Law Commons^™

Where To Go From Here? The Roberts Court At The Crossroads Of Sentencing, Nora V. Demleitner

Scholarly Articles

As the Supreme Court has turned federal sentencing upside down in Booker, it has left a host of open questions in the wake of that decision. The outcome of these questions is often difficult to predict, for lower courts and commentators alike, as the Court has failed to develop an overarching sentencing philosophy to replace the rehabilitation-focused one that animated sentencing for so long. If the Court were to reach consensus on that issue, it would be better able to speak coherently on unresolved sentencing matters. This introduction to an Issue of the Federal Sentencing Reporter highlights some of the …

Rights, Rules, And Raich, Alex Kreit

West Virginia Law Review

No abstract provided.

Content-Based And Content-Neutral Regulation Of Speech: The Limitations Of A Common Distinction, R. George Wright

University of Miami Law Review

No abstract provided.

Constitutional Law—Direct Shipment Of Alcohol—Well-Aged And Finally Uncorked: The Supreme Court Decides Whether The Twenty-First Amendment Grants States The Power To Avoid The Dormant Commerce Clause. Granholm V. Heald, 125 S. Ct. 1885 (2005)., Robert L. Jones Iii

University of Arkansas at Little Rock Law Review

No abstract provided.

Marshall, Marbury, And Mr. Byrd: America Unchecked And Imbalanced (Reviewing Losing America By Senator Robert C. Bryd), Gerald G. Ashdown

West Virginia Law Review

No abstract provided.

Constitutional Realism About Constitutional Protection: Indigenous Rights Under A Judicialized And A Politicized Constitution, Matthew Sr Palmer

Dalhousie Law Journal

This article assesses the comparative effectiveness of constitutional protection of indigenous rights in Canada and New Zealand using a perspective of "constitutional realism". The two constitutions offer a useful contrast of similar systems distinguished by distinctly contrasting directions over the past twentyfive years. The reality of Canadas constitutional development has seen more power accrue to the judicial branch of government. The reality of New Zealand's constitutional development has seen more power accrue to the political branches ofgovernment. The article considers the reality of the behaviour of these branches of government in each jurisdiction in relation to indigenous rights. It finds …

Who Cares What Thomas Jefferson Thought About Patents: Reevaluating The Patent "Privilege" In Historical Context, Adam Mossoff

ExpressO

The conventional wisdom holds that American patents have always been grants of special monopoly privileges lacking any justification in natural rights philosophy, a belief based in oft-repeated citations to Thomas Jefferson's writings on patents. Using privilege as a fulcrum in its analysis, this Article reveals that the history of early American patent law has been widely misunderstood and misused. In canvassing primary historical sources, including political and legal treatises, Founders' writings, congressional reports, and long-forgotten court decisions, it explains how patent rights were defined and enforced under the social contract doctrine and labor theory of property of natural rights philosophy. …

John Paul Stevens, Human Rights Judge, Diane Marie Amann

Scholarly Works

This article explores the nature and origins of Supreme Court Justice John Paul Stevens' engagement with international and foreign law and norms. It first discusses Stevens' pivotal role in the revived use of such norms to aid constitutional interpretation, as well as 1990s opinions testing the extent to which constitutional protections reach beyond the water's edge and 2004 opinions on post-September 11 detention. It then turns to mid-century experiences that appear to have contributed to Stevens' willingness to consult foreign context. The article reveals that as a code breaker Stevens played a role in the downing of the Japanese general …

Torture: Considering A Framework For Limiting Use, Scott J. Goldberg

ExpressO

Abu Graib, Guantanamo, the War on Terror—the debate over the use of torture is still very much alive in the world today. The debate can be divided into two questions: (1) whether there should be an actual absolute ban where torture is never allowed either ethically or legally, and (2) if torture should be allowed under certain circumstances what form of regulation is best able to ensure that it is used only in those most limited circumstances. Currently, there is an absolute ban in place, yet world leaders, applying a case-by-case utilitarian approach, in fact permit the use of torture …

Lex-Praxis Of Education Informational Privacy For Public Schoolchildren, Susan P. Stuart

Law Faculty Publications

No abstract provided.

From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber

Faculty Scholarship

No abstract provided.

