Law Commons^™

Mandatory Hiv Screening Of Newborns: A Proposition Whose Time Has Not Yet Come , Suzanne M. Malloy

American University Law Review

No abstract provided.

Sandin V. Conner: The Supreme Court’S Narrowing Of Prisoners’ Due Process And The Missed Opportunity To Discover True Liberty , Philip W. Sbaratta

Cornell Law Review

No abstract provided.

The Damaging Consequences Of The Rehnquist Court's Commitment To Color-Blindness Versus Racial Justice , Frank R. Parker

American University Law Review

No abstract provided.

Pragmatism And Parity In Appointments, Yxta Maya Murray

Michigan Journal of Gender & Law

This review uses Carter's two foci as a springboard for analyzing the Article II, Section II appointment process. First, Carter's discussion of indecency in modern appointments may be a valuable theoretical insight into the process instead of a mere sociological observation. "Indecency" in appointments, or what is known as "borking" in Carter parlance, may also be a symptom of race and gender bias in the administration of the Article II, Section II power. To ameliorate the effects of this bias, I suggest the incorporation of pragmatism (a thread of philosophical and legal thought) and parity concepts into the existing appointments …

United States Supreme Court: 1995 & 1996 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot

LLM Theses and Essays

Courts of industrialized nations are often faced with adjudication of cases which involve foreign components. It is common for those courts to be asked by individuals or legal entities from a transnational environment to adjudicate with regard to some elements already adjudged in a different legal system as if it were a local judgment. The question that arises is how effects should be given when dealing with prior adjudications. Most countries agree to recognize some effects determined by foreign jurisdictions, as long as those determinations meet standards that guarantee proper integration of the foreign decision into the domestic setting. These …

Preventing Sexual Violence: Setting Principled Constitutional Boundaries On Sex Offender Commitments, Eric S. Janus

Indiana Law Journal

No abstract provided.

Originalism And Indeterminacy, Thomas B. Mcaffee

Scholarly Works

Perhaps the most universal objection to originalism is that it is impossible; that is, the materials relied upon by originalists simply do not yield determinant answers to any worthwhile questions. This indeterminacy objection lacks significant force for at least three reasons. First, the claim that the interpretive materials are always indeterminate vastly overstates the extent and importance of the uncertainties involved; consequently, originalism's critics understate the importance of the originalist canon as a tool for reducing the degree of indeterminacy in constitutional interpretation. Once it becomes clear that originalist methodology can provide some definitive answers, even if significant indeterminacy remains, …

Federalism And The Protection Of Rights: The Modern Ninth Amendment’S Spreading Confusion, Thomas B. Mcaffee

Scholarly Works

Blindness to a basic understanding of the framers' design of our federal structure is largely responsible for the confusion that surrounds our understanding of the Ninth Amendment. The Ninth Amendment reads: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” In Griswold v. Connecticut, Justices Black and Stewart explained in separate dissenting opinions that the Ninth Amendment's reference to the other rights “retained by the people” alluded to the collective and individual rights the people “retained” by virtue of granting limited, enumerated powers to the national government. …

Theorists' Belief: A Comment On The Moral Tradition Of American Constitutionalism, Jospeh Vining

Articles

The Moral Tradition of American Constitutionalism is one of those rare works that leads us to face, at the center of law and legal thought, the largest questions about human life and human purpose. There is a special reader's shudder, a certain gestural shift in the chair, reserved for that moment of realizing where one is being led-not to the edge, but to the center, so that the questions become insistent, and whatever we and others say and do in the face of them becomes our response to them.

A Critical Guide To The Ninth Amendment, Thomas B. Mcaffee

Scholarly Works

Since the Supreme Court's decision in Griswold v. Connecticut, thousands of law students each year have confronted a confusing debate over the meaning of the Ninth Amendment. Writing for the majority in Griswold, Justice Douglas included the Ninth Amendment among the sources for deriving the “penumbral” right of privacy. More central to this article, in a separate concurrence Justice Goldberg contended that the Amendment provided a basis for the discovery of fundamental human rights beyond those included in the text of the Constitution and the Bill of Rights. In response, the dissenting Justices, Stewart and Black, argued that …

To Act Or Not? That Is The Question: Self-Incrimination And The Sole Proprietor, Raymond G. Keenan

Touro Law Review

No abstract provided.

