Law Commons^™

Independent Agencies Under Attack: A Skeptical View Of The Importance Of The Debate, Susan Bartlett Foote

Duke Law Journal

The 1980s have witnessed two related but distinct attacks on independent agencies. 1 One attack is grounded in constitutional theory. Some have argued that independent agencies, those "strange amalgam[s]" that blend the functions of all three branches but are the creatures of none, violate the separation of powers doctrine in the Constitution. 2 This approach has been labeled "neoclassical" 3 or the "new formalism." 4 These terms suggest a rediscovery of fundamental constitutional principles. Another attack proceeds from an organizational perspective. Without clear lines of authority from one branch of government, independent agencies are politically unaccountable, and therefore vulnerable to …

A Job For The Judges: The Judiciary And The Constitution In A Massive And Complex Society, Neil K. Komesar

Michigan Law Review

This article attempts that task by exploring the elements of institutional choice in constitutional law. Part I takes an overview of the general division of decisionmaking responsibility between the political processes and the courts. It also examines the failures of existing theories to take account of this division of responsibility. Part II identifies two theories of political malfunction - those circumstances in which political processes are subject to significant doubt or distrust and, therefore, prime candidates for judicial review. Part III examines the characteristics - limits, biases, and abilities - of the judiciary and the potential for judicial response to …

Human Rights: Two Hundred Years Of Constitutional Experience In The United States, Robert S. Barker

Barker Papers

The study of the United States Constitution is not the exclusive province of any one discipline or profession. But, the history of the United States has demonstrated that the Constitution, particularly in its human rights aspects, is preeminently a legal document. As Tocqueville said a century and a half ago, "There is hardly a political question in the United States which does not sooner or later turn into a judicial one." This paper explains both the historical format and its jurisprudential emphasis.

U.S. Supreme Court: The 1987-88 Term (Part I), Paul C. Giannelli

Faculty Publications

No abstract provided.

Judicial Conscience And Natural Rights: A Reply To Professor Ledewitz, Harry V. Jaffa

Seattle University Law Review

In our Spring 1987 issue, Professor Jaffa authored an essay in which he posited that the fundamental principles of equality and other tenets of natural law expressed in the Declaration of Independence were originally intended to be the principles of the Constitution of 1787 Professor Jaffa asserted that while the Framers believed in the "law of nature and nature's God," many contemporary constitutional thinkers, including fellow conservatives Chief Justice William Rehnquist and Attorney General Edwin Meese, do not. Thus, Jaffa argued, those conservatives "who today most aggressively appeal to the doctrine of original intent are among its most resolute antagonists." …

What The Constitution Means By Executive Power, Charles J. Cooper, Orrin Hatch, Eugene V. Rowstow, Michael E. Tigar

Faculty Scholarship

No abstract provided.

The Ninth Amendment's Role In The Evolution Of Fundamental Rights Jurisprudence, Geoffrey G. Slaughter

Indiana Law Journal

No abstract provided.

Some Modest Proposals On The Vice-Presidency, Richard D. Friedman

Articles

There are many good things in the Constitution, but the vice-presidency isn't one of them. In Part I of this essay, I will argue that there are three basic problems with the vice-presidency: the method of nomination, the method of election, and the office itself. That just about covers the waterfront.' If we had to do it all over again, we almost certainly would not" create the system we currently have. We cannot undo history, but we do have a very strong incentive to develop a better system of succession to the presidency. Whom we choose as vice-president is a …

Reconstructing The Takings Doctrine By Redefining Property And Sovereignty, John Martinez

Fordham Urban Law Journal

In 1987, the Supreme Court decided three cases involving "takings" challenges to governmental exercise of the power to control land use. This trilogy of cases affirmed the continuing validity of a three-part analytical model in addressing the takings problem: (1) is private property involved; (2) has governmental action so affected it as to require a remedy; and (3) what remedy should be provided? This Article critically examines that model and argues that the first two questions are fundamentally indistinguishable and that to treat them as distinct inquiries is unworkable. The Article then proposes a functional approach under which individuals are …

The President’S Powers As Commander-In-Chief Versus Congress’ War Power And Appropriations Power, Charles Bennett, Arthur B. Culvahouse Jr., Geoffrey P. Miller, William Bradford Reynolds, William W. Van Alstyne

Faculty Scholarship

No abstract provided.

Comments On Professor Rotunda's Essay, Richard H. Underwood

Law Faculty Scholarly Articles

In this comment, Professor Richard H. Underwood provides a response to An Essay on the Constitutional Parameters of Federal Impeachment, by Professor Ronald D. Rotunda. Rotunda’s essay was published in the Kentucky Law Journal, Vol. 76, No. 3, pp. 707-732.

U.S. Supreme Court: The 1987-88 Term (Part Ii), Paul C. Giannelli

Faculty Publications

No abstract provided.

