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Constitutional law

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Articles 1951 - 1980 of 3545

Full-Text Articles in Law

The Future Of Footnote Four, Dan T. Coenen Apr 2007

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 …


After 150 Years, Worst Supreme Court Decision Ever Continues To Haunt, F. Michael Higginbotham Mar 2007

After 150 Years, Worst Supreme Court Decision Ever Continues To Haunt, F. Michael Higginbotham

All Faculty Scholarship

In 1857, the Supreme Court rendered a decision in Dred Scott v. Sandford, declaring that it had no jurisdiction to hear Dred Scott's claim to freedom because he was black and, therefore, not a citizen of the United States. This article argues that not only was the decision morally reprehensible, it was also based on an erroneous interpretation of the Constitution.


The Geologic Strata Of The Law School Curriculum, Robert W. Gordon Mar 2007

The Geologic Strata Of The Law School Curriculum, Robert W. Gordon

Vanderbilt Law Review

The modest aim of this piece is to supply some historical background to the other contributions to this Symposium. The modern American law school curriculum is the product of a few but critical choices of design, some of them over a century old. In this Article, I seek to (1) outline how the basic structure and content of the modern American law school curriculum came into being and what were the main competitors that curriculum displaced; (2) describe some of the ways in which the curriculum's basic structure and content have changed since its inception; and (3) point to some …


The Constitutional Foundations Of Chenery, Kevin M. Stack Mar 2007

The Constitutional Foundations Of Chenery, Kevin M. Stack

Vanderbilt Law School Faculty Publications

The Supreme Court regularly upholds federal legislation on grounds other than those stated by Congress. Likewise, an appellate court may affirm a lower court judgment even if the lower court's opinion expressed the wrong reasons for it. Not so in the case of judicial review of administrative agencies. The established rule, formulated in SEC v. Chenery Corp., is that a reviewing court may uphold an agency's action only on the grounds upon which the agency relied when it acted. This Article argues that something more than distrust of agency lawyers is at work in Chenery. By making the validity of …


Judicial Review And The War On Terror, John C. Yoo Feb 2007

Judicial Review And The War On Terror, John C. Yoo

ExpressO

This article examines the role of the federal courts in the war on terrorism, and contrasts the different judicial roles in reviewing decisions about the conduct of war abroad and within the United States. It explains that judicial refusal to adjudicate questions concerning the initiation and conduct of the war abroad is consistent with a narrow view of judicial review and the political question doctrine. Because the Constitution allocates different war powers to the President and Congress, allowing them to shape warmaking through the interaction of these powers, there is no single, constitutionally-required process for making war that requires judicial …


The Supreme Court, Justinian, And Antonin Scalia: Twenty Years In Retrospect, Paul R. Baier Feb 2007

The Supreme Court, Justinian, And Antonin Scalia: Twenty Years In Retrospect, Paul R. Baier

Louisiana Law Review

No abstract provided.


An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger Jan 2007

An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger

Law Faculty Publications

No abstract provided.


Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff Jan 2007

Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff

Law Faculty Publications

No abstract provided.


Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber Jan 2007

Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber

Faculty Scholarship

“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally …


The People Or The State?: Chisholm V. Georgia And Popular Sovereignty, Randy E. Barnett Jan 2007

The People Or The State?: Chisholm V. Georgia And Popular Sovereignty, Randy E. Barnett

Georgetown Law Faculty Lectures and Appearances

Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this …


The Impact Of A Knee-Jerk Reaction: The Patriot Act Amendments To The Foreign Intelligence Surveillance Act And The Ability Of One Word To Erase Established Constitutional Requirements, Joshua H. Pike Jan 2007

The Impact Of A Knee-Jerk Reaction: The Patriot Act Amendments To The Foreign Intelligence Surveillance Act And The Ability Of One Word To Erase Established Constitutional Requirements, Joshua H. Pike

Hofstra Law Review

No abstract provided.


Presidential Signing Statements And Congressional Oversight, A. Christopher Bryant Jan 2007

Presidential Signing Statements And Congressional Oversight, A. Christopher Bryant

Faculty Articles and Other Publications

In response to highly controversial statements issued by President George W. Bush upon signing various bills into law, an American Bar Association Task Force and Senator Arlen Specter both recently called for the creation of a cause of action to obtain a federal judicial declaration concerning the legal validity of future presidential signing statements. This essay argues that such legislation would be ill-advised and counterproductive. It would exacerbate existing underlying institutional infirmities. More fundamentally, the inclination to facilitate immediate resort to the judiciary for resolution of a dispute between the political branches about the President's constitutional obligations is premised on …


The Balkanization Of Originalism, James E. Fleming Jan 2007

The Balkanization Of Originalism, James E. Fleming

Maryland Law Review

No abstract provided.


Blowing The Lid Off: Expanding The Due Process Clause To Defend The Defenseless Against Hurricane Katrina, Olympia Duhart Jan 2007

Blowing The Lid Off: Expanding The Due Process Clause To Defend The Defenseless Against Hurricane Katrina, Olympia Duhart

Faculty Scholarship

No abstract provided.


Public Health And Constitutional Law: Recognizing The Relationship, Wendy E. Parmet Jan 2007

Public Health And Constitutional Law: Recognizing The Relationship, Wendy E. Parmet

Journal of Health Care Law and Policy

No abstract provided.


