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Articles 1 - 12 of 12
Full-Text Articles in Law
Constitutional Law—Separation Of Powers—Restoring The Constitutional Formula To The Federal Judicial Appointment Process: Taking The Vice Out Of "Advice And Consent", Jason Eric Sharp
University of Arkansas at Little Rock Law Review
No abstract provided.
Functional Departmentalism And Nonjudicial Interpretation: Who Determines Constitutional Meaning?, Dawn E. Johnsen
Functional Departmentalism And Nonjudicial Interpretation: Who Determines Constitutional Meaning?, Dawn E. Johnsen
Law and Contemporary Problems
Johnsen examines the roles of nonjudicial entities--especially the Congress and the president--in the development of constitutional meaning. Although the other two branches are fearful of challenging judiciary supremacy, functional departmentalism may offer a certain degree of autonomy from the Court.
Pour Encourager Les Autres? The Curious History And Distressing Implications Of The Criminal Provisions Of The Sarbanes-Oxley Act And The Sentencing Guidelines Amendments That Followed, Frank O. Bowman Iii
Pour Encourager Les Autres? The Curious History And Distressing Implications Of The Criminal Provisions Of The Sarbanes-Oxley Act And The Sentencing Guidelines Amendments That Followed, Frank O. Bowman Iii
Faculty Publications
This Article presents a legislative history of the Sarbanes-Oxley Act and the subsequent amendments to the U.S. Sentencing Guidelines. It explains the surprising interaction between the civil and criminal provisions of Sarbanes-Oxley. The Article also provides a dramatic and detailed account of the interplay of political interests and agendas that ultimately led to large sentence increases for serious corporate criminals and blanket sentence increases for virtually all federal fraud defendants. The tale illuminates the substance of the new legislation and sentencing rules, but is more broadly instructive regarding the distribution of power over criminal sentencing between the three branches and …
Toward A New Constitutional Anatomy, Victoria Nourse
Toward A New Constitutional Anatomy, Victoria Nourse
Georgetown Law Faculty Publications and Other Works
There is an important sense in which our Constitution's structure is not what it appears to be--a set of activities or functions or geographies, the 'judicial" or the "executive" or the "legislative" power, the "truly local and the truly national. "Indeed, it is only if we put these notions to the side that we can come to grips with the importance of the generative provisions of the Constitution: the provisions that actually create our federal government; that bind citizens, through voting, to a House of Representatives, to a Senate, to a President, and even, indirectly, to a Supreme Court. In …
Judicial Independence In Virginia, W. Hamilton Bryson
Judicial Independence In Virginia, W. Hamilton Bryson
University of Richmond Law Review
No abstract provided.
Judicial Abstinence: Ninth Circuit Jurisdictional Celibacy For Claims Brought Under The Federal Declaratory Judgment Act, Steven Plitt, Joshua D. Rogers
Judicial Abstinence: Ninth Circuit Jurisdictional Celibacy For Claims Brought Under The Federal Declaratory Judgment Act, Steven Plitt, Joshua D. Rogers
Seattle University Law Review
This Article focuses upon abstention in the context of the Federal Declaratory Judgment Act ("FDJA"). Part I will discuss the various forms of abstention and the historical progression and development of the abstention doctrine in federal case law, setting the background for the expansive holding in Huth v. Hartford Insurance Company of the Midwest. Part II of the article will discuss the procedural history of Huth and the respective rulings of the district court and the Ninth Circuit Court of Appeals as it relates to their application of the abstention doctrine. Part III will then analyze the numerous, and potentially …
Separation Of Powers In Ohio: A Critical Analysis, Curtis Rodebush
Separation Of Powers In Ohio: A Critical Analysis, Curtis Rodebush
Cleveland State Law Review
The goal of this Article is to provide a basic framework from which to begin a separation of powers analysis under the Ohio Constitution. In addition, this Article offers some insights into how a separation of powers controversy should be dissected and suggests some directions that Ohio courts should take in the future. Part I of this Article presents useful background information on the separation of powers doctrine, including its origin, its treatment in the Ohio Constitution, predominant theories of analysis, and relevant Ohio cases. Part II (A) hypothesizes a general approach with which to begin a separation of powers …
