Law Commons^™

The Proper Scope Of The Police Power, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this Article, I will contend that the Constitution is not really silent at all on the proper scope of state powers; that the original meaning of what the Constitution says requires that state powers over their citizens have fairly easy to identify limits - though as with most constitutional provisions, applying these limits to particular cases requires judgment and is not a matter of strict deductive logic. This account will require me to briefly review the method of interpretation I advocate - original meaning originalism-and its limits. These limits require that interpretation of original meaning be implemented by means …

Out Of Bounds, Louis Michael Seidman

Georgetown Law Faculty Publications and Other Works

Lawrence v. Texas creates a crisis for inclusive constitutionalism. Too often, advocates of inclusion and tolerance wish to include only those ideas and groups with which they agree. The test for true inclusion and tolerance, however, is whether we are willing to protect groups when they engage in conduct of which we disapprove. It follows that the boundaries of inclusion cannot be established simply by moral argument; yet, any plausible version of constitutional law must use some method to bound the people and activity that it protects. Defenders of inclusive constitutionalism have not been successful in identifying a method, independent …

Federalism And The Treaty Power, Curtis A. Bradley

Faculty Scholarship

in presentations for: Treaties in U.S. Law: New Debates on Old Ideas

Making The Right Gamble: The Odds On Probable Cause, Ronald J. Bacigal

Law Faculty Publications

Again, is there probable cause to detain, arrest or search each passenger? Is there probable cause to search each passenger's luggage, their autos parked at the airport and their residences? This article seeks the answer to the hypotheticals in sources ranging from the judiciary's own pronouncements on probable cause to linguistics, history mathematics and cognitive psychology.

Requiem, Henry Paul Monaghan

Faculty Scholarship

Besides being brief, it is not apparent what one should say. No doubt due to my own upbringing, I cannot view this an occasion for a celebration of a life that ended just a handful of hours ago. Nor do I view this an occasion for a discussion of John's work. The New York Times provided a splendid account of that. I would add only that John received an honorary LL.D. from Yale six months ago. The opening sentence of the accompanying citation said it all: "Your work set the standard for constitutional law scholarship for our generation." I am …

With Strings Attached: The Limits On Local Control, Richard Briffault

Faculty Scholarship

In a December 2003 decision, a Colorado trial court judge invalidated the state's new school voucher program. The decision was unusual in that the court relied not on traditional separation-of-church-and-state concerns, but instead on a provision of the Colorado state constitution that vests control over public education in local school boards. The court held that by failing to give local school boards any" input whatsoever into the instruction to be offered by the private schools" that accepted voucher students, the state had violated the constitutional provision that grants local boards "control of instruction in the public schools of their respective …

Of Power And Responsibility: The Political Morality Of Federal Systems, Daniel Halberstam

Articles

In comparative constitutional discourse, Americans are from Mars and Europeans from Venus; we eagerly tell our European counterparts about the U.S. constitutional experience, but rarely do we listen when they talk to us about their own. Whereas Europeans routinely examine U.S. constitutionalism as an illuminating point of comparison or contrast, as Americans, we seem convinced that we have nothing to learn from looking abroad. This Article challenges that assumption. In particular, it argues that American courts and scholars have overlooked an important alternative to the dominant interpretation of the division of powers in the United States by ignoring the theory …

A Room Of One's Own: Morality And Sexual Privacy After Lawrence V. Texas, Marybeth Herald

ExpressO

No abstract provided.

Holistic Interpretation, Comparative Constitutionalism, And Fiss-Ian Freedoms, Vicki C. Jackson

University of Miami Law Review

No abstract provided.

Constitutional Law—Education And Equal Protection—Towards Intelligence And Virtue: Arkansas Embarks On A Court-Mandated Search For An Adequate And Equitable School Funding System. Lake View School District No. 25 V. Huckabee, 351 Ark. 31, 91 S.W.3d 472 (2002)., Brian E. Carter

University of Arkansas at Little Rock Law Review

No abstract provided.