The Downlow On Kelo: How An Expansive Interpretation Of The Public Use Clause Has Opened The Floodgates For Eminent Domain Abuse, Eric L. Silkwood Jan 2007

The Downlow On Kelo: How An Expansive Interpretation Of The Public Use Clause Has Opened The Floodgates For Eminent Domain Abuse, Eric L. Silkwood

West Virginia Law Review

No abstract provided.


Instruments Of Accommodation: The Military Chaplaincy And The Constitution, Robert W. Tuttle, Ira C. Lupu Jan 2007

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

GW Law Faculty Publications & Other Works

This essay addresses the proliferation of constitutional issues involving the military chaplaincy. The authors query how the chaplaincy is consistent with the Establishment Clause of the Constitution's First Amendment and note that the answer generally derives from one or more of the following paradigms: (1) Establishment Clause history; (2) Public funding of religion; or (3) Governmental display of religious messages. They suggest that an adequate approach for Establishment Clause analysis of the military chaplaincy requires a different framework. To that end, Part I of this essay describes Katcoff v. Marsh, the most important decision on the constitutionality of the military …


Symposium - The Maryland Constitutional Law Schmooze Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber Jan 2007

Symposium - The Maryland Constitutional Law Schmooze Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber

Maryland Law Review

No abstract provided.


The Original Meaning Of Original Understanding: A Neo-Blackstonian Critique, Saul Cornell Jan 2007

The Original Meaning Of Original Understanding: A Neo-Blackstonian Critique, Saul Cornell

Maryland Law Review

No abstract provided.


A Place For Interposition? What John Taylor Of Caroline And The Embargo Crisis Have To Offer Regarding Resistance To The Bush Constitution, Bradley D. Hays Jan 2007

A Place For Interposition? What John Taylor Of Caroline And The Embargo Crisis Have To Offer Regarding Resistance To The Bush Constitution, Bradley D. Hays

Maryland Law Review

No abstract provided.


Originalism, The Living Constitution, And Supreme Court Decision Making In The Twenty-First Century: Explaining Lawrence V. Texas, Ronald Kahn Jan 2007

Originalism, The Living Constitution, And Supreme Court Decision Making In The Twenty-First Century: Explaining Lawrence V. Texas, Ronald Kahn

Maryland Law Review

No abstract provided.


The Fog Of War: Checks And Balances And National Security Policy, Kenneth Ward Jan 2007

The Fog Of War: Checks And Balances And National Security Policy, Kenneth Ward

Maryland Law Review

No abstract provided.


Demystifying Social Welfare: Foundations For Constitutional Design, Joe Oppenheimer, Norman Frohlich Jan 2007

Demystifying Social Welfare: Foundations For Constitutional Design, Joe Oppenheimer, Norman Frohlich

Maryland Law Review

No abstract provided.


Slavery And The Marshall Court: Preventing “Oppressions Of The Minor Party”?, Leslie Friedman Goldstein Jan 2007

Slavery And The Marshall Court: Preventing “Oppressions Of The Minor Party”?, Leslie Friedman Goldstein

Maryland Law Review

No abstract provided.


Two Cheers For Eighteenth-Century Constitutionalism In The Twenty-First Century, George Thomas Jan 2007

Two Cheers For Eighteenth-Century Constitutionalism In The Twenty-First Century, George Thomas

Maryland Law Review

No abstract provided.


The Doubtful Validity Of Victim-Specific Libel Laws, Nat Stern Jan 2007

The Doubtful Validity Of Victim-Specific Libel Laws, Nat Stern

Villanova Law Review (1956 - )

No abstract provided.


School Naming Rights And The First Amendment’S Perfect Storm, Joseph Blocher Jan 2007

School Naming Rights And The First Amendment’S Perfect Storm, Joseph Blocher

Faculty Scholarship

In the past five years, public schools across the country have begun to explore a new avenue of fundraising: selling naming rights to school facilities. The popularity and monetary value of these sales, however, only highlight the importance of the First Amendment concerns they raise. This Article uses school naming rights as a lens through which to examine the conflicts between government speech, commercial speech, and forum analysis, three categories of First Amendment analysis that are simultaneously and problematically implicated by school naming rights sales. Courts and scholars have long noted the internal ambiguities within these three categories, but have …


Juvenile Curfews: Political Pandering At The Expense Of A Fundamental Right, Toni L. Conner Jan 2007

Juvenile Curfews: Political Pandering At The Expense Of A Fundamental Right, Toni L. Conner

West Virginia Law Review

No abstract provided.


Double Jeopardy Law And The Separation Of Powers, Alex Tsiatsos Jan 2007

Double Jeopardy Law And The Separation Of Powers, Alex Tsiatsos

West Virginia Law Review

No abstract provided.


The Standing And Removal Decisions From The Supreme Court's 2006 Term, Steven H. Steinglass Jan 2007

The Standing And Removal Decisions From The Supreme Court's 2006 Term, Steven H. Steinglass

Law Faculty Articles and Essays

This article reviews some of the more important jurisdictional decisions of the U.S. Supreme Court during the court's 2006-07 term, the first full term that included both of the court's newest justices--Chief Justice John G. Roberts Jr. and Associate Samuel A. Alito Jr. The term begins an era that will likely become known as the Roberts Court, but this term surely belonged to Associate Justice Anthony M. Kennedy, who cast the deciding vote in all 24 of the court's 5-4 decisions.