Looking Ahead: October Term 2007, Glenn Harlan Reynolds

Scholarly Works

A look at some interesting cases likely to come before the U.S. Supreme Court, including Parker v. District of Columbia, the case in which the D.C. gun ban was overturned.

The Detention Of Material Witnesses And The Fourth Amendment, Joseph G. Cook

Scholarly Works

No abstract provided.

The Facts About Qualified Immunity, 55 Emory L. J. 229 (2006) (Reprinted In 22 Civil Rights Litigation And Attorney Fees Annual Handbook (Thomson West 2006)), Alan K. Chen

Sturm College of Law: Faculty Scholarship

This article provides a critical analysis of the Supreme Court's qualified immunity doctrine, which protects public officials from constitutional tort damages actions when their conduct does not violate...clearly established...constitutional rights of which a reasonable person would have known. It argues that there exists an irresolvable tension between the Court's objective that constitutional tort cases be terminated at an early stage of litigation and the inherently fact-based nature of the reasonableness inquiry that lies at the heart of the doctrine's analytical framework. The article surveys the Court's ill-fated and ill-advised attempts to refine the doctrine in a manner that consciously disregards …

Disrobed: The Constitution Of Modesty, Anita L. Allen

Villanova Law Review (1956 - )

No abstract provided.

Hail, No: Changing The Chief Justice, Edward T. Swaine

GW Law Faculty Publications & Other Works

How do we get a new chief justice? Traditionally, the President decides between nominating a newcomer and promoting a sitting associate justice, and places either nominee before the Senate for its advice and consent. But this is not constitutionally required, or at least not evidently so, and there is no better time to confront this fact. This short essay explains that Congress could develop a different mechanism for promoting justices without subjecting them to a second appointment - providing, for example, that the position would rotate among sitting justices based on seniority, or that the justices would elect a chief …

The Constitution As Black Box During National Emergencies: Comment On Bruce Ackerman's Before The Next Attack: Preserving Civil Liberties In An Age Of Terrorism, Martha Minow

Fordham Law Review

No abstract provided.

We Are All Post-9/11 Now, Kim Lane Scheppele

Fordham Law Review

No abstract provided.

Self-Defeating Proposals: Ackerman On Emergency Powers, Adrian Vermeule

Fordham Law Review

No abstract provided.

Restoring The Lost Constitution, Not The Constitution In Exile, Randy E. Barnett

Fordham Law Review

No abstract provided.

Constitutional Chicken Soup, Tracy E. Higgins

Fordham Law Review

No abstract provided.

Family Constitutions And The (New) Constitution Of The Family, Linda C. Mcclain

Fordham Law Review

No abstract provided.

Constitutional Politics And Text In The New Iraq: An Experiment In Islamic Democracy, Noah Feldman, Roman Martinez

Fordham Law Review

No abstract provided.

Constitutions As "Living Trees"? Comparative Constitutional Law And Interpretive Metaphors, Vicki C. Jackson

Fordham Law Review

No abstract provided.

The Internal Point Of View In Law And Ethics: Introduction, Benjamin C. Zipursky

Fordham Law Review

No abstract provided.

Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler

Fordham Law Review

No abstract provided.

Last Resort: The Threat Of Federal Steroid Legislation--Is The Proposed Legislation Constitutional?, Joshua Peck

Fordham Law Review

No abstract provided.

In Search Of A Conservative Vision Of Constitutional Privacy: Two Case Studies From The Rehnquist Court, Mark C. Rahdert

Villanova Law Review (1956 - )

No abstract provided.

Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg

Faculty Scholarship

Forever, it seems, the power to shape public morality has been seen as central to American governance. As one of the morality tradition's chief promoters, the Supreme Court itself has regularly endorsed and applauded government's police power to regulate the public's morality along with the public's health and welfare.

How, then, can we make sense of the Court's declaration in Lawrence v. Texas that the state's interest in preserving or promoting a particular morality among its constituents did not amount even to a legitimate interest to justify a Texas law criminalizing sexual intimacy between consenting adults? Has the Court unforeseeably …

The "Constitution Restoration Act" And Judicial Independence: Some Observations, Mark Tushnet

Case Western Reserve Law Review

No abstract provided.