Law Commons^™

Textualism’S Limits On The Administrative State: Of Isolated Waters, Barking Dogs, And Chevron, Michael P. Healy

Law Faculty Scholarly Articles

In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the U.S. Supreme Court recently held that the U.S. Army Corps of Engineers (the Corps) does not have authority under the Clean Water Act (the Act or the CWA) to regulate the filling of “other waters.” This decision demonstrates a major shift in the Court's approach to statutory interpretation, particularly in the context of reviewing an agency’s understanding of a statute. The significance of the case is best gauged by contrasting it with United States v. Riverside Bayview Homes, Inc. There, the Court, acting …

Congress' Section 5 Power And Remedial Rights, Tracy A. Thomas

Akron Law Faculty Publications

There has been continual conflict between the legislative and judicial branches regarding the authority of Congress to enact remedies for the violation of constitutional rights. Armed with the assumption that it has unlimited authority to define remedies, Congress has sought to enact legislation to alter constitutional remedies imposed by the courts. At the same time, the Supreme Court has narrowly interpreted the scope of Congress' so-called “remedial” or enforcement power under Section 5 of the Fourteenth Amendment. The legal question explored in this article is how to balance this conflict of power and resolve the respective roles of each branch …

Congress' Section 5 Power And Remedial Rights, Tracy A. Thomas

Tracy A. Thomas

There has been continual conflict between the legislative and judicial branches regarding the authority of Congress to enact remedies for the violation of constitutional rights. Armed with the assumption that it has unlimited authority to define remedies, Congress has sought to enact legislation to alter constitutional remedies imposed by the courts. At the same time, the Supreme Court has narrowly interpreted the scope of Congress' so-called “remedial” or enforcement power under Section 5 of the Fourteenth Amendment. The legal question explored in this article is how to balance this conflict of power and resolve the respective roles of each branch …

Free-Standing Due Process And Criminal Procedure: The Supreme Court’S Search For Interpretive Guidelines, Jerold H. Israel

Saint Louis University Law Journal

No abstract provided.

Accountability Solutions In The Consent Search And Seizure Wasteland, José F. Anderson

All Faculty Scholarship

The legal and social issues that have emerged out of the doctrine that people in America have a right against unreasonable government instituted searches and seizures have dominated the dialogue and controversy in the American criminal justice system over the last three decades. A large portion of the debate has centered around the controversial exclusionary rule, which frees the sometimes unmistakably guilty because of irregularities in police procedure.

The notion that society suffers when criminals go free because of the constable's blunder has struck a decidedly political note in the discussion over criminal justice reform. Many observers are quick to …

Palazzolo V. Rhode Island: The Supreme Court's Expansion Of Subsequent Owners' Rights Under The Takings Clause (Symposium: The Thirteenth Annual Supreme Court Review), Leon D. Lazer

Scholarly Works

No abstract provided.

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

Faculty Scholarship

No abstract provided.

A Conservative Defense Of Romer V. Evans, Dale Carpenter

Faculty Journal Articles and Book Chapters

In his argument for an alternative conservative response to Romer v. Evans, the author outlines the majority and dissenting opinions in Evans to identify what he takes to be the decision's import. Next, he outlines some of the main themes of conservative political and legal thought, concentrating especially on Edmund Burke. He then argues the common conception of Burke as an intransigent defender of the status quo and of present traditions and practices is a misreading of him. Finally, he discusses the conservative underpinnings for Evans in light of this intellectual history, with an emphasis on the profoundly conservative instincts …

Church-State Constitutional Issues: Making Sense Of The Establishment Clause And That Godless Court?: Supreme Court Decision On Church-State Relationships (Book Reviews), Michael Ariens

Faculty Articles

No abstract provided.

Using § 1983 To Enforce Title Vi's Section 602 Regulations, Bradford Mank

Faculty Articles and Other Publications

This Article examines the circumstances under which § 1983 suits may be used to enforce agency regulations in general, and Title VI's disparate impact regulations in particular.