Recalibrating Justiciability In Ohio Courts, Michael E. Solimine
Recalibrating Justiciability In Ohio Courts, Michael E. Solimine
Cleveland State Law Review
The term "separation of powers" does not appear in either the United States or Ohio Constitutions, but the concept has important implications for the adjudication of rights under both documents. In federal courts, litigants must possess certain characteristics, summarized under the rubric of "standing," to pursue such cases. To have standing, litigants traditionally must have suffered a concrete and ripe injury that was the result of the allegedly unlawful conduct. And even when those criteria are satisfied, cases that call for "political questions" to be resolved can be dismissed by federal judges. These limits to federal court authority are drawn …
Federalism Re-Constructed: The Eleventh Amendment's Illogical Impact On Congress' Power, Marcia L. Mccormick
Federalism Re-Constructed: The Eleventh Amendment's Illogical Impact On Congress' Power, Marcia L. Mccormick
All Faculty Scholarship
The Constitution is designed to protect individual liberty and equality by diffusing power among the three branches of the federal government and between the federal and state governments, and by providing a minimum level of protection for individual rights. Yet, the Supreme Court seems to think that federalism is about protecting states as states rather than balancing governmental power to protect individuals. In the name of federalism, the Supreme Court has been paring away at Congress' power to enact civil rights legislation. In doing so, it has transformed the Fourteenth Amendment into a vehicle for protecting states rights rather than …
Functional Departmentalism And Nonjudicial Interpretation: Who Determines Constitutional Meaning?, Dawn E. Johnsen
Functional Departmentalism And Nonjudicial Interpretation: Who Determines Constitutional Meaning?, Dawn E. Johnsen
Articles by Maurer Faculty
Published as part of a Duke Law School symposium on Conservative and Progressive Legal Orders, this article considers the appropriate role of the political branches - Congress and the President - in the development of constitutional meaning, including the extent of presidential and congressional authority to act on constitutional views at odds with judicial doctrine. The article discusses deficiencies in strong forms of both judicial supremacy (such as that behind the Rehnquist Court's recent limits on Congress's section 5 authority) and what is described in the academic literature as departmentalism (which emphasizes near-plenary authority for each branch to act on …
Public Tort Litigation: Public Benefit Or Public Nuisance?, Richard C. Ausness
Public Tort Litigation: Public Benefit Or Public Nuisance?, Richard C. Ausness
Law Faculty Scholarly Articles
One of the latest developments in products liability law is "public tort" litigation. Public tort or government-sponsored lawsuits are actions by federal, state, or local government entities to recover the cost of public services provided to persons who have been injured as the result of a defendant's alleged misconduct. The best known example is the tobacco litigation of the mid-1990s in which more than forty states brought suit against the leading tobacco companies to recoup the cost of providing health care services to indigent smokers. Eventually, the tobacco companies agreed to pay the states more than $200 billion and also …
Beyond Formalism In Foreign Affairs: A Functional Approach To The Alien Tort Statute, John C. Yoo, Julian Ku
Beyond Formalism In Foreign Affairs: A Functional Approach To The Alien Tort Statute, John C. Yoo, Julian Ku
John C Yoo
This paper discusses the functional ability of federal courts to incorporate customary international law (CIL) through the vehicle of the Alien Tort Statute. In last Term's Sosa v. Alvarez Machain, the Supreme Court concluded that the Alien Tort Statute (ATS) is merely a jurisdictional statute, but also refused to stop the lower courts from allowing aliens to seek damages in federal court for certain international law violations. We use the Court's under-theorized conclusion as an opportunity to move beyond largely inconclusive formalist debates about the ATS's text, structure, and history. Instead, we conduct a comparative institutional analysis of the role …