Tragic Irony Of American Federalism: National Sovereignty Versus State Sovereignty In Slavery And In Freedom, The Federalism In The 21st Century: Historical Perspectives, Robert J. Kaczorowski

Faculty Scholarship

A plurality on the Supreme Court seeks to establish a state-sovereignty based theory of federalism that imposes sharp limitations on Congress's legislative powers. Using history as authority, they admonish a return to the constitutional "first principles" of the Founders. These "first principles," in their view, attribute all governmental authority to "the consent of the people of each individual state, not the consent of the undifferentiated people of the Nation as a whole." Because the people of each state are the source of all governmental power, they maintain, "where the Constitution is silent about the exercise of a particular power-that is, …

The Court And The Changing Constitution: A Discussion, Carl Sividorski, James Gardner, Barry Latzer, Peter Galie

Touro Law Review

No abstract provided.

The Arts: A Traditional Sphere Of Free Expression? First Amendment Implications Of Government Funding To The Arts In The Aftermath Of Rust V. Sullivan , Thomas P. Leff

American University Law Review

No abstract provided.

The Constitution's Forgotten Cover Letter: An Essay On The New Federalism And The Original Understanding, Daniel A. Farber

Michigan Law Review

At the end of the summer of 1787, the Philadelphia Convention issued two documents. One was the Constitution itself. The other document, now almost forgotten even by constitutional historians, was an official letter to Congress, signed by George Washington on behalf of the Convention. Congress responded with a resolution that the Constitution and "letter accompanying the same" be sent to the state legislatures for submission to conventions in each state.

The Washington letter lacks the detail and depth of some other evidence of original intent. Being a cover letter, it was designed only to introduce the accompanying document rather than …

The Arts: A Traditional Sphere Of Free Expression? First Amendment Implications Of Government Funding To The Arts In The Aftermath Of Rust V. Sullivan , Thomas P. Leff

American University Law Review

No abstract provided.

Foreword, Louis H. Pollak

Michigan Law Review

Introduction to the Symposium Reflections on United States v. Lopez

Enumerated Means And Unlimited Ends, H. Jefferson Powell

Michigan Law Review

United States v. Lopez can be read as a fairly mundane disagreement over the application of a long-settled test. The Government defended the statute under review in the case, the Gun-Free School Zones Act of 1990, along familiar lines as a permissible regulation of activity affecting interstate and foreign commerce.

In this essay, I do not address the question whether Lopez was an important decision. My concern instead is with the problem that underlies Lopez's particular issue of the scope of the commerce power: Given our commitment to limited national government, in what way is the national legislature actually limited? …

Commerce!, Deborah Jones Merritt

Michigan Law Review

In this article, I explore the Supreme Court's new definition of "Commerce ... among the several States."9 In Part I, I examine three new principles that Lopez announces and that could significantly rework the Court's Commerce Clause jurisprudence. Part II, however, shows that these principles must be understood in the context of almost a dozen factors narrowing the Supreme Court's Lopez decision. Part II also demonstrates that the lower courts have understood the contextual uniqueness of Lopez and already have distinguished the decision in upholding more than half a dozen broad exercises of congressional authority. Part III then shows that …

"A Government Of Limited And Enumerated Powers": In Defense Of United States V. Lopez, Steven G. Calabresi

Michigan Law Review

The Supreme Court's recent decision in United States v. Lopez marks a revolutionary and long overdue revival of the doctrine that the federal government is one of limited and enumerated powers. After being "asleep at the constitutional switch" for more than fifty years, the Court's decision to invalidate an Act of Congress on the ground that it exceeded the commerce power must be recognized as an extraordinary event. Even if Lopez produces no progeny and is soon overruled, the opinion has shattered forever the notion that, after fifty years of Commerce Clause precedent, we can never go back to the …

