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Articles 1 - 10 of 10
Full-Text Articles in Law
Variations On Some Themes Of A Disporting Gazelle And His Friend: Statutory Interpretation As Seen By Jerome Frank And Felix Frankfurter, Kent Greenawalt
Variations On Some Themes Of A Disporting Gazelle And His Friend: Statutory Interpretation As Seen By Jerome Frank And Felix Frankfurter, Kent Greenawalt
Faculty Scholarship
In 1947, this Review published two lectures on statutory interpretation by Jerome Frank and Felix Frankfurter. Both jurists were concerned with a basic question: How constrained are judges when they interpret legislation? The answers each gives, while similar in some respects, differ strikingly. In arguing that interpretation necessarily involves a creative element, Frank analogizes the role of a judge in interpreting legislation to that of a performer in interpreting a musical composition. Although he argues that judicial creativity is constrained, Frank views statutory interpretation as "a kind of legislation." For Frankfurter, by contrast, in construing a statute, a judge is …
Tort Suits For Injuries Sustained During Illegal Abortions: The Effects Of Judicial Bias , Gail D. Hollister
Tort Suits For Injuries Sustained During Illegal Abortions: The Effects Of Judicial Bias , Gail D. Hollister
Faculty Scholarship
Most courts hold that, by agreeing to have an illegal abortion, a woman forfeits her right to recover for injuries tortuously inflicted during that abortion. Nevertheless, most courts do permit suits by those injured in the course of committing other crimes, and they usually do so without considering whether plaintiff's criminal conduct should prevent recovery. Part II of this Article explores and discredits the reasons offered for prohibiting recovery in abortion suits. 21 Part III analyzes, on a chronological basis, each state's decisions prohibiting such recovery. Part IV discusses possible explanations for the abortion decisions, noting that these women's claims …
Separate But Equal?: The Supreme Court, The Lower Federal Courts, And The Nature Of The "Judicial Power", Ashutosh Bhagwat
Separate But Equal?: The Supreme Court, The Lower Federal Courts, And The Nature Of The "Judicial Power", Ashutosh Bhagwat
Faculty Scholarship
No abstract provided.
The Section 5 Mystique, Morrison, And The Future Of Federal Antidiscrimination Law, Margaret H. Lemos, Samuel Estreicher
The Section 5 Mystique, Morrison, And The Future Of Federal Antidiscrimination Law, Margaret H. Lemos, Samuel Estreicher
Faculty Scholarship
No abstract provided.
Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler
Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler
Faculty Scholarship
Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a claimant …
Recent Efforts To Change Discovery Rules: Advice For Draftsmen Of Rules For State Courts, Paul D. Carrington
Recent Efforts To Change Discovery Rules: Advice For Draftsmen Of Rules For State Courts, Paul D. Carrington
Faculty Scholarship
No abstract provided.
Rights, Rules And The Structure Of Constitutional Adjudication: A Response To Professor Fallon, Matthew D. Adler
Rights, Rules And The Structure Of Constitutional Adjudication: A Response To Professor Fallon, Matthew D. Adler
Faculty Scholarship
Constitutional doctrine is typically rule-dependent. A viable constitutional challenge typically hinges upon the existence of a discriminatory, overbroad, improperly motivated, or otherwise invalid rule, to which the claimant has some nexus. In a prior article, Prof. Adler proposed one model of constitutional adjudication that tries to make sense of rule-dependence. He argued that reviewing courts are not vindicating the personal rights of claimants, but rather are repealing or amending invalid rules. IN a Commentary in this issue, Professor Fallon now puts forward a different model of constitutional adjudication, equally consistent with rule-dependence. Fallon proposes that a reviewing court should overturn …
Rights And Rules: An Overview, Matthew D. Adler, Michael C. Dorf
Rights And Rules: An Overview, Matthew D. Adler, Michael C. Dorf
Faculty Scholarship
No abstract provided.
Drug Treatment Courts And Emergent Experimentalist Government, Michael C. Dorf, Charles F. Sabel
Drug Treatment Courts And Emergent Experimentalist Government, Michael C. Dorf, Charles F. Sabel
Faculty Scholarship
Despite the continuing "war on drugs," the last decade has witnessed the creation and nationwide spread of a remarkable set of institutions, drug treatment courts. In drug treatment court, a criminal defendant pleads guilty or otherwise accepts responsibility for a charged offense and accepts placement in a court-mandated program of drug treatment. The judge and court personnel closely monitor the defendant's performance in the program and the program's capacity to serve the mandated client. The federal government and national associations in turn monitor the local drug treatment courts and disseminate successful practices. The ensemble of institutions, monitoring, and pooling exemplifies …
Protecting The Sacred Sites Of Indigenous People In U.S. Courts: Reconciling Native American Religion And The Right To Exclude, Kevin J. Worthen
Protecting The Sacred Sites Of Indigenous People In U.S. Courts: Reconciling Native American Religion And The Right To Exclude, Kevin J. Worthen
Faculty Scholarship
The key to understanding current U. S. caselaw concerning the protection of Native American sacred sites is arguably found in the dissenting opinion of an eighteen-year old case involving not religious freedom, not sacred sites, and not cultural heritage - but the right of Indian tribes to impose severance taxes on non-tribal members who extract oil and gas from tribal lands. In Merrion v. Jicarilla Apache Tribe, Justice Stevens refused to join the majority’s conclusion that the inherent sovereignty of the Jicarilla Apache Tribe included the power to impose such a tax. In his view, a tribe’s authority to regulate …