Constitutional Law—True Threat Doctrine And Public School Speech—An Expensive View Of A School's Authority To Discipline Allegedly Threatening Student Speech Arising Off Campus. Doe V. Pulaski County Special School District, 306 F.3d 616 (8th Cir. 2002)., William Bird

University of Arkansas at Little Rock Law Review

No abstract provided.

Judicial Independence And The Ambiguity Of Article Iii Protections, Tracey E. George

Vanderbilt Law School Faculty Publications

Is the federal judiciary truly an independent body? A quick glance at the Constitution would suggest the answer is yes. The Constitution provides for life tenure and a difficult removal process for federal judges that together, as the common wisdom goes, shield federal judges from the shifting winds of the more political branches and the public at large. The author of this essay argues, however, that on a closer examination of the protections provided for by the Constitution, judicial independence might be more mirage than truism. Threats to judicial independence arise not only externally through the actions of the other …

The (Un)Favorable Judgment Of History: Deportation Hearings, The Palmer Raids, And The Meaning Of History, Harlan G. Cohen

Scholarly Works

As Americans respond to the events of September 11, 2001, they are being forced to contemplate their place in American history-past, present, and future. This has become particularly stark in the fight over secret deportation hearings. Following September 11, Attorney General John Ashcroft announced that the deportation hearings of "special interest" aliens would be closed to the public. Applying Richmond Newspapers's two-pronged logic-and-experience test, the Third and Sixth Circuits subsequently split over the constitutionality of the blanket closure. At the heart of their disagreement was the scarce history of deportation hearings and whether such hearings had been closed in the …

Speaking Outdoors, Lewis H. Larue

Scholarly Articles

Not available.

Marshall V Madison: The Supreme Court And Original Intent, 1803-1835, Gordon Lloyd

School of Public Policy Working Papers

Should the justices of the Supreme Court rely on “original intent” as the foundation for constitutional interpretation? Or should they be free to interpret the Constitution in light of hermeneutical approaches created by current philosophies of law? This essay examines the Marshall Court to determine whether its opinions take their bearings from the American Founding or instead rely on a philosophy of jurisprudence that can be separated from the Founding. The purposes of this essay are fourfold: 1) to provide a comprehensive account of the use of the Framers by the Marshall Court, 2) address the normative question of the …

When Inter-Branch Norms Break Down: Of Arms-For-Hostages, Orderly Shutdowns, Presidential Impeachments, And Judicial Coups, Peter M. Shane

Cornell Journal of Law and Public Policy

No abstract provided.

Interpretative Equality As A Structural Imperative (Or "Pucker Up And Settle This!"), Gary S. Lawson

Faculty Scholarship

To serious students of the Constitution, Chief Justice Marshall's discussion of judicial review in Marbury v. Madisont was about judicial equality-the power of the courts, co-equal to the similar powers of the legislative and executive departments, to construe and apply the Constitution in the course of their duties. To less serious students of the Constitution, Marbury was about judicial supremacy-the supposedly paramount power of courts to interpret and apply the Constitution in a fashion that binds other legal actors, including the legislative and executive departments and state officials.

Blakely And Missouri's Grandparent Visitation Statute: An Abridgment Of Parents' Constitutional Rights - Blakely V. Blakely, Michael Hamlin

Missouri Law Review

Universally, states have enacted statutes granting nonparental parties, specifically grandparents, the right to petition courts for visitation of minor children. However, the states differ significantly in the manner in which they grant these parties that right. A recent United States Supreme Court decision, Troxel v. Granville, addressed the issue of the constitutionality of nonparental visitation statutes. Unfortunately, the Court failed to provide much clarity to the states in deciding constitutional challenges to these statutes. The Note explores the analysis employed by the Missouri Supreme Court in Blakely v. Blakely and argues that Missouri’s grandparent visitation statute is unconstitutional.

National Security At What Price: A Look Into Civil Liberty Concerns In The Information Age Under The Usa Patriot Act Of 2001 And A Proposed Constitutional Test For Future Legislation, Jacob R. Lilly

Cornell Journal of Law and Public Policy

No abstract provided.

