to limited national government, in what way is the national legislature actually limited? …

Commerce!, Deborah Jones Merritt

Michigan Law Review

In this article, I explore the Supreme Court's new definition of "Commerce ... among the several States."9 In Part I, I examine three new principles that Lopez announces and that could significantly rework the Court's Commerce Clause jurisprudence. Part II, however, shows that these principles must be understood in the context of almost a dozen factors narrowing the Supreme Court's Lopez decision. Part II also demonstrates that the lower courts have understood the contextual uniqueness of Lopez and already have distinguished the decision in upholding more than half a dozen broad exercises of congressional authority. Part III then shows that …

"A Government Of Limited And Enumerated Powers": In Defense Of United States V. Lopez, Steven G. Calabresi

Michigan Law Review

The Supreme Court's recent decision in United States v. Lopez marks a revolutionary and long overdue revival of the doctrine that the federal government is one of limited and enumerated powers. After being "asleep at the constitutional switch" for more than fifty years, the Court's decision to invalidate an Act of Congress on the ground that it exceeded the commerce power must be recognized as an extraordinary event. Even if Lopez produces no progeny and is soon overruled, the opinion has shattered forever the notion that, after fifty years of Commerce Clause precedent, we can never go back to the …

Policy Distortion And Democratic Debilitation: Comparative Illumination Of The Countermajoritarian Difficulty, Mark Tushnet

Michigan Law Review

James Bradley Thayer set the terms of the past century's discussion of judicial review in The Origin and Scope of the American Doctrine of Constitutional Law. Thayer was concerned with what Alexander Bickel labeled the "countermajoritarian difficulty" with judicial review, that judicial review displaces decisions made by near-contemporaneous political majorities and therefore is open to the charge that it is undemocratic. Thayer attempted to minimize the displacement- of political majorities through his "clear error" rule, according to which courts should not overturn legislation unless "those who have the right to make laws have not merely made a mistake, but have …

Back To The Briarpatch: An Argument In Favor Of Constitutional Meta-Analysis In State Action Determinations, Ronald J. Krotoszynski Jr.

Michigan Law Review

Brer Rabbit, after claiming repeatedly that he would prefer almost anything to being thrown into the briarpatch, expressed glee once tossed there. In fact, Brer Rabbit wanted to be in the briarpatch because, like most rabbits, he could navigate the briarpatch with relative ease: the briarpatch was home.

Over the course of a century, the Supreme Court has developed a great degree of familiarity with the state action doctrine, a doctrinal briar patch. Like Brer Rabbit, the Court has disclaimed repeatedly any interest in being there.

In this article, I argue that the existing tests for establishing the presence of …

Where's The Buck?: Juror Misperception Of Sentencing Responsibility In Death Penalty Cases, Joseph L. Hoffmann

Indiana Law Journal

Symposium: The Capital Jury Project

Lemon V. Kurtzman (Lemon I), 1971, Nathan Dorius

Brigham Young University Prelaw Review

Since the authors of the Constitution first gathered to create the supreme law of the land, the relationship between church and state has often been at the forefront of debate. The contention has been over interpretation of the First Amendment's Religion Clause: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof;... " This portion of the First Amendment has been divided by the courts into two separate "clauses", one being the Establishment Clause and the other being the Free Exercise Clause. In 1947 the United States Supreme Court (hereafter referred to as "the …

The Rising Wall: Everson V. Board O(Education, Rose Lindsay

Brigham Young University Prelaw Review

The interlocking of church and state has been one of the most prolific sources of human strife. The American founding fathers recognized the precarious nature of the relationship between church and state. They accepted the basic premise, enunciated by James Madison in his Memorial and Remonstrance Against Religious Assessments, "religion is not within the cognizance of Civil Government"(Cord 1982, 247). To prevent the treacherous combination of religious power with federal power, the founding fathers added the First Amendment to the United States Constitution in 1791. Breaking sharply with the past's tradition of melding church and state, they declared. "Congress shall …

A Theory Of Compulsory Process Clause Discovery Rights, Jean Montoya

Indiana Law Journal

No abstract provided.

