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Full-Text Articles in Law
The War On Terrorism And The Constitution, Michael I. Meyerson
The War On Terrorism And The Constitution, Michael I. Meyerson
All Faculty Scholarship
Discussion of civil liberties during wartime often omit the fact that there can be no meaningful liberty at all if our homes and offices are bombed or our loved ones are killed or injured by acts of terror. The Government must be given the tools necessary to accomplish its vital mission. The first priority must be to win the war against terrorism. There are, however, other priorities. The United States, in its just battle for freedom, must ensure that freedom is preserved during that battle as well. Moreover, care must be taken so that an exaggerated cry of “emergency” is …
Choice Programs And Market-Based Separationism, Paul E. Salamanca
Choice Programs And Market-Based Separationism, Paul E. Salamanca
Law Faculty Scholarly Articles
The Supreme Court's recent decision in Zelman v. Simmons-Harris appears to clear the way for a wide variety of educational and charitable choice plans. In this decision, the Court upheld against Establishment Cause Challenge a formally neutral school choice program that encompassed a wide variety of options in the public and private sector, including private sectarian schools. The Court reasoned that, when the government makes aid available to a broad class of recipients without regard to their religious or non-religious affiliation, and when the recipients have a genuine choice as to whether to obtain that aid from a religious or …
The Rehnquist Court, Structural Due Process, And Semisubstantive Constitutional Review, Dan T. Coenen
The Rehnquist Court, Structural Due Process, And Semisubstantive Constitutional Review, Dan T. Coenen
Scholarly Works
Semisubstantive review, as I use that label, entails four key features. First, the subject matter of judicial inquiry is not the process applied in adjudicating a discrete dispute; rather, the matter at hand is the constitutionality of a statute or other generalized expression of legal policy. Second, some procedural omission by the lawmaker -- rather than an incurably substantive flaw in the end product of its work -- lays the groundwork for a judicial intervention that invalidates the challenged rule or negates how that rule otherwise would operate. It may be, for example, that a federal statute read as a …
The New Deal ‘Constitutional Revolution’ As An Historical Problem, Edward A. Purcell Jr.
The New Deal ‘Constitutional Revolution’ As An Historical Problem, Edward A. Purcell Jr.
Articles & Chapters
No abstract provided.
A Roundtable Discussion With Stephen L. Carter & Michael J. Gerhardt, Thomas E. Baker
A Roundtable Discussion With Stephen L. Carter & Michael J. Gerhardt, Thomas E. Baker
Faculty Publications
Transcript of a discussion regarding the United States Supreme Court, the Supreme Court justices and justice nominees, the Senate process for confirming nominees and related issues such as fitness to serve on the court and judicial activism.
Justice By The Numbers: The Supreme Court And The Rule Of Four-Or Is It Five?, Ira Robbins
Justice By The Numbers: The Supreme Court And The Rule Of Four-Or Is It Five?, Ira Robbins
Articles in Law Reviews & Other Academic Journals
INTRODUCTION:In the early hours of April 14, 2000, Robert Lee Tarver died in Alabama's electric chair, even though four Justices of the United States Supreme Court had voted to review the merits of his case. This situation is not unique. Each year, practitioners and pro se litigants alike petition the Supreme Court without fully knowing the rules pursuant to which the Court will decide their client's, or their own, fate. The reason is that the Supreme Court operates under two sets of rules-those that are published and those that are not. The former specify This Article is based on a …
New Issues Arising Under Section 1983, Martin A. Schwartz
New Issues Arising Under Section 1983, Martin A. Schwartz
Scholarly Works
No abstract provided.
Youngstown: Pages From The Book Of Disquietude, Philip Chase Bobbitt
Youngstown: Pages From The Book Of Disquietude, Philip Chase Bobbitt
Faculty Scholarship
The Youngstown holding is widely admired. One reads with pride those passages in which the Supreme Court denies to a president with whom they are in considerable political sympathy the power to enlarge executive authority by militarizing the homeland. And yet one wonders, as we confront in the 21st century a lethal foreign enemy who has demonstrated the ability to infiltrate and assault the domestic environment, precisely what restraints ought to govern a presidential response to that enemy.
Bush V. Gore As An Equal Protection Case, Richard Briffault
Bush V. Gore As An Equal Protection Case, Richard Briffault
Faculty Scholarship
In Bush v. Gore, the United States Supreme Court applied the Equal Protection Clause to the mechanics of state election administration. The Court invalidated the manual recount of the so-called undervote – that is, ballots that vote-counting machinery had found contained no indication of a vote for President – which the Florida Supreme Court had ordered to determine the winner of Florida's vote for presidential electors in the 2000 presidential election. The United States Supreme Court reasoned that the principles it had previously articulated in applying the Equal Protection Clause to the vote were violated by the Florida court's …
How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw, Jr.
How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw, Jr.
Vanderbilt Law School Faculty Publications
Professors George and Pushaw review Maxwell L. Stearns’ book, “Constitutional Process: A Social Choice Analysis of Supreme Court Decision-making.” In his book, Stearns demonstrates that the U.S. Supreme Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing “social choice” economic theory, Professor Stearns argues that the Court strives to formulate rules that promote rationality and fairness. Perhaps the greatest strength of Stearns’ book is that he presents a grand unified theory of the Court’s rules of constitutional process and the resulting development of doctrine. This strength can also be a weakness, …
Congress's Power To Promote The Progress Of Science: Eldred V. Ashcroft, Lawrence B. Solum
Congress's Power To Promote The Progress Of Science: Eldred V. Ashcroft, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
This essay investigates the issues raised by Eldred v. Ashcroft, in which the Supreme Court may decide whether the Copyright Term Extension Act (CTEA) exceeds Congress's authority under that clause. The essay frames the issues in Eldred v. Ashcroft by discussing the history of copyright legislation in general and the CTEA in particular and then summarizing the procedural history of Eldred v. Ashcroft. The essay then undertakes a detailed investigation of the text of the Intellectual Property Clause, with a special emphasis on the interpretation of the clause by the first Congress and early judicial decisions. Three elements …
Treaties And The Eleventh Amendment, Carlos Manuel Vázquez
Treaties And The Eleventh Amendment, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
The Supreme Court's recent invigoration of federalism doctrine has revived a question that had long lain dormant in constitutional law: whether and to what extent federalism limits apply to exercises of the Treaty Power. In the days before the famous switch in time that saved nine, the Court in Missouri v. Holland upheld a statute passed by Congress to implement a treaty even though it assumed that the statute would exceed Congress's legislative power under Article I in the absence of the treaty. The significance of this holding abated considerably when the Court embraced a broader interpretation of the Commerce …