Law Commons^™

Separation Of Santa And State Is Smart, Fair, Alan E. Garfield

Alan E Garfield

No abstract provided.

Running Cars, Constitutions And Metaphors Into The Ground, Mark A. Graber

Mark Graber

Professor Sanford Levinson frequently analogizes the Constitution of the United States to a vehicle that desperately needs repairs. “[R]elying on the present Constitution.” he writes, “is similar to driving a car with very bad brakes and slick tires.” Much commentary on Our Undemocratic Constitution implicitly challenges the automotive metaphor. The Constitution of the United States, supporters profess, is not really as bad as Levinson would have us believe. The following pages take a road less traveled. Ancient constitutional institutions in the United States are suffering from severe wear and tear. Nevertheless, decisions to drive a comparatively unsafe car are often …

The Constitutional Canon As Argumentative Metonymy, Ian Bartrum

William & Mary Bill of Rights Journal

No abstract provided.

Displacement, Timothy Zick

Popular Media

No abstract provided.

Constitutional Solipsism: Toward A Thick Doctrine Of Article Iii Duty; Or Why The Federal Circuits’ Nonprecedential Status Rules Are (Profoundly) Unconstitutional, Penelope J. Pether

Working Paper Series

Constitutional Solipsism is the fourth in a series of articles on aspects of the private judging practices which have come to characterize the U.S. state and federal courts since the late 1950s. The first, Inequitable Injunctions: The Scandal of Private Judging in the U.S. Courts, 56 STAN. L. REV. 1435 (2004) gave a critical historical account of the development of the “practices of private judging” in U.S. Courts. Take a Letter, Your Honor: Outing the Judicial Epistemology of Hart v. Massanari, 62 WASH. & LEE L. REV. 1553 (2005), analyzed the development of a distinctive U.S. theory of precedent. Sorcerers, …

Animal Cruelty Vs. Freedom Of Speech, Alan E. Garfield

Alan E Garfield

No abstract provided.

Section 5: Individual Rights, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.

La Incidencia De La Acción De Tutela En Las Políticas Públicas, Fernando Castillo Cadena

Fernando Castillo Cadena

No abstract provided.

Our Schizoid Approach To The United States Constitution: Competing Narratives Of Constitutional Dynamism And Stasis, Sanford Levinson

Indiana Law Journal

Jerome Hall Lecture at the Indiana University Maurer School of Law - Bloomington on October 3, 2008

Rethinking Women And The Constitution: An Historical Argument For Recognizing Constitutional Flexibility With Regards To Women In The New Republic, Samantha Ricci

William & Mary Journal of Race, Gender, and Social Justice

No abstract provided.

The Future Of Local News Reporting, Alan E. Garfield

Alan E Garfield

No abstract provided.

Regulatory Takings: A Chronicle Of The Construction Of A Constitutional Concept, Garrett Power

Garrett Power

In the American constitutional system the sovereign has the power to enact “regulations which are necessary to the common good and general welfare.” But the Fifth Amendment to the United States Constitution proscribes that : “No person shall be . . . deprived of . . . property, without due process of law; nor shall private property be taken for public use, without just compensation.” And the question of whether a sovereign regulation has “taken” private property without just compensation has puzzled the United States Supreme Court for over two hundred years in over four hundred cases. This paper chronicles …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions. 2008 Edition., Garrett Power

Garrett Power

Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions (2008) is electronically published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in Land Use Control and Environmental Law courses. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text consists of non-copyrighted material and professors and students are free to use it in whole or part. The author requests …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions. 2009 Edition., Garrett Power

Garrett Power

Constitutional Limitations on Land Use Controls, Environmental Regulations and Governmental Exactions (2009) is electronically published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in Land Use Control and Environmental Law courses. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text consists of non-copyrighted material and professors and students are free to use it in whole or part. The author requests …

A Prayer For Constitutional Comparativism In Eighth Amendment Cases, David C. Gray

David C. Gray

No abstract provided.

Recent Decisions, Phoebe A. Haddon

Phoebe A. Haddon

No abstract provided.

An Essay On The Ninth Amendment: Interpretation For The New World Order, Phoebe A. Haddon

Phoebe A. Haddon

No abstract provided.

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Akron Law Faculty Publications

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which …

Ink Blot Or Not: The Meaning Of Privileges And/Or Immunities, Richard Aynes

Richard L. Aynes

This article examines the meaning of the terms privileges and immunities as used in Article IV of the U.S. Constitution and the Fourteenth Amendment. It begins by tracing the American use of the terms to April 10, 1606 in the first Charter of Virginia. Building upon the work of other scholars and citing original documents, it concludes that these words has a well-established meaning as “rights” well before the Fourteenth Amendment was adopted. The article notes that in Justice Miller’s decision in the Slaughter-House Cases he refers to the privileges and immunities of Corfield v. Coryell as “those rights which …

Abortion Across State Lines, Joseph W. Dellapenna

Working Paper Series

In this Article, I propose to analyze conflicts of law precedents and theory to explore the extent to which a state can apply its law on abortion to abortions performed outside the state but bearing a significant connection to the state. In attempting to resolve such questions, we enter into the domain of choice of law, part of the field of conflicts of law. This domain is notoriously unstable and contested. This instability allows legal commentators to project their attitudes towards abortion (and many other matters) in analyzing and construing the relevant authorities to resolve choice of law issues. I …

The Countermajoritarian Difficulty: From Courts To Congress To Constitutional Order, Mark A. Graber

