Law Commons^™

Icwa And The Commerce Clause, Matthew L.M. Fletcher

Matthew L.M. Fletcher

Congress enacted the Indian Child Welfare Act, it said, in accordance with its authority under the Indian Commerce Clause and because it has assumed responsibility over Indian affairs. But under the line of cases developed by the Rehnquist Court, the Court takes a very dim view of Congressional authority under the Commerce Clause, while resurrecting the Tenth Amendment from its stasis as a “truism.” At least one Justice asserts that there is nothing in the Constitution that authorizes Congress to assume authority over Indian affairs to the exclusion of the Executive branch or the states. This paper argues that, despite …

Latin American Competition Policy: From Nirvana Antitrust Policy To Reality-Based Institutional Competition Building, Ignacio De Leon

Chicago-Kent Law Review

The inception of antitrust policy in Latin America is marred with misconceptions about the role of this policy. The seemingly pro-competitive goals declared under the law collide with the pursuit of welfare efficiency goals that could impair the natural outcomes of unfettered market forces. This article argues that the inherent contradiction between the stated goals of antitrust policy and its practical effects ultimately rests on the lack of analytical relevance attached to the institutional milieu within which antitrust policy is to produce its effects. Institutional connections are necessary to convey relevant information across the system; without these, the market would …

Government As Liberty's Servant: The "Reasonable Time, Place, And Manner" Standard Of Review For All Government Restrictions On Liberty Interests, Michael Anthony Lawrence

Louisiana Law Review

No abstract provided.

Where Are Your Papers? Photo Identification As A Prerequisite To Voting, Michael J. Kasper

Michael J. Kasper

ABSTRACT WHERE ARE YOUR PAPERS? Photo Identification as a Prerequisite to Voting Remember the old war movies? Richard Attenborough or William Holden is slowly walking down misty, Parisian streets, the collar of his trench turned up, the brim of the fedora pulled low. A black sedan screeches around the corner and screams to a stop in front of him, before he has time to react. Soldiers bound from the car, pistols draw, and bark “Vhere are your papers?” When did America become this movie? The U.S. Supreme Court will take up this question this term. This article explores five recent …

Wong Kim Ark And Sentencia Que Declara Constitucional La Ley General De Migración 285-04 In Comparative Perspective: Constitutional Interpretation, Jus Soli Principles, And Political Morality, Patrick J. Glen

University of Miami Inter-American Law Review

No abstract provided.

Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg

Faculty Scholarship

The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …

“We The People” Through Young Eyes, Alan E. Garfield

Alan E Garfield

No abstract provided.

Does Due Process Have An Original Meaning? On Originalism, Due Process, Procedural Innovation . . . And Parking Tickets, Lawrence Rosenthal

Lawrence Rosenthal

Originalism – the view that constitutional provisions should be interpreted as they were “understood at the time of the law’s enactment” – is the ascendant method of constitutional interpretation. In particular, originalists argue that the Constitution's open-ended provisions should be interpreted in light of their generally understood legal meaning at the time of their framing. An originalist view of due process -- entitling civil and criminal defendants to those procedures considered "due" at the time of framing -- would accordingly condemn any number of innovations in criminal and civil procedures' that alter framing-era procedural rights, such as the novel systems …

Religious Exemptions And The Common Good: A Reply To Professor Carmella, Laura S. Underkuffler

West Virginia Law Review

No abstract provided.

When Accommodations For Religion Violoate The Establishment Clause: Regularizing The Supreme Court's Analysis, Carl H. Esbeck

West Virginia Law Review

No abstract provided.

Life After The Establishment Clause, Steven G. Gey

West Virginia Law Review

No abstract provided.

Substantive Neutrality Revisited, Douglas Laycock

West Virginia Law Review

No abstract provided.

Instruments Of Accommodation: The Military Chaplaincy And The Constitution, Ira C. Lupu, Robert W. Tuttle

West Virginia Law Review

No abstract provided.

Reconciling The Irreconcilable: Military Chaplains And The First Amendment, Steven K. Green

West Virginia Law Review

No abstract provided.