The Federalist Papers As Reliable Historical Source Material For Constitutional Interpretation, Seth Barrett Tillman

West Virginia Law Review

No abstract provided.

School Privatization And Student Rights: A Comparison Of Canadian And American Law Regarding Searches And Seizures Conducted In Privatized Schools, David J. D'Agata

University of Miami Inter-American Law Review

No abstract provided.

The War On Terror: Constitutional Governance In A State Of Permanent Warfare, W. Wesley Pue

Osgoode Hall Law Journal

This article assesses Canada's principal legal responses to the challenge presented by terrorism in the aftermath of the September 11, 2001 attacks on the United States. A review of major federal "anti-terrorism" legislation reveals a legislative response that fundamentally violates core constitutional principles while failing to significantly enhance public safety.

One Strike And You're Out? Constitutional Constraints On Zero Tolerance In Public Education, Eric D. Blumenson, Eva Nilsen

Faculty Scholarship

Various studies reported that juvenile crimes of violence fell in the 1990s by as much as 30%. ¹⁰ In high schools specifically, the incidence of threatening behavior in 1996 changed little from two decades earlier, ¹¹ with the chances of being killed in school far less than being struck by lighting. ¹² The "juvenile crime bomb" proved illusory (as Delulio himself eventually acknowledged ¹³), but the severe measures designed to deal with it remain entrenched. Zero tolerance has taken on a life of its own, partly because public misperception remains high, ¹⁴ and partly because in our hardheaded times …

Books Received, Journal Editor

Vanderbilt Journal of Transnational Law

THE DISCONNECTED By Penn Kimball New York: Columbia University Press, 1972.Pp. 317. $2.95/Paperback

PUBLIC ADMINISTRATION (2d ed.). Edited by Robert T. Golembiewski, Frank Gibson & Goeffrey Y. Cornog, Chicago: Rand McNally & Company, 1972. Pp. xxxix, 617.$6.95/Paperback

THE AUSTRIAN-GERMAN ARBITRAL TRIBUNAL By Ignaz Seidl-Hohenveldern Syracuse:Syracuse University Press, 1972. Pp. xi, 261. $15.00.

CONSTITUTIONAL RIGHTS OF PRISONERS By John W. Palmer Cincinnati: The W.H.Anderson Company, 1973. Pp. xv, 710.

CONSTITUTIONAL RIGHTS OF THE ACCUSED: PRETRIAL RIGHTS By Joseph G. Cook Rochester: The Lawyer's Co-operative Publishing Company, 1972. Pp. ix, 572. $35.00.

CRIMINAL SENTENCES: LAW WITHOUT ORDER By Marvin E. Frankel New …

It's Not Really "Assassination": Legal And Moral Implications Of Intentionally Targeting Terrorists And Aggressor-State Regime Elites, Robert F. Turner

University of Richmond Law Review

No abstract provided.

Drug Regulations And The Constitution After Western States, Margaret Gilhooley

University of Richmond Law Review

No abstract provided.

Assassination, The War On Terrorism, And The Constitution, Rodney A. Smolla

University of Richmond Law Review

No abstract provided.

Proposal For A New Executive Order On Assassination, Jeffrey F. Addicott

University of Richmond Law Review

No abstract provided.

Standing For Nothing: The Paradox Of Demanding Concrete Context For Formalist Adjudication, David M. Driesen

College of Law - Faculty Scholarship

This article examines a paradox found in public law cases. While justiciability doctrines aim to provide concrete context for adjudication of public law questions by insisting upon individual injury, often the Supreme Court ignores the litigants' injuries when it turns to the merits of cases. Examination of this paradox leads to a fuller appreciation of the structure and nature of public law. In particular, it sheds light on a recent debate in leading law reviews about whether constitutional litigation should be seen as about individual rights or the validity of legal rules. It also raises serious questions about the modern …

Theories Of Constitutional Self-Government: Editors' Foreword

Fordham Law Review

No abstract provided.