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Open Access. Powered by Scholars. Published by Universities.®

2012

Litigation

Selected Works

Constitutional Law

Articles 1 - 2 of 2

Full-Text Articles in Law

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai Aug 2012

Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai

Robert L Tsai

This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …


The Constitutional Bounding Of Adjudication: A Fuller(Ian) Explanation For The Supreme Court's Mass Tort Jurisprudence, Donald G. Gifford Apr 2012

The Constitutional Bounding Of Adjudication: A Fuller(Ian) Explanation For The Supreme Court's Mass Tort Jurisprudence, Donald G. Gifford

Donald G Gifford

In this Article, I argue that the Supreme Court is implicitly piecing together a constitutionally mandated model of bounded adjudication governing mass torts, using decisions that facially rest on disparate constitutional provisions. This model constitutionally restricts common law courts from adjudicating the rights, liabilities, and interests of persons who are neither present before the court nor capable of being defined with a reasonable degree of specificity. I find evidence for this model in the Court’s separate decisions rejecting tort-based climate change claims, global settlements of massive asbestos litigation, and punitive damages awards justified as extra-compensatory damages. These new forms of …