Law Commons^™

Foreword: What's So Wicked About Lochner?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this brief Foreword to a forthcoming symposium on Lochner v. New York, Professor Randy Barnett asks the question, What's So Wicked About Lochner? Modern Progressives cannot complain about its protection of so-called substantive due process, since they favor just that. Nor can they claim that Lochner violates the original meaning of the Fourteenth Amendment, since these legal analysts by and large reject originalism altogether. This leaves only today's judicial conservatives to adhere to a purified Roosevelt New Deal jurisprudence of disdain for Lochner.

The author answers that Lochner is objectionable precisely because its reliance on the Due …

Solving The Bargaining Democracy Problem Using A Constitutional Hierarchy Of Law, Clas Wihlborg

Business Faculty Articles and Research

In the “bargaining democracy” groups form coalitions that are able to grant benefits to themselves through legislation. These benefits may lack popular support. A constitutional hierarchy of conflicting laws is proposed to resolve this democratic problem. In the hierarchy more “rule-oriented” legislation dominate. The hierarchy would create a momentum of the political process towards more rule-oriented legislation and policy debate. The difficulty of defining a rule operationally is overcome by limiting the task of a constitutional court to simply rank conflicting policy actions in terms of criteria for rules.

War And Uncertainty, Lori Fisler Damrosch

Faculty Scholarship

When the current phase of our conflict with Iraq began in March 2003, much was unknown. Our political leaders based the case for war on the conviction that Iraq possessed weapons of mass destruction (WMD) that had not been eliminated despite twelve years of grinding sanctions. Congress voted in October 2002 to authorize renewed use of military force against Iraq, acting on the basis of representations by the Bush Administration that Iraq had been actively concealing WMD stockpiles and programs from the United Nations inspectors who had a mandate to verify the complete destruction of Iraq's WMD capability. Facts were …

Constitutionalism, Judicial Review, And Progressive Change, Linda C. Mcclain, James E. Fleming

Faculty Scholarship

This paper evaluates arguments made in Ran Hirschl's powerful and sobering book, Towards Juristocracy: The Origins and Consequences of the New Constitutionalism (Harvard, 2004). Studying Canada, Israel, South Africa, and New Zealand, Hirschl aims to dispel what he views as the hollow hopes that constitutionalism and judicial review will bring about progressive change around the world. If Gerald Rosenberg, in his book, The Hollow Hope: Can Courts Bring About Social Change, focused on the hollow hopes of liberals for social change securing, e.g., racial equality (Brown) and women's reproductive freedom (Roe), Hirschl focuses on hollow hopes for progressive economic change …

Is Obtaining An Arrestee's Dna A Valid Special Needs Search Under The Fourth Amendment? What Should (And Will) The Supreme Court Do?, Tracey Maclin

Faculty Scholarship

An increasing number of states are enacting laws authorizing the forcible taking and analysis of DNA from certain categories of arrestees. For example, California's Proposition 69 requires state law enforcement officials to obtain DNA samples from certain arrestees. By 2009, Proposition 69 will require a DNA sample from every adult arrested for or charged with a felony. This article addresses the constitutionality, under the Fourth Amendment, of taking DNA samples from persons subject to arrest. In particular, the article focuses on the statutes of Virginia and Louisiana, which have authorized DNA sampling of persons arrested for violent crimes and sex …

The Present And Future Of Federalism, Bruce Ledewitz

Ledewitz Papers

Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals.

A Constitutional Defence Of The Federal Ban On Human Cloning For Research Purposes, Jocelyn Downie, Jennifer Llewellyn, Françoise Baylis

Articles, Book Chapters, & Popular Press

Parliament's prohibition on cloning in the Assisted Human Reproduction Act has led to divergent views on the validity of the legislation. This article responds to an article in volume 29, no. 2 of this journal by Barbara Billingsley and Timothy Caulfield, who suggested that the federal ban would likely not survive a Charter challenge. Billingsley and Caulfield argued that scientific experiments are expressive acts, deserving of protection under section 2(b) of the Charter, which guarantees freedom of expression. In their view, both the breadth of the legislative objective and the proportionality of the measure would preclude the courts from finding …

