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Full-Text Articles in Law

Rendering Unto Caesar Or Electioneering For Caesar--Loss Of Church Tax Exemption For Participation In Electoral Politics, Alan L. Feld Jul 2001

Rendering Unto Caesar Or Electioneering For Caesar--Loss Of Church Tax Exemption For Participation In Electoral Politics, Alan L. Feld

Faculty Scholarship

The restriction on church participation in political campaigns contained in the Internal Revenue Code operates uneasily. It appears to serve the useful purpose of separating the spheres of religion and electoral politics. But the separation often is only apparent, as churches in practice signal support for a particular candidate in a variety of rays that historically have not cost them their exemptions. Although the limited enforcement by the Internal Revenue Service has reflected the sensitive nature of the First Amendment values present, the federal government should provide more formal elaboration by statute or regulation. Focus on the use of funds …


Privatization And Political Accountability, Jack M. Beermann Jun 2001

Privatization And Political Accountability, Jack M. Beermann

Faculty Scholarship

This article is an attempt to draw some general connections between privatization and political accountability. Political accountability is to be understood as the amenability of a government policy or activity to monitoring through the political process. Although the main focus of the article is to examine different types of privatization, specifically exploring the ramifications for political accountability of each type, I also engage in some speculation as to whether there are there situations in which privatization might raise constitutional concerns related to the degree to which the particular privatization reduces political accountability for the actions or decisions of the newly …


Controlling Precedent: Congressional Regulation Of Judicial Decision-Making, Gary S. Lawson Apr 2001

Controlling Precedent: Congressional Regulation Of Judicial Decision-Making, Gary S. Lawson

Faculty Scholarship

Modern federal courts scholars have been fascinated by the question of Congress' power to control the jurisdiction of the federal courts.' This fascination is not difficult to explain: the question is theoretically profound and raises fundamental issues about the roles of Congress and the federal courts in the constitutional order.2 As a practical matter, however, the question has proven to be of limited significance. Despite a recent spate of legislation restricting access to courts by prisoners and immigrants,3 people talk about wholesale jurisdiction-stripping far more than they actually do it.


The Natural Rights-Based Justification For Judicial Review, James E. Fleming Apr 2001

The Natural Rights-Based Justification For Judicial Review, James E. Fleming

Faculty Scholarship

On this panel, we are to consider questions such as "What form should constitutional interpretation by courts take in light of our aspirations to a good society?" For example, should courts engage in "moral readings" of the Constitution by elaborating abstract moral principles of liberty and equality or by making moral arguments about fostering human goods or virtues? In his paper, Justifying the Natural Law Theory of Constitutional Interpretation, Professor Michael Moore defends a sophisticated and powerful version of a moral realist or natural law answer to these questions.2 He confesses that, despite numerous criticisms, his views on the desirability …


Fidelity To Natural Law And Natural Rights In Constitutional Interpretation, James E. Fleming Apr 2001

Fidelity To Natural Law And Natural Rights In Constitutional Interpretation, James E. Fleming

Faculty Scholarship

It is an honor and a pleasure to comment on Professor Robert P. George's elegant and provocative paper.' For one thing, he is a leading proponent of reviving the natural law tradition in political, legal, and constitutional theory.2 For another, he was a reader of my Ph.D. dissertation in constitutional theory at Princeton University over a decade ago. I am happy to have the chance to reciprocate by reading a work of his and providing a critique of it. Fortunately, I learned at Princeton that vigorous criticism and disagreement are fully compatible with friendship and respect.


Taking Democracy Seriously, Neil B. Cohen Mar 2001

Taking Democracy Seriously, Neil B. Cohen

Faculty Scholarship

No abstract provided.


What Constitutional Law Can Learn From The Ali Principles Of Family Dissolution, David D. Meyer Jan 2001

What Constitutional Law Can Learn From The Ali Principles Of Family Dissolution, David D. Meyer

Faculty Scholarship

No abstract provided.


Dissing Congress , Ruth Colker, James J. Brudney Jan 2001

Dissing Congress , Ruth Colker, James J. Brudney

Faculty Scholarship

This article adopts a novel separation of powers framework to analyze the Rehnquist Court's recent decisions under the Commerce Clause and Section Five of the Fourteenth Amendment. We demonstrate in historical terms how the Court's methods for assessing the constitutional adequacy of federal laws have changed dramatically since the mid-1990s, and we argue that these new methods are undermining the proper role of Congress and producing a significant shift in the balance of power between the Branches. We identify two distinct methodologies employed by the Rehnquist Court that have resulted in growing disrespect for Congress - the "crystal ball" and …


Beyond Counting Votes: The Political Economy Of Bush V. Gore, Michael Abramowicz, Maxwell L. Stearns Jan 2001

Beyond Counting Votes: The Political Economy Of Bush V. Gore, Michael Abramowicz, Maxwell L. Stearns

Faculty Scholarship

No abstract provided.


Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber Jan 2001

Thick And Thin: Interdisciplinary Conversations On Populism, Law, Political Science, And Constitutional Change, Mark A. Graber

Faculty Scholarship

No abstract provided.


Social Democracy And Constitutional Theory: An Institutional Perspective, Mark A. Graber Jan 2001

Social Democracy And Constitutional Theory: An Institutional Perspective, Mark A. Graber

Faculty Scholarship

No abstract provided.


"Project Exile" And The Allocation Of Federal Law Enforcement Authority, Daniel Richman Jan 2001

"Project Exile" And The Allocation Of Federal Law Enforcement Authority, Daniel Richman

Faculty Scholarship

With each report of violent crime statistics (whether rising or falling) or of the latest firearms outrage, we hear the antiphony of the gun control debate. Advocates of increased federal regulation decry the inadequacies of a regime that permits relatively free access to firearms and argue that the availability of guns is itself a spur to more deadly violence. Advocates of minimal regulation, for their part, condemn measures that, they say, will primarily penalize law-abiding citizens, and instead call for more vigorous enforcement of existing laws, targeting "criminals," not their weapons. When the antiphony intrudes on funerals, the effect can …


Nixon V. Shrink Missouri Government Pac: The Beginning Of The End Of The Buckley Era?, Richard Briffault Jan 2001

Nixon V. Shrink Missouri Government Pac: The Beginning Of The End Of The Buckley Era?, Richard Briffault

Faculty Scholarship

In Nixon v. Shrink Missouri Government PAC, the Supreme Court emphatically reaffirmed a key element of the campaign finance doctrine first articulated in Buckley v. Valeo a quarter-century earlier that governments may, consistent with the First Amendment, impose limitations on the size of contributions to election campaigns. Shrink Missouri was significant because the Eighth Circuit decision reversed by the Supreme Court had sought to strengthen the constitutional protection provided to contributions and had invalidated limitations on donations to Missouri state candidates that were actually higher than the limits on donations to federal candidates that the Supreme Court had previously …


The Commercial Activity Exception Under The Fsia, Personhood Under The Fifth Amendment And Jurisdiction Over Foreign States: A Partial Roadmap For The Supreme Court In The New Millennium, Stephen J. Leacock Jan 2001

The Commercial Activity Exception Under The Fsia, Personhood Under The Fifth Amendment And Jurisdiction Over Foreign States: A Partial Roadmap For The Supreme Court In The New Millennium, Stephen J. Leacock

Faculty Scholarship

No abstract provided.


The Hobbesian Constitution: Governing Without Authority, Gary S. Lawson, Guy I. Seidman Jan 2001

The Hobbesian Constitution: Governing Without Authority, Gary S. Lawson, Guy I. Seidman

Faculty Scholarship

One case in American legal history, perhaps more than any other, starkly presents in a single package many of the most fundamental issues of American structural constitutionalism: the principle of enumerated powers, the concept of limited government, and the place of the United States in a world of sovereign nations. It raises foundational questions about the powers of all major institutions of the national government and serves as an ideal acid test for differing conceptions of the Constitution-and indeed of the American nation-state. In terms of its theoretical scope and consequences, it is one of the most important cases ever …


Everything I Need To Know About Presidents I Learned From Dr. Seuss, Gary S. Lawson Jan 2001

Everything I Need To Know About Presidents I Learned From Dr. Seuss, Gary S. Lawson

Faculty Scholarship

Oaths are out of fashion these days. This is an era in which it is widely considered unreasonable to expect the President of the United States to obey basic principles of law and justice, much less to honor something as abstract as an oath. Perjury the violation of a legally binding oath-is publicly defended as proof of the offender's humanity rather than his criminality. And one should not even mention in polite company something as gauche as honoring an oath of marriage. Those pesky vows of marital fidelity were, after all, just words.


Making Sense Of The Eleventh Amendment: International Law And State Sovereignty, Thomas H. Lee Jan 2001

Making Sense Of The Eleventh Amendment: International Law And State Sovereignty, Thomas H. Lee

Faculty Scholarship

The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State. - Eleventh Amendment to the Constitution of the United States of America The thesis of this article is that the Eleventh Amendment, ratified in 1798, represented the incorporation into the American domestic constitutional law of federalism (specifically, the doctrine of state sovereign immunity) the late eighteenth-century international law rule that only states have rights against other states …


When Did The Constitution Become Law, Gary S. Lawson Jan 2001

When Did The Constitution Become Law, Gary S. Lawson

Faculty Scholarship

Conventional wisdom and Supreme Court doctrine hold that the federal Constitution became legally effective on March 4, 1789, when the first session of Congress began. This conclusion is wrong, or at least seriously incomplete. Evidence from the Constitution, its adoption, and contemporaneous understandings reflected in treaties, statutes, and state constitutions demonstrates that the Constitution did not have a single effective date. Instead, different parts of the Constitution took effect in stages, beginning on June 21, 1788, when New Hampshire became the ninth state to ratify the document, and continuing at least until April 30, 1789, when President Washington was sworn …


Challenges To Racial Redistricting In The New Millennium: Hunt V. Cromartie As A Case Study, Guy-Uriel Charles, Luis Fuentes-Rohwer Jan 2001

Challenges To Racial Redistricting In The New Millennium: Hunt V. Cromartie As A Case Study, Guy-Uriel Charles, Luis Fuentes-Rohwer

Faculty Scholarship

No abstract provided.


