Law Commons^™

Property And Liberty Reconsidered, Herman Belz

Vanderbilt Law Review

This perceptive, lucid, and sympathetic account of property rights in American constitutional law by Professor James W. Ely, Jr., is further evidence of the conservative challenge to liberal orthodoxy that has emerged in recent years in American historiography. That the book appears under the cosponsorship of the Organization of American Historians, one of the more militantly liberal scholarly associations in the United States, is a small but significant sign of the changing intellectual climate.

As conceived of in contemporary liberal historiography, protection of individual property rights is but one element of economic liberty. Equally if not more important, according to …

Justice Thurgood Marshall: Taking The Fourth Amendment Seriously , Tracey Maclin

Cornell Law Review

No abstract provided.

Penumbral Reasoning On The Right, Glenn Harlan Reynolds

Scholarly Works

The use of penumbral reasoning in cases like Griswold v. Connecticut has received considerable criticism from so-called conservative constitutional commentators, most notably Robert Bork. This essay demonstrates that penumbral reasoning is also widely used by courts in service of results generally regarded as conservative, with much less controversy. Penumbral reasoning, it suggests, is an essential implement in the judicial toolbox, and worthy of more respect, and use, from courts that care about fidelity to constitutional text and structure.

From The Soviet Committee Of Constitutional Supervision To The Russian Constitutional Court, Herbert Hausmaninger

Cornell International Law Journal

No abstract provided.

Quasi-Constitutional Law: Clear Statement Rules As Constitu, William N. Eskridge, Jr., Philip P. Frickey

Vanderbilt Law Review

In one of the most celebrated law review articles of all time, Karl Llewellyn argued that the traditional canons of statutory construction are not reliable guides to predicting judicial interpretations, because for every canon supporting one interpretation there is a counter-canon cutting against that interpretation. He accomplished his tour de force in large part by focusing upon the "referential" canons-rules referring the Court to an outside or preexisting source to determine statutory meaning'-and upon the "linguistic" canons-general conventions of language, grammar, and syntax. Llewellyn did not explore in any detail the "substantive" canons, the clear statement rules or presumptions of …

Free Speech In The United States And Canada, Kent Greenawalt

Law and Contemporary Problems

A comparison of freedom of speech in the US and Canada is presented. Supreme Court decisions on this issue in both countries are discussed. Both countries believe that free speech is central to liberal democracy.

A New Constitution For Romania And A New Idea For The Eastern European Bloc: An Independent Judiciary, Ben F. Overton

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Forum Non Conveniens And The Constitutional Right Of Access: A Commonwealth Caribbean Perspective, Winston Anderson

Florida State University Journal of Transnational Law & Policy

No abstract provided.

Capital Punishment And Equal Protection: Constitutional Problems, Race And The Death Penalty, Stan Robin Gregory

St. Thomas Law Review

This comment will (i) demonstrate that black defendants as well as black victims in death penalty cases, are not equally protected under the Fourteenth Amendment of the Constitution and (ii) propose a solution to provide blacks equal protection, as contemplated by the framers of the United States Constitution, when they face execution. This comment is not intended to present the argument that a death row inmate should share the same equal protection with that of law abiding citizens. Rather, this comment stands for the proposition that as a group, all death row inmates should be equally protected regardless of race.

The Fourteenth Amendment: Original Intent And Modern Possibility, Donald E. Lively

St. Thomas Law Review

This essay is derived in part from the author's book THE CONSTITUTION AND RACE (1992). Copyright 1992 by Donald E. Lively.

Back To The Future: Original Intent As A Means For Vitalizing The Fourteenth Amendment In The Context Of Race, Raneta J. Lawson

St. Thomas Law Review

Donald E. Lively's book The Constitution and Race exposes in a methodological way the historical origin of the conflict between symbolism and substance in the context of race. Lively chronicles two centuries of constitutional jurisprudence pertaining to race from the initial deferral of race-based issues at the nation's founding to the modem day catering to majoritarian interests that continues to subordinate racial concerns. Throughout this jurisprudential retrospective, Lively demonstrates how race-based considerations have permeated nearly every aspect of society and yet such considerations remain significantly unattended because of national policies that ultimately indulge competing priorities. Lively argues that a recognition …

Realigning Maternal/Fetal Interests In The Battle Against Substance Abuse, Jeanette Lewis

St. Thomas Law Review

America's "War on Drugs" has given rise to political and legal debate concerning the critical health problems presented by maternal drug abuse during pregnancy. The "War," largely characterized by criminal sanctions as opposed to preventative measures, indicates the social attitude and legal response to this crisis. Researchers estimate that 375,000 newborns may be harmed by maternal substance abuse in the United States each year. Furthermore, one in every ten babies born in urban areas has been exposed to cocaine in the womb. Given the epidemic proportions of America's drug problem and its agenda against drug use, it is surprising that …

The Constitutionality Of Section 27a Of The Securities Exchange Act: Is Congress Rubbing Lampf The Wrong Way, Craig W. Palm

Villanova Law Review (1956 - )

No abstract provided.

