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Full-Text Articles in Law

Critical Constitutionalism Now, Louis Michael Seidman Jan 2006

Critical Constitutionalism Now, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

The starting point for this essay is the claim that if the texts that critical scholars studied are unstable over time, then this must also be true of the studies themselves. There is no reason to suppose that the critical perspective, uniquely among all possible perspectives, reflects timeless and contextless truth. The question I want to ask, then, is what meaning the critical perspective has for us now in our new and dramatically transformed environment. I proceed in four parts. First, I address the meaning that critical scholars attributed to constitutional law in the late twentieth century. Second, I describe …


Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman Jan 2006

Women And Law: A Comparative Analysis Of The United States And Indian Supreme Courts’ Equality Jurisprudence, Eileen Kaufman

Scholarly Works

No abstract provided.


The Rhetoric Of Necessity (Or, Sanford Levinson's Pinteresque Conversation), Kevin J. Heller Jan 2006

The Rhetoric Of Necessity (Or, Sanford Levinson's Pinteresque Conversation), Kevin J. Heller

Georgia Law Review

It may seem odd to begin a discussion of whether the President should have the power to act extraconstitutionally in times of necessity with a quote from The Dwarfs. As I researched this Comment, though, I could not escape the uneasy feeling that I was witnessing what could only be described as a Pinteresque conversation-a conversation in which Professor Levinson and his interlocutors, "while exchanging remarks apparently on a common topic, and using mutually comprehensible vocabulary, are revealed as experiencing a profound failure to communicate with one another."2 Professor Levinson wants to find a workable balance between constitutional restraints and …


Some Reflections On The Symposium: Judging, The Classical Legal Paradigm And The Possible Contributions Of Science, Christina E. Wells Oct 2005

Some Reflections On The Symposium: Judging, The Classical Legal Paradigm And The Possible Contributions Of Science, Christina E. Wells

Faculty Publications

One theme running through the many excellent contributions to this symposium involves the myriad influences on judicial decision-making. As Professor Wrightsman notes, Supreme Court Justices' personal characteristics may affect their ability to influence colleagues and, consequently, the outcome of Supreme Court decisions. Professor Ruger observes that judges have both attitudinal and jurisprudential preferences that may change over time, affecting legal outcomes differently as time passes. Professor Sisk similarly notes that judges' personal values and experiences influence their decision-making. These observations are consistent with those of numerous other scholars, who find wide-ranging and diverse influences on the judicial resolution of legal …


The Historical Amendability Of The American Constitution: Speculations On An Empirical Problematic, Darren R. Latham Oct 2005

The Historical Amendability Of The American Constitution: Speculations On An Empirical Problematic, Darren R. Latham

American University Law Review

No abstract provided.


The Treaty Establishing A Constitution For Europe And The Democratic Legitimacy Of The European Union, Elisabeth Zoller Jul 2005

The Treaty Establishing A Constitution For Europe And The Democratic Legitimacy Of The European Union, Elisabeth Zoller

Indiana Journal of Global Legal Studies

No abstract provided.


A Government Of Limited Powers, Carl E. Schneider Jul 2005

A Government Of Limited Powers, Carl E. Schneider

Articles

Roscoe C. Filburn owned a small farm in Ohio where he raised poultry, dairy cows, and a modest acreage of winter wheat. Some wheat he fed his animals, some he sold, and some he kept for his family's daily bread. The Agricultural Adjustment Act of 1938 limited the wheat Mr. Filburn could grow without incurring penalties, but his 1941 crop exceeded those limits. Mr. Filburn sued. He said Claude Wickard, the Secretary of Agriculture, could not enforce the AAI's limits because Congress lacked authority to regulate wheat grown for one's own use. He reasoned: In our federal system, the states …


Noncompete Clauses In Georgia: An Economic Analysis, Jeffrey T. Rickman Jun 2005

Noncompete Clauses In Georgia: An Economic Analysis, Jeffrey T. Rickman

Georgia State University Law Review

No abstract provided.


Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben Apr 2005

Democracy And Dispute Resolution: The Problem Of Arbitration, Richard C. Reuben

Faculty Publications

Scholars have approached arbitration, especially under the Federal Arbitration Act, from a variety of perspectives, including doctrinal, historical, empirical, and practical. One aspect that has not yet been fully considered, however, is the relationship between arbitration and constitutional democracy. Yet, as a dispute-resolution process that is often sanctioned by the government, that sometimes inextricably intertwines governmental and private conduct, and that derives its legitimacy from the government, it is appropriate--indeed, our responsibility--to ask whether arbitration furthers the goals of democratic governance. It is only sensible that state-supported dispute resolution in a democracy should strengthen, rather than diminish, democratic governance and …


Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin Apr 2005

Michigan Supreme Court Overturns Landmark Eminent Domain Case, Patricia E. Salkin

Scholarly Works

No abstract provided.


Perdue V. Baker: Who Has The Ultimate Power Over Litigation On Behalf Of The State Of Georgia--The Governor Or The Attorney General, Erin L. Penn Mar 2005

Perdue V. Baker: Who Has The Ultimate Power Over Litigation On Behalf Of The State Of Georgia--The Governor Or The Attorney General, Erin L. Penn

Georgia State University Law Review

No abstract provided.


Federal Judicial Selection: The First Decade, Maeva Marcus Mar 2005

Federal Judicial Selection: The First Decade, Maeva Marcus

University of Richmond Law Review

No abstract provided.


Falsities On The Senate Floor, John Cornyn Mar 2005

Falsities On The Senate Floor, John Cornyn

University of Richmond Law Review

No abstract provided.


Video Games As A Protected Form Of Expression, Paul E. Salamanca Jan 2005

Video Games As A Protected Form Of Expression, Paul E. Salamanca

Law Faculty Scholarly Articles

Video games, like motion pictures, failed to qualify for First Amendment protection until well after they emerged as a medium. Today, a number of courts have held that such games constitute a form of expression and do not fall into any recognized category of unprotected speech. Nevertheless, a number of commentators have called for limited constitutional protection for video games, predicating their arguments on a variety of grounds, including the alleged deleterious effects of such games on children. This Article responds to these commentators and defends recent decisions extending protection to video games.


Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne Jan 2005

Reflections On The Teaching Of Constitutional Law, William W. Van Alstyne

Faculty Scholarship

No abstract provided.


Compromising Liberty: A Structural Critique Of The Sentencing Guidelines, Jackie Gardina Jan 2005

Compromising Liberty: A Structural Critique Of The Sentencing Guidelines, Jackie Gardina

University of Michigan Journal of Law Reform

This Article contends that the federal sentencing guidelines-whether mandatory or discretionary-violate the constitutional separation of powers by impermissibly interfering with a criminal jury's constitutional duty to act as a check against government overreaching. This Article posits that the inclusion of the criminal jury in Article III of the Constitution was intended as an inseparable element of the constitutional system of checks and balances. This Article also submits a proposal for restoring the constitutional balance through the creation of a "guideline jury system" within the current guideline structure. The implementation of a guideline jury system would fill the constitutional void created …


Does The Constitution Apply To The Actions Of The United States Anti-Doping Agency?, Dionne L. Koller Jan 2005

Does The Constitution Apply To The Actions Of The United States Anti-Doping Agency?, Dionne L. Koller

Saint Louis University Law Journal

No abstract provided.


Worth Doing Well- The Improvable European Union Constitution, Stephen C. Sieberson Jan 2005

Worth Doing Well- The Improvable European Union Constitution, Stephen C. Sieberson

Michigan Journal of International Law

As background for this critique of the Constitution, Part II of this Article provides a brief overview of the existing EU Treaties, their shortcomings, and the political processes that culminated in the creation of the new Constitution. Of particular interest are certain goals articulated for the new document, such as the desire to replace the complex Treaties with a simpler, more approachable instrument. Part III is a summary of the Constitution's textual content, details that are necessary to illuminate the analysis that follows. Part IV offers a critical review of the awkward manner in which the Constitution is organized. In …


It’S More Than A Constitution, Mark R. Killenbeck Jan 2005

It’S More Than A Constitution, Mark R. Killenbeck

Saint Louis University Law Journal

No abstract provided.


Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen Jan 2005

Article 9 Of The Constitution Of Japan And The Use Of Procedural And Substantive Heuristics For Consensus, Mark A. Chinen

Michigan Journal of International Law

This Article’s purpose is to examine the revision debates through the lens of recent scholarship on constitutional decisionmaking to see what lessons might be drawn about constitutionalism in Japan and elsewhere. In Part I, the author discusses Article 9's text and interpretation and focus on three controversies: first, Japan's ability to use force to defend itself and the related issue of the constitutionality of the Japan Self Defense Force (SDF); second, Japan's ability to engage in collective self-defense, which impacts the state's security relationship with the United States under the U.S.-Japan Mutual Security Agreement; and finally, Japan's ability to participate …


Limited Powers In The Looking-Glass: Otiose Textualism, And An Empirical Analysis Of Other Approaches, When Activists In Private Shopping Centers Claim State Constitutional Liberties, Richard J. Peltz Jan 2005

Limited Powers In The Looking-Glass: Otiose Textualism, And An Empirical Analysis Of Other Approaches, When Activists In Private Shopping Centers Claim State Constitutional Liberties, Richard J. Peltz

Cleveland State Law Review

This Article examines closely a narrow range of highly factually analogous cases, in which state constitutional rights are asserted despite a clear lack of entitlement to assert any federal constitutional claim. Specifically, the cases selected are those in which private persons assert a right to conduct expressive activity, including electoral activity, in private shopping centers during hours when the properties are held open to the general public. These cases may be referred to colloquially as “the mall cases.” Selected here are only those cases that were decided after the federal question became clear. The Article first inquires into the role …


The Constitutional Failing Of The Anticybersquatting Act, Ned Snow Jan 2005

The Constitutional Failing Of The Anticybersquatting Act, Ned Snow

Faculty Publications

Eminent domain and thought control are occurring in cyberspace. Through the Anticybersquatting Consumer Protection Act (ACPA), the government transfers domain names from domain-name owners to private parties based on the owners' bad-faith intent. The owners receive no just compensation. The private parties who are recipients of the domain names are trademark holders whose trademarks correspond with the domain names. Often the trademark holders have no property rights in those domain names: trademark law only allows mark holders to exclude others from making commercial use of their marks; it does not allow mark holders to reserve the marks for their own …


Federal Land Retention And The Constitution's Property Clause: The Original Understanding, Robert G. Natelson Jan 2005

Federal Land Retention And The Constitution's Property Clause: The Original Understanding, Robert G. Natelson

University of Colorado Law Review

No abstract provided.


Constitutional Accommodation And The Rule(S) Of Courts, Lorne Sossin Jan 2005

Constitutional Accommodation And The Rule(S) Of Courts, Lorne Sossin

Articles & Book Chapters

Constitutional authority for the development and implementation of the rules of court lies with both the legislature, by its statutory power, and the judiciary, by the constitutional principles of judicial independence. The court rules in question here are those that govern court accessibility as well as the roles and responsibilities of parties in civil litigation. The three existing models of rule-making are court-led, where a majority of government officials, and collaborative, which lacks an evident majority of either. These rule-making bodies do not control court fees, the executive does, but in a system with any model, the judiciary always has …


Constitutional Shadows: The Missing Narrative In Indian Law, Frank Pommersheim Jan 2005

Constitutional Shadows: The Missing Narrative In Indian Law, Frank Pommersheim

Faculty Publications

No abstract provided.


The Impact Of International Human Rights Developments On Sexual Minority Rights, Arthur S. Leonard Jan 2005

The Impact Of International Human Rights Developments On Sexual Minority Rights, Arthur S. Leonard

NYLS Law Review

No abstract provided.


If I Implore You And Order You To Set Me Free, Robert Blecker Jan 2005

If I Implore You And Order You To Set Me Free, Robert Blecker

NYLS Law Review

No abstract provided.


Groh V. Ramirez: Strengthening The Fourth Amendment Particularity Requirement, Weakening Qualified Immunity, C. Brandon Rash Jan 2005

Groh V. Ramirez: Strengthening The Fourth Amendment Particularity Requirement, Weakening Qualified Immunity, C. Brandon Rash

University of Richmond Law Review

No abstract provided.


Does A Computer's Choice Of Where To Reside Implicate The Dormant Commerce Clause?, Robert J. Firestone Jan 2005

Does A Computer's Choice Of Where To Reside Implicate The Dormant Commerce Clause?, Robert J. Firestone

NYLS Law Review

No abstract provided.


Holmes On The Lochner Court, Gerald F. Leonard Jan 2005

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 …