Mark Graber

This review documents how scholarly concern with democratic deficits in American constitutionalism has shifted from the courts to electoral institutions. Prominent political scientists are increasingly rejecting the countermajoritarian difficulty as the proper framework for studying and evaluating judicial power. Political scientists, who study Congress and the presidency, however, have recently emphasized countermajoritarian difficulties with electoral institutions. Realistic normative appraisals of American political institutions, this emerging literature on constitutional politics in the United States maintains, should begin by postulating a set of democratic and constitutional goods, determine the extent to which American institutions as a whole are delivering those goods, and …

The Genetic Information Nondiscrimination Act Of 2008: A Case Study Of The Need For Better Congressional Responses To Federalism Jurisprudence, Harper Jean Tobin

Harper Jean Tobin

The Genetic Information Nondiscrimination Act of 2008 (GINA) is the first new civil rights statute enacted since the “federalism revolution” of 1995-2001, in which the Supreme Court announced new limitations on congressional authority. Among other things, these decisions invalidated civil rights remedies against states, declaring that Congress had failed to amass sufficient evidence of the need for legislation. Although passed in the shadow of these decisions, GINA’s limited legislative history makes it vulnerable to attack – potentially limiting its protections for millions of state employees. States will likely attack GINA on two grounds: first, that Congress relied only on its …

The Pros And Cons Of Politically Reversible 'Semisubstantive' Constitutional Rules, Dan T. Coenen

Scholarly Works

Most observers of constitutional adjudication believe that it works in an all-or-nothing way. On this view, the substance of challenged rules is of decisive importance, so that political decision makers may resuscitate invalidated laws only by way of constitutional amendment. This conception of constitutional law is incomplete. In fact, courts often use so-called “semisubstantive” doctrines that focus on the processes that nonjudicial officials have used in adopting constitutionally problematic rules. When a court strikes down a rule by using a motive-centered or legislative-findings doctrine, for example, political decision makers may revive that very rule without need for a constitutional amendment. …

Maryland And The Constitution Of The United States: An Introductory Essay, William L. Reynolds

William L. Reynolds

The State of Maryland and the attorneys who practice in it have played a profound role in the history of the Constitution of the United States. That relationship should not surprise anyone: after all, Maryland was one of the original thirteen states, and its proximity to the nation’s capitol ensured that its lawyers would play an active role in the bar of the Supreme Court. Although the case names alone would make that history apparent – McCulloch v. Maryland, Brown v. Maryland, Federal Baseball – I am not aware of a serious scholarly effort to bring that history to the …

Luther Martin, Maryland And The Constitution, William L. Reynolds

William L. Reynolds

Reviews the life and contributions of Maryland lawyer and scholar Luther Martin (1748-1826).

Executive Authority To Reform Health: Options And Limitations, Madhu Chugh

O'Neill Institute Papers

Presidential power has provoked increasingly vigorous debate since the turn of this century. In recent years, scholars and lawyers have been grappling with how Congress's dictates may limit the President's Commander-in-Chief power to detain enemy combatants at Guantanamo Bay, to fight wars abroad, and to conduct intelligence activities at home. But policymakers have not yet explored the many possibilities for invoking the President's "Take Care" power to change health care policy.

This paper explores the scope and limits of President Barack Obama's ability to invoke his executive authority to reform health care. Specifically, it identifies ways the Obama Administration can …

The Price Of Fame: Brown As Celebrity, Mark A. Graber

Mark Graber

This essay examines the history of Brown I, Brown II, and Bolling in the Supreme Court of the United States. Enduring precedents, the analysis suggests, go through three stages. In the first stage, they fight for survival. This describes Brown during the first decade after that decision was handed down. No Supreme Court Justice asserted, “Brown should be overruled,” but many citations to Brown came in the context of political efforts to reverse or marginalize that decision. In the second stage, precedents fight for extension. This describes Brown in the later Warren and Burger years. Civil rights activists insisted that …

The Mexican Constitution And Its Safeguards Against Foreign Investments, Álvaro Ramírez Martínez

Cornell Law School Inter-University Graduate Student Conference Papers

Every state has safeguards against foreign investment in its country. Most of the times these safeguards are contained in a main document which governs said countries. This document can take the form of a Constitution.

The Mexican constitution contains a safeguard against foreign investments in Article 27, where it is stated that the Mexican state can expropriate private property among other things, due to public interest. Any expropriation must be followed by an indemnification. The price to pay as indemnification shall not exceed the assessment for tax purposes.

Mexico has an invaluable opportunity to attract foreign investments but it must …

Matters Of Judgment: The "Forum Of Principle" Revisited, Mark A. Graber

Mark Graber

No abstract provided.

Equality, Conscience, And The Liberty Of The Church: Justifying The Controversiale Per Controversialius, Patrick Mckinley Brennan

Working Paper Series

This paper considers the central normative claim of Martha Nussbaum’s Liberty of Conscience: In Defense of America’s Tradition of Religious Equality, viz., that the U.S. Constitution’s religion clauses should be construed to provide equal (and extensive) protection to the vulnerable human faculty called conscience. The paper argues that Nussbaum’s argument from Rawlsian political liberalism that leads to her normative constitutional claim amounts, perversely, to an attempt to justify the controversial by the more controversial. The paper goes on to argue that while equality and conscience are concepts that are reasonably contested, Nussbaum illegitimately gives them priority over the also reasonably …