Holmes On The Lochner Court, Gerald F. Leonard

Faculty Scholarship

For this symposium on Lochner, I examined the jurisprudence of the man commonly thought to be the Lochner majority's fiercest foe, Justice Oliver Wendell Holmes, Jr. Holmes wrote the famous dissent in Lochner and other cases of the era. But as Barry Cushman notes in his contribution to this symposium, Holmes joined many a Lochner-era majority in striking down any number of economic regulations. Holmes's Fourteenth Amendment opinions suggest: 1) that, while Holmes advocated a somewhat more pointed rule of deference to legislatures than did most of his colleagues, his language in this respect was far less radical than is …

Introduction, David J. Seipp

Faculty Scholarship

Have we come to bury Lochner, or to praise it? Lochner v. New York,' decided 100 years ago, gave its name to an era in which judges struck down popular statutes that regulated hours, wages, and conditions of work, on grounds that such labor regulations violated a constitutional liberty of contract. After 1937, Lochnerism and Lochnerizing were more or less uniformly condemned by judges and law professors alike. Recently, some scholars have tried to resurrect the Lochner approach, presumably as a way to render much of the twentieth-century regulatory state unconstitutional.

Discretion As Delegation: The 'Proper' Understanding Of The Nondelegation Doctrine, Gary S. Lawson

Faculty Scholarship

Does the Constitution limit the extent to which Congress can grant discretion to other actors? The traditional nondelegation doctrine says yes, though advocates of the doctrine strongly disagree about the source of that principle and the location of the line between permissible and impermissible discretion. A number of modern scholars and judges, however, doubt whether the Constitution contains any such principle. This article demonstrates that the Constitution constrains Congress's ability to grant discretion to other actors through the requirement that laws for carrying federal power into execution must be "necessary and proper." The words "necessary" and "proper" have distinct constitutional …

I Want To Live: Medicine Betrayed By Ideology In The Political Debate Over Terri Schaivo, George J. Annas

Faculty Scholarship

The public's view of the political intrusion into the medical care of Theresa Marie Schiavo is well illustrated by two political cartoons. The first, by Tony Auth, reprinted in the Boston Globe shortly after Congress passed a law authorizing intervention by the federal courts, pictures a horde of congressmen charging mindlessly out of the Capitol, all dressed as physicians-one carrying a saw, another an I.V. pole-with the caption, "Coming Soon to a Sickbed Near You . .. [tihe United States Congress." The second, by Tom Toles, published in the Washington Post shortly after the results of the autopsy report were …

In Closing: Fighting Might With Rights, Kent Greenfield

Kent Greenfield

No abstract provided.

Constitutionally Excluded Confessions: Applying America's Lessons To A Democratic Iraq, Joseph Thai

Joseph T Thai

No abstract provided.

Immigration Law: The ‘Plenary Power’ Doctrine, In The Encyclopedia Of The Supreme Court (David Schultz Ed., Facts On File), Anil Kalhan

Anil Kalhan

No abstract provided.

The Crime Drop And Racial Profiling: Toward An Empirical Jurisprudence Of Search And Seizure, Lawrence Rosenthal

Lawrence Rosenthal

No abstract provided.

Rättsliga Ramar För Gränsöverskridande Samarbete. Förvaltningsmyndigheters Internationella Avtalsförhållanden. [Legal Frameworks For Cross-Border Co-Operation: International Agreements Between Administrative Authorities], Vilhelm Persson

Vilhelm Persson

When Swedish public bodies have reasons to contact and co-operate with foreign public bodies, this may give rise to legally complex situations. There are reasons to endeavour to seek solutions adapted to the needs of each individual case. This thesis investigates legal frameworks for such solutions. The investigation in particular deals with binding agreements concluded by Swedish public authorities and municipalities with corresponding types of foreign public bodies. By the conclusion of such agreements more than one legal system may be involved. This thesis deals with Swedish national law and public international law. A question of central concern for this …

Book Review Essay: Canada's Constitutional Cul De Sac, Richard Kay

Richard Kay

Book reivew of 'Constitutional Odyssey: Can Canadians Become a Sovereign People?', by Peter H. Russell (Toronto, University of Toronto Press, 2004).

In Incognito: The Principle Of Double Effect In American Constitutional Law, Edward Lyons

Edward C. Lyons

In Vacco v. Quill, 521 U.S. 793 (1997), the Supreme Court for the first time in American case law explicitly applied the principle of double effect to reject an equal protection claim to physician-assisted suicide. Double effect, traced historically to Thomas Aquinas, proposes that under certain circumstances it is permissible unintentionally to cause foreseen evil effects that would not be permissible to cause intentionally. The court rejected the constitutional claim on the basis of a distinction marked out by the principle, i.e., between directly intending the death of a terminally ill patient as opposed to merely foreseeing that death as …

Knowledge And Power In The Mechanical Firm: Planning For Profit In Austrian Perspective, Richard Adelstein

Richard Adelstein

A theory of central planning employing Austrian themes and applied to private firms and Taylorism.

