Law Commons^™

Presidential Review As Constitutional Restoration, John O. Mcginnis

Articles

No abstract provided.

A Truism That Isn't True? The Tenth Amendment And Executive War Power, D. A. Jeremy Telman

Law Faculty Publications

The Tenth Amendment is invoked whenever congressional powers threaten the independent law-making power of the several states. In that context, however, the Tenth Amendment does not tell us very much. After all, if powers are not delegated to the federal government, where else would they go but to the states? Accordingly, the Supreme Court has dismissed the Amendment as a truism.

Although the Amendment is only deployed as a rather ineffectual check on congressional authority, it clearly applies to all branches of the federal government. However, according to the theory of inherent executive authority, certain powers are unique to the …

Bush V. Gore And Equal Protection, Martin D. Carcieri

South Carolina Law Review

No abstract provided.

In Defense Of Making Government Pay: The Deterrent Effect Of Constitutional Tort Remedies, Myriam E. Gilles

Articles

Legal economists are concerned with setting optimal deterrence levels. Armed with information concerning the public and private costs and benefits of a particular harmful activity, the legal economist seeks to set a “price” for the activity which, to some socially optimal extent, minimizes external costs while retaining external benefits. If the economist's information is perfect, he can predict precisely how an economically rational actor will respond to a particular price and achieve optimal deterrence of activities whose costs outweigh their benefits.

Corrective Justice And Constitutional Torts, Bernard P. Dauenhauer, Michael L. Wells

Scholarly Works

Tort liability in the private realm may be understood as "an instrument aimed...at deterrence...[and] a way of achieving corrective justice between the parties." Following the common law model, the Supreme Court has borrowed this normative framework for constitutional torts, ruling that the aims of liability for damages are to vindicate constitutional rights and to deter constitutional violations. A recent article by Daryl Levinson takes issue with this approach. Levinson argues that the superficial similarities between public torts and private torts conceal real differences, to which neither the Court nor scholars have paid adequate attention. The main point of his article, …

Foreword: Symposium Re-Examining First Principles: Deterrence And Corrective Justice In Constitutional Torts, Thomas A. Eaton

Scholarly Works

This Symposium provides a forum for a careful and thoughtful consideration of whether constitutional tort law can deter wrongdoing and is consistent with principles of corrective justice.

Section 1983, The First Amendment, And Public Employee Speech: Shaping The Right To Fit The Remedy (And Vice Versa), Michael Wells

Scholarly Works

This Article is not about theories of free speech and how they bear on the public employment context, nor does it contribute to the academic debate over what the aims of public employee speech law ought to be. I take the Court at its word when it says that its aim is to give substantial weight to both the value of speech and the government's interest as an employer. Unlike Massaro and Ingber, I take it as a given that the government may insist on hierarchy and obedience to authority in the workplace. Unlike Rosenthal, I begin from the Court's …

Free? Exercise, Marci A. Hamilton

Articles

No abstract provided.

The Gfp (Green) Bunny: Reflections On The Intersection Of Art, Science And The First Amendment, Sheldon Nahmod

All Faculty Scholarship

No abstract provided.

The Commercial Activity Exception Under The Fsia, Personhood Under The Fifth Amendment And Jurisdiction Over Foreign States: A Partial Roadmap For The Supreme Court In The New Millennium, Stephen J. Leacock

Faculty Scholarship

No abstract provided.

The South Won't Rise Again But It's Time To Study The Defunct Confederacy's Constitution, Ralph Michael Stein

Elisabeth Haub School of Law Faculty Publications

The premise of this essay is not to espouse that the Southern ideological and constitutional theorists were correct. I propose, however, that an understanding of the historical basis of constitutional law, and a recognition of evolving doctrinal issues of Federalism, will enhance law school curriculum. Presentation of these topics dictates the introduction of the Confederate Constitution into the curriculum of required courses and electives. This effort, I propose, would be a prudent step, to be amply repaid in terms of higher understanding and scholarly benefit.

Why Federalism Must Be Enforced: A Response To Professor Kramer, Marci A. Hamilton

Articles

The United States Supreme Court has issued a series of opinions that turn on the Constitution's inherent principles of federalism, decisions that have alarmed many a legal scholar. Some scholars have attacked the Court for overstepping its bounds, and others have criticized the Court on the ground that the federal/state balance should be maintained through the political process rather than judicial review. The most recent advocate of this position, Professor Larry Kramer, recently argued in the Columbia Law Review that the political party structure ensures that state interests are taken into account at the federal level, and therefore the Supreme …

The Correction Of Wrongful Convictions: A Comparative Perspective, Lissa Griffin

Elisabeth Haub School of Law Faculty Publications

This Article analyzes the different modes in which two facially similar adversarial systems remedy wrongful convictions. Part I briefly examines the origins of wrongful convictions in both England and the United States. Part II describes the appellate processes in the two countries for correcting wrongful convictions. Part III addresses the processes for correcting wrongful convictions after the appellate processes have been completed. Part IV critiques the English process and examines whether aspects of that process may be carried over to the United States.