The Latest Word From The Supreme Court On Punitive Damages (Symposium: The Thirteenth Annual Supreme Court Review), Leon D. Lazer

Scholarly Works

No abstract provided.

The 2000-2001 Supreme Court Term: Section 1983 Cases, Martin A. Schwartz

Scholarly Works

No abstract provided.

State Sovereign Immunity And Stare Decisis: Solving The Prisoners’ Dilemma Within The Court, Neil S. Siegel

Faculty Scholarship

This Comment argues that the liberal and conservative blocs on the U.S. Supreme Court are embroiled in a Prisoners' Dilemma with respect to whether they should follow precedent on the question of congressional abrogation of state sovereign immunity. The analytical consequence of this strategic situation within the Court is that, over the long run, all of the Justices would more fully realize their views of the merits of Eleventh Amendment cases by demonstrating more--not less--respect for the independent value of stare decisis. This Comment uses game theory to substantiate this claim, after which it offers a potential, contingent solution to …

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.

Constitutional Circularity, Michael B. Abramowicz

GW Law Faculty Publications & Other Works

In supporting the invocation of stare decisis in constitutional cases, the Supreme Court has maintained that its decisions affect how the people conceptualize the government and their rights. Such an argument, which prioritizes contemporary understands of the Constitution over both the intentions of Framers and the nuances of doctrine, suggests that constitutional decisions may affect the meaning of the Constitution itself. In this Article, Professor Abramowicz offers a positive account demonstrating that the Court has used this type of argument, which he dubs “constitutional circularity,” and provides a normative critique. The positive account is relevant not only because it identifies …

The Education Justice: The Honorable Lewis Franklin Powell, Jr., Victoria J. Dodd

Fordham Urban Law Journal

The Honorable Lewis Franklin Powell, Jr. is “the education Justice” of the United States. During his tenure on the U.S. Supreme Court, from 1971 to 1987, Justice Powell authored at least twenty major opinions in education law, in addition to numerous significant concurrences and dissents. Just a sampling of Justice Powell's majority opinions on education could form the bulk of an education law textbook recognizable by any American law student. This Article will explore some of Justice Powell's major Supreme Court rulings in education law. It will also consider how these rulings may have related to aspects of Justice Powell's …

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 …

Reconstructing The Rule Of Law, Robin West

Georgetown Law Faculty Publications and Other Works

The action taken in Bush v. Gore by the five conservative Justices on the United States Supreme Court, Bugliosi argued, was not just wrong as a matter of law, but criminal: It was a malem in se, fully intended, premeditated theft of a national election for the Presidency of the United States. Now, as Balkan and Levinson would argue, this seventh, "prosecutorial" response -- that the Court's action was not just wrong but criminal -- is also not available to a devotee of either radical or moderate indeterminacy. Even assuming both criminal intent and severe harm-a wrongful, specific intent to …

Louis Brandeis And The Race Question, Christopher A. Bracey

GW Law Faculty Publications & Other Works

We live in a culture enamored by our heroes. They are celebrated for their extraordinary accomplishments, and canonized by histories that rarely reflect the true texture of their lives. Legal academics share in these tendencies and, as a result, heroes in the law are often viewed with the same rose-colored glasses accorded to their counterparts in popular culture. The late Louis Brandeis was an Associate Justice on the Supreme Court of the United States from 1916 to 1939. Born to Jewish immigrant parents, he graduated from Harvard Law School, and gained a reputation as America’s “People’s Attorney.” He pioneered an …

Justice Stephen Field: Frontier Justice Or Justice At The Natural Rights Frontier?, John Eastman

John C. Eastman

Produced for a conference by the Claremont Institute commemmorating the 150th Anniversary of California statehood, this article explores the jurisprudential philosophy of one of California's great jurists, Supreme Court Justice Stephen Field. From his decisions dealing with property rights, government regulation, and Chinese exclusion statutes, Justice Field consistently demonstrated a deep understanding of the natural law principles that provide the foundation of legitimacy for republican government.