American Legal Education, Robert Bloom

Robert M. Bloom

No abstract provided.

The Worst Way Of Selecting Judges—Except All The Others That Have Been Tried, Michael R. Dimino

Michael R Dimino

The Non-Political Branch (Reviewing Lee Epstein & Jeffrey A. Segal, Advice And Consent: The Politics Of Judicial Appointments (2005)), Michael R. Dimino

Michael R Dimino

The Unconstitutionality Of Class-Based Statutory Limitations On Presidential Nominations: Can A Man Head The Women's Bureau At The Department Of Labor?, Donald J. Kochan

Donald J. Kochan

Can a man be the Director of the Women’s Bureau at the Department of Labor? According to Congress, the answer is no. Congress has stated by statute that a woman must be the nominee to head the Women’s Bureau at the Department of Labor. The key questions are: (1) even if it makes sense on policy grounds, is it constitutional? and (2) if we accept such a statutory limitation power what are the potential precedential consequences for other appointment matters? This Article’s case study is particularly relevant today, examining just how far Congress can go to limit the discretion of …

Realism, Freedom, And The Integral Development Of The Human Person: A Catholic View Of Education, Michael Scaperlanda

Michael A. Scaperlanda

No abstract provided.

Illusions Of Liberty And Equality: An "Alien's" View Of Tiered Scrutiny, Ad Hoc Balancing, Governmental Power, And Judicial Imperialism, Michael Scaperlanda

Michael A. Scaperlanda

No abstract provided.

Human Trafficking In The Heartland: Greed, Visa Fraud, And The Saga Of 53 Indian Nationals "Enslaved" By A Tulsa Company, Michael Scaperlanda

Michael A. Scaperlanda

No abstract provided.

Subsidiarity, Federalism, And Federal Prosecution Of Street Crime, John F. Stinneford

John F. Stinneford

No abstract provided.

How The Confrontation Clause Defeated The Rape Shield Statute: Acquaintance Rape, The Consent Defense And The Nj Supreme Court's Ruling In State V. Garron, James B. Johnston

James B Johnston

Rape shield statutes are designed to limit a judge's discretion in allowing information about a rape victim's sexual past into evidence at trial. This is done to prevent dual victimization of the rape victim. First during the rape and then at trial. Despite rape shield protections the NJ Supreme Court ruled in State v. Garron that a victim's prior flirtations with the attacker, some of which occurred 6 years before the rape was admissible. The court overturned the attacker's guilty verdict and he went free. Advocates for rape victims rights were outraged. This article provides an analysis and critique of …

Protecting The Right To Effective Assistance Of Capital Postconviction Counsel: The Scope Of The Constitutional Obligation To Monitor Counsel Performance, Celestine Richards Mcconville

Celestine Richards McConville

This article is an outgrowth of an idea developed by the author in a prior article, The Right to Effective Assistance of Capital Postconviction Counsel: Constitutional Implications of Statutory Grants of Capital Counsel, 2003 Wisconsin Law Review 31. The prior article argued that the government's decision to provide capital postconviction counsel triggers a due process-based obligation to make the right to counsel meaningful, which essentially means that the right to counsel must include the right to effective assistance of counsel. In the postconviction context, the effectiveness guarantee requires that the government must monitor counsel's performance to ensure, to the extent …

Vineet Narain V Union Of India: A Court Of Law And Not Justice: Is The Indian Supreme Court Bound By The Indian Constitution, Shubhankar Dam

Shubhankar Dam

The last twenty five years are an “impressive” chronicle of the Indian Supreme Court in action. Its novel functioning has changed the internal dynamics of Indian polity in a manner unknown to constitutional democracies. From an institution entrusted with the task of adjudicating disputes between parties, the Indian Supreme Court has transformed itself into an institution enjoined to promote the ideals of a socio-economic and political justice. Its prior role as an “adjudicator” has undergone a reappraisal. The judges therein are no more adjudicators but activists, energetically contributing to the accomplishment of India's constitutional vision. In this new creation, they …