Supplemental Jurisdiction Over Claims By Plaintiffs In Diversity Cases: Making Sense Of 28 U.S.C. § 1367 (B), Darren J. Gold

Michigan Law Review

This Note examines the language and legislative history of section 1367(b) and proposes a uniform test for determining the circumstances in which subsection (b) authorizes the exercise of supplemental jurisdiction. Part I of this Note explains the doctrines of pendent and ancillary jurisdiction and examines how the Supreme Court's decision in Finley v. United States called these doctrines into question. Part II examines the language and legislative history of section 1367 and concludes that the statute only prohibits the exercise of supplemental jurisdiction over claims by plaintiffs in diversity cases when doing so would permit plaintiffs to circumvent the complete …

Thirteen Easy Pieces, Frank I. Michelman

Michigan Law Review

A Review of Responding to Imperfection: The Theory and Practice of Constitutional Amendment by Sanford Levinson

In Search Of The Post-Positivist Jury, Mark Cammack

Indiana Law Journal

No abstract provided.

Is Moral Relativism A Constitutional Command?, Steven G. Gey

Indiana Law Journal

No abstract provided.

Annual Survey Of Virginia Law: Campaign And Election Law, Claudia T. Salomon

University of Richmond Law Review

This is the first year the University of Richmond Law Review has surveyed recent developments in Virginia's campaign and election laws. Thus, this article provides a general overview of the laws governing state and local candidates concerning (1) qualifications for candidacy, (2) campaign finance, and (3) campaign and election misconduct.

The Constitutionality Of Punishing Deadbeat Parents: The Child Support Recovery Act Of 1992 After United States V. Lopez, Ronald S. Kornreich

Fordham Law Review

No abstract provided.

The Constitution And The Subgroup Question, Martha Minow

Indiana Law Journal

Presented on Nov. 18, 1994, Indiana University School of Law-Bloomington as the 1994 Harris Lecture.

Civil Service Appointments And Promotions

Touro Law Review

No abstract provided.

Cruel & Unusual Punishment

Touro Law Review

No abstract provided.

The Pledge Of Allegiance Problem, Abner S. Greene

Fordham Law Review

No abstract provided.

Consensus Of The Governed: The Legitimacy Of Constitutional Change, Raymond Ku

Fordham Law Review

What a government of limited powers needs, at the beginning and forever, is some means of satisfying the people that it has taken all steps humanly possible to stay within its powers. That is the condition of its legitimacy, and its legitimacy, in the long run, is the condition of its life. Our whole political system rests on the distinction between constitutional and other laws. The former are the solemn principles laid down by the people in its ultimate sovereignty; the latter are regulations made by its representatives within the limits of their authority, and the courts can hold unauthorized …

Constitutional Reform On Taiwan: Fulfilling A Chinese Notion Of Democratic Sovereignty?, Piero Tozzi

Fordham Law Review

No abstract provided.

The Pale Impact Of Recent Case Law On The Ascendancy Of The Voting Rights Act, Frank N. Schellace

Touro Law Review

No abstract provided.

C & A Carbone V. Clarkstown: A Wake-Up Call For The Dormant Commerce Clause, Rachel D. Baker

Duke Environmental Law & Policy Forum

Introduction Garbage collection, transportation, and disposal have historically been the responsibility of individual towns and cities in the United States. 1 However, stringent environmental regulations, declining landfill capacity, and the implementation of costly source reduction and recycling programs have greatly increased the costs of waste management borne by towns. 2 For the past two decades, many local governments have relied on "flow control" ordinances to finance their solid waste management activities. 3 These ordinances designate where municipal solid waste generated within the community must be managed, stored, or disposed. 4 Recently, in C & A Carbone, Inc. v. Town of …

The Health Care Proxy And The Narrative Of Death, Steven I. Friedland

Journal of Law and Health

This article is divided into three sections. After this introduction, section II features a brief history of the narrative of death, explores the role of heroism in the death narrative, described the "miracles" of modern medicine, and analyzes some of the resulting adverse transformations wrought by the advances. The transformations include the unrealistic expectations of longevity and obsession with youthfulness, the removal of death from the personal realm, and the change in the nature of death. Section III examines the legal apparatus erected to meet the issues created by the medical advances, including the redefinition of death, and Constitutional, common …