Policy Distortion And Democratic Debilitation: Comparative Illumination Of The Countermajoritarian Difficulty, Mark Tushnet

Michigan Law Review

James Bradley Thayer set the terms of the past century's discussion of judicial review in The Origin and Scope of the American Doctrine of Constitutional Law. Thayer was concerned with what Alexander Bickel labeled the "countermajoritarian difficulty" with judicial review, that judicial review displaces decisions made by near-contemporaneous political majorities and therefore is open to the charge that it is undemocratic. Thayer attempted to minimize the displacement- of political majorities through his "clear error" rule, according to which courts should not overturn legislation unless "those who have the right to make laws have not merely made a mistake, but have …

Back To The Briarpatch: An Argument In Favor Of Constitutional Meta-Analysis In State Action Determinations, Ronald J. Krotoszynski Jr.

Michigan Law Review

Brer Rabbit, after claiming repeatedly that he would prefer almost anything to being thrown into the briarpatch, expressed glee once tossed there. In fact, Brer Rabbit wanted to be in the briarpatch because, like most rabbits, he could navigate the briarpatch with relative ease: the briarpatch was home.

Over the course of a century, the Supreme Court has developed a great degree of familiarity with the state action doctrine, a doctrinal briar patch. Like Brer Rabbit, the Court has disclaimed repeatedly any interest in being there.

In this article, I argue that the existing tests for establishing the presence of …

Where's The Buck?: Juror Misperception Of Sentencing Responsibility In Death Penalty Cases, Joseph L. Hoffmann

Indiana Law Journal

Symposium: The Capital Jury Project

Lemon V. Kurtzman (Lemon I), 1971, Nathan Dorius

Brigham Young University Prelaw Review

Since the authors of the Constitution first gathered to create the supreme law of the land, the relationship between church and state has often been at the forefront of debate. The contention has been over interpretation of the First Amendment's Religion Clause: "Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof;... " This portion of the First Amendment has been divided by the courts into two separate "clauses", one being the Establishment Clause and the other being the Free Exercise Clause. In 1947 the United States Supreme Court (hereafter referred to as "the …

The Rising Wall: Everson V. Board O(Education, Rose Lindsay

Brigham Young University Prelaw Review

The interlocking of church and state has been one of the most prolific sources of human strife. The American founding fathers recognized the precarious nature of the relationship between church and state. They accepted the basic premise, enunciated by James Madison in his Memorial and Remonstrance Against Religious Assessments, "religion is not within the cognizance of Civil Government"(Cord 1982, 247). To prevent the treacherous combination of religious power with federal power, the founding fathers added the First Amendment to the United States Constitution in 1791. Breaking sharply with the past's tradition of melding church and state, they declared. "Congress shall …

A Theory Of Compulsory Process Clause Discovery Rights, Jean Montoya

Indiana Law Journal

No abstract provided.

Supplemental Jurisdiction Over Claims By Plaintiffs In Diversity Cases: Making Sense Of 28 U.S.C. § 1367 (B), Darren J. Gold

Michigan Law Review

This Note examines the language and legislative history of section 1367(b) and proposes a uniform test for determining the circumstances in which subsection (b) authorizes the exercise of supplemental jurisdiction. Part I of this Note explains the doctrines of pendent and ancillary jurisdiction and examines how the Supreme Court's decision in Finley v. United States called these doctrines into question. Part II examines the language and legislative history of section 1367 and concludes that the statute only prohibits the exercise of supplemental jurisdiction over claims by plaintiffs in diversity cases when doing so would permit plaintiffs to circumvent the complete …

Thirteen Easy Pieces, Frank I. Michelman

Michigan Law Review

A Review of Responding to Imperfection: The Theory and Practice of Constitutional Amendment by Sanford Levinson

A Critical Guide To The Second Amendment, Glenn Harlan Reynolds

Scholarly Works

This Article surveys case law, history, and scholarship on the Second Amendment. Examining both "individual right" and "collective right" theorists, it synthesizes a so-called "Standard Model" of Second Amendment interpretation, and briefly addresses questions of what weapons might be protected under a more expansive treatment of the Second Amendment than exists today.