The Establishment Clause And Religious Expression In Government Settings: Four Variables In Search Of A Standard, Daniel O. Conkle

West Virginia Law Review

No abstract provided.

Establishment Clause Limits On Free Exercise Accommodations, Kent Greenawalt

West Virginia Law Review

No abstract provided.

Responsible Freedom Under The Religion Clauses: Exemptions, Legal Pluralism, And The Common Good, Angela C. Carmella

West Virginia Law Review

No abstract provided.

Doctrine Formulation And Distrust, Toby J. Heytens

Toby J Heytens

Legal scholars exhaustively debate the substantive wisdom of Supreme Court decisions and the appropriate methods for interpreting legal texts, but rarely consider the more pragmatic need to craft rules that will be faithfully implemented by the lower court judges who have the last word in the overwhelming majority of cases. Political scientists, in contrast, invest tremendous effort seeking to determine whether lower courts “comply” with Supreme Court directives, but find themselves unable to explain why their own studies generally find high levels of compliance. This Article argues that part of the answer lies in the Court’s ability to craft legal …

When Is The Use Of Foreign Law Possible? A Hard Case: The Protection Of Privacy In Europe And The United States, James Gordley

Louisiana Law Review

No abstract provided.

Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …

The Growing Influence Of Tort And Property Law On Natural Resources Law: Case Studies Of Coal Bed Methane Development And Geologic Carbon Sequestration, Alexandra B. Klass

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

19 pages.

"Alexandra B. Klass, Associate Professor of Law, University of Minnesota Law School"

Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

6 pages.

"James May, Widener University School of Law" -- Agenda

Social Capital In Constitutional Law: The Case Of Private Norm Enforcement Through Prayer At Public Occasions, Paul E. Mcgreal

Paul E. McGreal

Distinguishing private action from government action is the first question of constitutional law. The distinction blurs most when the government and private actors jointly cause harm. Not surprisingly, then, the Supreme Court’s cases in this gray area have been inconsistent. For example, state court enforcement of a private racially restrictive covenant is government action, but agency placement of a child in a home where the child is abused is private action. The ad hoc nature of these decisions reflects a reluctance to fully embrace joint government-private causation of constitutional harm: Without a limiting principle, doing so would threaten to convert …

Military Values In Law, Diane H. Mazur

Duke Journal of Gender Law & Policy

Congress, for example, takes inappropriate advantage of the tremendous deference given by courts to its constitutional powers to raise and support Armies, to provide and maintain a Navy, and to make Rules for the Government and Regulation of the land and naval Forces.\n In a court-martial involving a military defendant and a civilian victim of sexual assault, application of the psychotherapist-patient privilege raises no difficult issues related to professional military values. When both the victim and the defendant are members of the military, however, the victim's assertion of privilege is at least potentially inconsistent with the victim's professional obligation to …

Constitutional Reform, Legal Consciousness, And Citizen Participation In Thailand, Frank Munger

Cornell International Law Journal

No abstract provided.

Against Mix-And-Match Lawmaking, Aaron-Andrew P. Bruhl

Cornell Journal of Law and Public Policy

No abstract provided.

Defending The (Not So) Indefensible, Seth Barrett Tillman

Cornell Journal of Law and Public Policy

No abstract provided.

South Carolina's Evolving Standards Of Decency: Capital Child Rape Statute Provides A Reminder That Societal Progression Continues Through Action, Not Idleness, Ashley M. Kearns

South Carolina Law Review

No abstract provided.

The Future Of Footnote Four, Dan T. Coenen

Scholarly Works

The Supreme Court's decision in United States v. Carolene Products Co. generated the most famous footnote-and perhaps the most famous passage-in all of the American Judiciary's treatment of constitutional law. Among other things, Footnote Four suggested that "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry." The importance of this principle cannot be overstated. It pervaded the work of the Warren Court and has played a prominent role …

The Fair Market Value Method Of Property Valuation In Eminent Domain: "Just Compensation" Or Just Barely Compensating?, Lucas J. Asper

South Carolina Law Review

No abstract provided.