When Can A State Be Sued?, William W. Van Alstyne Jan 2001

When Can A State Be Sued?, William W. Van Alstyne

Faculty Scholarship

In her Popular Government article "When You Can't Sue the State: State Sovereign Immunity" (Summer 2000), Anita R. Brown-Graham described a series of recent decisions in which a sharply divided U.S. Supreme Court barred individuals from suing states for money damages for certain violations of federal law, such as laws prohibiting discrimination against employees because of their age. In the response that follows, William Van Alstyne argues that this barrier to relief is neither unduly imposing nor novel. The debate over the significance of these decisions is likely to continue. In February 2001, in another case decided by a five-to-four …


Who’S Afraid Of The Twelfth Amendment?, Ernest A. Young, Sanford Levinson Jan 2001

Who’S Afraid Of The Twelfth Amendment?, Ernest A. Young, Sanford Levinson

Faculty Scholarship

No abstract provided.


Piercing The Veil: William J. Brennan's Account Of Regents Of The University Of California V. Bakke, Lee Epstein, Jack Knight Jan 2001

Piercing The Veil: William J. Brennan's Account Of Regents Of The University Of California V. Bakke, Lee Epstein, Jack Knight

Faculty Scholarship

No abstract provided.


Attorney General Taney & The South Carolina Police Bill, H. Jefferson Powell Jan 2001

Attorney General Taney & The South Carolina Police Bill, H. Jefferson Powell

Faculty Scholarship

No abstract provided.


Comparing Judicial Selection Systems, Lee Epstein, Jack Knight, Olga Shvetsova Jan 2001

Comparing Judicial Selection Systems, Lee Epstein, Jack Knight, Olga Shvetsova

Faculty Scholarship

No abstract provided.


The Supreme Court As A Strategic National Policymaker, Lee Epstein, Jack Knight, Andrew D. Martin Jan 2001

The Supreme Court As A Strategic National Policymaker, Lee Epstein, Jack Knight, Andrew D. Martin

Faculty Scholarship

No abstract provided.


The Calm After The Storm: First Amendment Cases In The Supreme Court's 2000-2001 Term, Joel Gora Jan 2001

The Calm After The Storm: First Amendment Cases In The Supreme Court's 2000-2001 Term, Joel Gora

Faculty Scholarship

No abstract provided.


The Storm Arrives: The First Amendment Cases In The Supreme Court's 1999-2000 Term, Joel Gora Jan 2001

The Storm Arrives: The First Amendment Cases In The Supreme Court's 1999-2000 Term, Joel Gora

Faculty Scholarship

No abstract provided.


Mark Tushnet: The Right Questions, Philip C. Bobbitt Jan 2001

Mark Tushnet: The Right Questions, Philip C. Bobbitt

Faculty Scholarship

It is the most grotesque of ironies that much of twentieth-century jurisprudence has been an effort to make law into a science. This effort amounts to a reversal of a far earlier appropriation. It was the observation of regularities in gravity and the movement of the planets that reformed science and gave credence to the locution, 'the laws of nature.' Nature was "lawful" because it appeared to follow undeviatingly a certain regimen, which is to say that any deviations observed were held to be clues as to the true content of the laws that were being followed. Mathematics was the …


Guns, Crime, And Punishment In America, Bernard E. Harcourt Jan 2001

Guns, Crime, And Punishment In America, Bernard E. Harcourt

Faculty Scholarship

There are over 200 million firearms in private hands in the United States, more than a third of which are handguns. In 1993 alone, it is estimated that 1.3 million victims of serious violent crime faced an offender with a gun. In 1999, there were approximately 563,000 such victims. Estimates of defensive uses of firearms – situations where individuals used a gun to protect themselves, someone else, or their property – range from 65,000 to 2.5 million per year. Punishments for crimes committed with a firearm are severe: under the federal firearms enhancement statute, the mandatory minimum sentence for use …


Health Care, Technology And Federalism, Kevin Outterson Jan 2001

Health Care, Technology And Federalism, Kevin Outterson

Faculty Scholarship

The regulation of health care has traditionally been the province of the states, most often grounded in the police power. In Colonial times, this division of responsibility was a rational response to the technological level of the eighteenth century, although even in the youth of the Republic some health and safety regulation required national and international action. With the growth of distancecompression technology, the increase in mobility of goods and services, and a significant federal financial role in health care, the grip of the police power on the regulation of health care has been weakened. Discussion of the police power …