The Supreme Court 2000 Term--Leading Cases, Good News Club V. Milford Central School, 121 S. Ct. 2093 (2001), Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

After the Supreme Court held in Widmar v. Vincent that state universities could not constitutionally deny religious groups access to facilities generally available to student groups, a number of school districts authored access policies that were designed to create “limited public forums.” These policies delineated the categories of activities for which school property could be used, and indicated that religious activities were not among them. In Lamb's Chapel v. Center Moriches Union Free School District, however, the Supreme Court struck a blow to the notion that school districts could employ the limited public forum approach to exclude religious activities from …

Lochner, Liquor, And Longshoremen: A Puzzle In Progressive Era Federalism, Barry Cushman

Journal Articles

In 1890, the Supreme Court shocked and thrilled the civilized world with the announcement that dry states could not prohibit the sale of liquor shipped in from outside the state. So long as the out-of-state goods remained in their "original packages," the Court held they retained their character as interstate commerce subject only to federal regulation. The consequences for the cause of local sobriety were, predictably, catastrophic. The proliferation in temperance territory of "original package saloons," at which one could purchase liquor free from the superintendence of local liquor authorities, was appalling to dry eyes. Members of Congress immediately proposed …

Takings Clause, Tara Leigh Grove

Faculty Publications

No abstract provided.

United States Supreme Court: 2001 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

The American Prosecutor: Independence, Power, And The Threat Of Tyranny, Angela J. Davis

Scholarly Articles in Law Reviews & Journals

This Article compares the power, practices, and policies of the Independent Counsel with those of ordinary state and federal prosecutors and suggests that the purported distinctions turn out to be illusory. Part I charts the principal structural characteristics of the Independent Counsel and regular prosecutors, with particular focus on prosecutorial discretion and the charging power. This section notes the public outrage over former Independent Counsel Kenneth Starr and argues that the American prosecutor deserves similar scrutiny. Using illustrations from the author’s former experience as a public defender, this Part explains how regular prosecutors engage in the same acts of misconduct …

The Supreme Court In Real Time: Haste, Waste, And Bush V. Gore, Michael Herz

Articles

No abstract provided.

Federal Preemption Of State Tort Claims, Marin Roger Scordato

Scholarly Articles

This article explores a continuing disagreement among Justices of the United States Supreme Court regarding the proper doctrinal framework for federal preemption jurisprudence. This important difference in views became apparent in the four federal preemption cases that the Supreme Court decided during its 1999-2000 term. The article describes this critical disagreement among the Justices, places it in the larger context of preemption doctrine, and then carefully analyzes a number of possible resolutions.

Federal preemption is an area of enormous practical and theoretical importance. It is a subject that has earned a regular place on the Supreme Court's docket for many …

A Claim For Third Party Standing In America's Prisons, N. Jeremi Duru

Scholarly Articles in Law Reviews & Journals

No abstract provided.

Constitutional Law: State Campaign Contribution Limits: Nixon V. Shrink Missouri Government Pac: An Abridgment Of Freedom In The Name Of Democracy, Richard J. Baker

Oklahoma Law Review

No abstract provided.

The Supreme Court, Bush V. Gore, And Rough Justice, William P. Marshall

Faculty Publications

No abstract provided.

Apologies Or Apologisits? Remembering The Japanese American Internment In Wyoming, Eric L. Muller

Faculty Publications

No abstract provided.

The 2000-2001 Supreme Court Term: Section 1983 Cases, Martin A. Schwartz

Scholarly Works

No abstract provided.

The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian

Articles

Conventional wisdom holds that the World Trade Organization (WTO) necessarily poses a threat to sovereignty and representative government within its member nations. Professors McGinnis and Movsesian refute this view. They argue that the WTO can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy. Indeed, in promoting both free trade and accountable government, the WTO reflects many of the insights that inform our own Madisonian Constitution. Professors McGinnis and Movsesian reject recent proposals to grant the WTO regulatory authority, endorsing instead the WTO's limited adjudicative power …

Public Service, Ethics, And Constitutional Practice, James E. Moliterno

Faculty Publications

No abstract provided.

Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim A. Rossi

Vanderbilt Law School Faculty Publications

Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some …

State V. Higgenbottom: Must A Criminal Defendant Endure The Wrath Of A Vindictive Judge, Nancy Fennell

South Carolina Law Review

No abstract provided.

Beaufort County Board Of Education V. Lighthouse Charter School Committee: Racial Balancing Provisions In South Carolina Charter Schools Act Flunks The Strict Scrutiny Test, John G. Moore

South Carolina Law Review

No abstract provided.