State-Interest Analysis In Fourteenth-Amendment "Privacy" Law: An Essay On The Constitutionalization Of Social Issues, Carl E. Schneider

Articles

Asked to resolve a social issue, Americans today turn readily to rights and to the Constitution that is understood to embody them. Many "vice" issues have long been thought particularly apt for a rights analysis. A constitutional resolution of vice issues is therefore inevitably a possibility, and its wisdom is inevitably a question. In this essay, I want to address that question by investigating an area of the law that has been recently constitutionalized family law. Family law is an example worth studying because rights thinking has won a considerable prominence in it: The Constitution has been used to transform …

The Search For An Author: Shakespeare And The Framers, James Boyle

Faculty Scholarship

No abstract provided.

A Preface To Constitutional Theory, David B. Lyons

Faculty Scholarship

We have a plethora of theories about judicial review, including theories about theories, but their foundations require stricter scrutiny. This Essay presents some aspects of the problem through an examination of two important and familiar ideas about judicial review.

The controversy over "noninterpretive" review concerns the propriety of courts' deciding constitutional cases by using extraconstitutional norms. But the theoretical framework has not been well developed and appears to raise the wrong questions about judicial review. Thayer's doctrine of extreme judicial deference to the legislature has received much attention, but his reasoning has been given less careful notice. Thayer's rule rests …

Constitutionality Of Mandatory Farmer-Lender Mediation: The Minnesota Plan - Laue V. Production Credit Association, The, Jeffrey L. Dawson

Journal of Dispute Resolution

In March of 1986, the Minnesota legislature adopted an omnibus farm bill. A principal part of this bill was the "Farmer-Lender Mediation Act" s (hereinafter Act). The Act requires mandatory mediation notice in the case of any debt foreclosure proceedings brought against farm debtors.8 The Act was scrutinized by the Minnesota Court of Appeals in a case of first impression in Laue v. Production Credit Association.

Administrative Searches For Evidence Of Crime: The Impact Of New York V. Burger, Perry S. Reich

Touro Law Review

No abstract provided.

Marriage, Procreation, And The Prisoner: Should Reproductive Alternatives Survive During Incarceration?, Jacqueline B. Deoliveira

Touro Law Review

No abstract provided.

The Enduring Constitution Of The People And The Protection Of Individual Rights, Robert A. Sedler

Law Faculty Research Publications

No abstract provided.

In Defense Of The Constitution's Judicial Impeachment Standard, Melissa H. Maxman

Michigan Law Review

This Note explores the traditional interpretation of the Constitution's impeachment provisions in light of the demands of Judges Claiborne's, Nixon's, and Hastings' cases. Part I describes the signals indicating analytical shortcomings, and thus the need for reexamination of the provisions as currently construed. It shows that the troubling results of the recent standard allowing criminal prosecution before impeachment are apparent to both the courts and the Congress. Part II analyzes the meaning and purpose of the constitutional language, and the recent policy challenges to it. This part shows that, in fact, the impeachment provisions were carefully chosen by the Constitution's …

Origins Of The American Constitution, Harry Tepker

Other Faculty Publications

No abstract provided.

Bodily Intrusion In Search Of Evidence: A Study In Fourth Amendment Decisionmaking, Michael G. Rogers

Indiana Law Journal

No abstract provided.

Liquor Price Affirmation Statutes And The Dormant Commerce Clause, Ward A. Greenberg

Michigan Law Review

Part I of this Note examines the current state of the law in the liquor affirmation area. Part II argues that the twenty-first amendment may not be invoked to justify the extraterritorial impact of these statutes. The amendment does not preempt the commerce clause in the liquor area. While it gives the states free rein over liquor internally, it provides no basis for any extraterritorial projection of liquor price regulation. Part III considers the commerce clause analysis of Brown-Forman and argues that any interstate effects of these statutes will cause them to violate the commerce clause. This section argues that …

Disorder In The Court: The Death Penalty And The Constitution, Robert A. Burt

Michigan Law Review

This article has two purposes. Its first aim is to trace the significance of these shifting characterizations of American society in the Justices' successive approaches to the death penalty by retelling the story of the Court's capital punishment jurisprudence. Its second purpose is to suggest that belief in implacable social hostility destroys the coherence of the judicial role in constitutional adjudication. America may indeed be an irreconcilably polarized society; I cannot dispositively prove or disprove the proposition. I mean only to claim that in constitutional adjudication a judge is obliged to act as if this proposition were false; and, moreover, …

Rational Basis With Bite: Intermediate Scrutiny By Any Other Name, Gayle Lynn Pettinga

Indiana Law Journal

No abstract provided.

The Idea Of The Constitution As Hard Law, William W. Van Alstyne

Journal of Legal Education

No abstract provided.

Toleration And The Constitution, Judith L. Hudson

Michigan Law Review

A Review of Toleration and the Constitution by David A.J. Richards

The American Constitution: A Double Life, Lawrence M. Friedman

University of Arkansas at Little Rock Law Review

No abstract provided.

Why The Reagan Administration Resists Radical Transformation Of The Constitution, Gary C. Leedes

University of Arkansas at Little Rock Law Review

No abstract provided.

Striking Down The Clergyman-Communicant Privilege Statutes: Let Free Exercise Of Religion Govern, Jane E. Mayes

Indiana Law Journal

No abstract provided.