Transcending Conventional Supremacy: A Reconstruction Of The Supremacy Clause, S. Candice Hoke

Law Faculty Articles and Essays

Perhaps because the predominant strands of contemporary Supremacy Clause jurisprudence originate in two of the most venerable cases in the Court's history, the Court and academics alike have sidestepped some of their problematic pronouncements. In Part I, this Article questions the legacy of McCulloch v. Maryland and Gibbons v. Ogden, finding their Supremacy Clause principles unacceptably nationalistic and hence unfaithful to the balance of the Constitution. While their centralizing tendencies may have been understandable during the nation's infancy, their raison d'être has evaporated; the pendulum of state versus national regulatory power on matters other than individual liberties has swung too …

American Constitutional Conventions: The Judicially Unenforceable Rules That Combine With Judicial Doctrine And Public Opinion To Regulate Political Behavior, James G. Wilson

Law Faculty Articles and Essays

The concept of nonjusticiability, reflected primarily through the “political question” and the “standing” doctrines, fails to give the Supreme Court (and the rest of us) adequate guidance on how to resolve many constitutional disputes, such as impeachment procedures and standards, congressional expulsions, the scope of federal court jurisdiction, and the use of force abroad. These two doctrines put the Supreme Court on the horns of a false dichotomy. The Court tends to withdraw completely from an issue and from enforcing a textual passage, such as the Republican Guarantee Clause, whenever it makes a determination of nonjusticiability. Conversely, once the Court …

A Constitutional Analysis Of Compulsory School Attendance Laws In The Southeast: Do They Unlawfully Interfere With Alternatives To Public Education?, Mark H. Murphy

Georgia State University Law Review

No abstract provided.

Liberals And Balancing, Robert F. Nagel

Publications

No abstract provided.

Islamic Constitutionalism And The Concept Of Democracy, Azizah Y. Al-Hibri

Case Western Reserve Journal of International Law

No abstract provided.

Against Constitutional Theory, Paul Campos

Publications

No abstract provided.

Unfocused Governmental Interests, Robert F. Nagel

Publications

No abstract provided.

Is There A Natural Law Right To Privacy?, Ralph F. Gaebler

Articles by Maurer Faculty

No abstract provided.

Does The United States Need An Establishment Clause?: God Loveth Adverbs, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

The Supreme Court And The Fourteenth Amendment: The Unfulfilled Promise, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

The Dimensions Of American Constitutional Equality, J. Harvie Wilkinson Iii

Law and Contemporary Problems

Liberty and equality are the hallmark characteristics of any legal order. Constitutional equality in the US is discussed. The rights of equality are not economic in nature, and they are not subject to strictly majority rule.

Some Further Observations On Environmental Rights And Duties, Lynton K. Caldwell

Duke Environmental Law & Policy Forum

No abstract provided.

Islamic Constitutionalism And The Concept Of Democracy, Azizah Y. Al-Hibri

Law Faculty Publications

This article will discuss select, basic principles of Islamic law relating to democratic governance, pointing out in the process certain areas of disagreement surrounding them in the literature and the grounds for such disagreements. Part II of this article presents a brief overview of Islamic law in order to provide a foundation for later discussion. The article then assesses the Islamic system of government in light of two major principles of Western democracies. They are (1) the principle that the will of the people shall be the basis of the authority of the government (Principle A) and (2) the principle …

Lost Innocence And The Moral Foundation Of Law, Kate Nace Day

American University Journal of Gender, Social Policy & the Law

No abstract provided.

Equity And Hierarchy: Reflections On The Harris Execution, Steven G. Calabresi, Gary S. Lawson

Faculty Scholarship

The legal controversy surrounding the execution of Robert Alton Harris is only one in a series of cases over the past few months testing the proper relationship between the Supreme Court and the inferior federal courts. Controversy over inferior federal court grants or denials of injunctions concerning Haitian refugees1 and the French abortion pill2 have starkly raised, as does the Harris case3, profound questions concerning Supreme Court review of inferior court rulings on issues involving equitable relief. The Harris case did not display the American legal system at its finest. None of the participants in the process distinguished themselves-not the …

Abrams V. United States: Remembering The Authors Of Both Opinions, James F. Fagan Jr.

Touro Law Review

No abstract provided.

Constitutional Scepticism, Robin West

Georgetown Law Faculty Publications and Other Works

Interpretive constitutional debate over the last few decades has centered on two apparently linked questions: whether the Constitution can be given a determinate meaning, and whether the institution of judicial review can be justified within the basic assumptions of liberalism. Two groups of scholars have generated answers to these questions. The "constitutional faithful" argue that meaning can indeed be determinately affixed to constitutional clauses, by reference to the plain meaning of the document, the original intent of the drafters, evolving political and moral norms of the community, or the best political or moral philosophical theory available and that, because of …