Law Commons^™

Textualism's Selective Canons Of Statutory Construction: Reinvigorating Individual Liberties, Legislative Authority, And Deference To Executive Agencies, Bradford Mank

Faculty Articles and Other Publications

This Article demonstrates that textualist Judges, most notably Justices Scalia, Thomas, and, to a lesser extent, Kennedy, have applied some canons too aggressively, and slighted others. Textualist Judges have overused clear-statement rules that narrow statutory meaning, especially as a means to promote federalism and states' rights. On the other hand, textualists have neglected canons that promote individual liberty or executive authority Because canons must be applied on a case-by-case basis and different canons can conflict, it is impossible to formulate one rule for how they should be applied. Nevertheless, the common textualist approach of selectively favoring some canons at the …

How Conservative Is The Rehnquist Court--Three Issues, One Answer, Staci Rosche

Fordham Law Review

No abstract provided.

Thurgood Marshall: Legal Strategist For The Civil Rights Movement, F. Michael Higginbotham, José F. Anderson

All Faculty Scholarship

This brief article covers the career of attorney and U.S. Supreme Court Justice Thurgood Marshall, covering his early days as an attorney working for the NAACP, up to his career on the nation's highest court. Of particular interest are the hardships of his early days as a lawyer, as one of only 32 African American lawyers in Maryland in 1935. The key cases during his career are touched upon, along with the legal strategies used to further the cause of civil rights.

The Supreme Court Opens Its Mind, And Medical Books, And Refuses ‘You Can Walk, You Can Talk, You Don’T Seem Sick Enough’ Approach To Asymptomatic Hiv Coverage Under The Americans With Disabilities Act, Rebecca Walker Embry

Saint Louis University Public Law Review

No abstract provided.

Warning! The Manufacturer Of This Product May Have Engaged In Cover-Ups, Lies, And Concealment: Making The Case For Limitless Punitive Awards In Product Liability Lawsuits, Cynthia R. Mabry

Indiana Law Journal

No abstract provided.

The Presence Of A Web Site As A Constitutionally Permissible Basis For Personal Jurisdiction, Christine E. Mayewski

Indiana Law Journal

No abstract provided.

Rethinking The Supreme Court's Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine

Fordham Urban Law Journal

Part I of this Article discusses Supreme Court cases prior to 1981, in which the Court first expressed its hands-off approach to deciding questions of religious practice and belief. This Part suggests that in these decisions, as a result of a proper concern for religious autonomy, the Court already began the process of expanding the principle of judicial non-interference, at the cost of sacrificing effective adjudication of important constitutional issues. Part II of this Article critiques the Court's approach in Free Exercise Clause cases, identifying different problems that have arisen as a result of the Court's approach. This Part argues …

Decision: How The Supreme Court Decides Cases, Martin D. Gelfand

Case Western Reserve Journal of International Law

No abstract provided.

"Compelled By Conscientious Duty": Village Of Euclid V. Ambler Realty Co. As Romance, Michael Allan Wolf

Law Faculty Publications

In early 1851, Nathaniel Hawthorne penned an intriguing preface to his latest work--The House of the Seven Gables. Hawthorne drew a meaningful (if rarely appreciated) distinction:

When a writer calls his work a Romance, it need hardly be observed that he wishes to claim a certain latitude, both as to its fashion and material, which he would not have felt himself entitled to assume, had he professed to be writing a Novel. The latter form of composition is presumed to aim at a very minute fidelity, not merely to the possible, but to the probable and ordinary course of man's …

Human Dignity, Privacy, And Personality In German And American Constitutional Law, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Of Ivory Columns And Glass Ceilings: The Impact Of The Supreme Court Of The United States On The Practice Of Women Attorneys In Law Firms Comment., Nancy L. Farrer

St. Mary's Law Journal

This Commentary examines the effect United States Supreme Court decisions on sex discrimination in the legal profession. Discrimination against women currently appears to be alive and well in the legal field. Decisions like Bradwell v. Illinois and In re Lockwood frustrated women attorneys for over a century, allowing states to determine women were unfit for occupations in areas like law. Hishon v. King & Spalding, and later, Price Waterhouse v. Hopkins, applied Title VII protections to evaluations of potential law firm partners—a process previously closed and unassailable for most of the history of the legal profession. More recently, Harris v. …

Common Law Elements Of The Section 1983 Action, Jack M. Beermann

Faculty Scholarship

This Article explores the role of the common law in Supreme Court interpretation and application of § 1983, which grants a cause of action for violations of constitutional rights committed "under color of any [state] statute, ordinance, regulation, custom or usage."' I argue that the common law has served primarily to narrow the reach of § 1983, and that this is inappropriate in light of the broad statutory language and the absence of good evidence that the enacting Congress intended a narrower application than the statutory language indicates.

Book Review. American Constitutionalism: From Theory To Politics, Daniel O. Conkle

Articles by Maurer Faculty

No abstract provided.

Writing In The Margins: Brennan, Marshall, And The Inherent Weaknesses Of Liberal Judicial Decision-Making (Essay), Donna F. Coltharp

Faculty Articles

No abstract provided.

William J. Brennan, Jr., American – In Memoriam, Gerard E. Lynch

Faculty Scholarship

At Justice Brennan's funeral, President Clinton spoke of the justice's enormous impact on our country's law-thirty-four years on the Supreme Court, over 1300 opinions authored, many of them landmarks: Baker v. Carr, opening the way to one person, one vote; Craig v. Boren, wielding the Equal Protection Clause to strike down discrimination on the basis of sex; Goldberg v. Kelly, insisting on the right of the poorest citizens of the administrative state to be heard in the face of an arbitrary bureaucracy; New York Times Co. v. Sullivan, articulating the modem rationale for a free press; …

Will The Punishment Fit The Victims? The Case For Pre-Trial Disclosure, And The Uncharted Future Of Victim Impact Information In Capital Jury Sentencing, José F. Anderson

All Faculty Scholarship

The United States Supreme Court decision in Payne v. Tennessee, upholding the use of victim impact statements in capital jury sentencing proceedings, marked one of the most dramatic reversals of a precedent in the history of United States constitutional jurisprudence. The decision in Payne expressly overruled Booth v. Maryland decided only four years earlier. The Booth case rejected the use of victim impact statements in capital sentencing cases that involved juries. In Payne, the Supreme Court made it clear that victims were entitled to offer, and juries were permitted to consider, the effect that a "death eligible" homicide had on …

The Constitutional Right To Die: Ethical Considerations, Lawrence O. Gostin

Georgetown Law Faculty Publications and Other Works

In this commentary, the author first looks at some ethical reasoning supporting physician-assisted dying. Second, he examines some of the lines that have been drawn between withdrawing and withholding life-sustaining treatment on the one hand, and physician-assisted dying on the other. Finally, he relates both of these matters to constitutional reasoning, beginning with Cruzan and ending with the cases before the Supreme Court at the time of the article's publication.

Congressional Self-Discipline: The Constitutionality Of Supermajority Rules, Susan Low Bloch

Georgetown Law Faculty Publications and Other Works

Congress needs to be more disciplined. It has at times become sloppy and even cavalier. When, for example, Congress enacted the federal Gun-Free School Zone Act of 1990, it was asking for trouble. Neither the legislation nor the legislative history said anything about any effect on interstate commerce. It was therefore not surprising to see the Supreme Court strike the law down in United States v. Lopez.

Old Chief V. United States: Stipulating Away Prosecutorial Accountability?, Daniel Richman

Faculty Scholarship

Earlier this year, in Old Chief v. United States, the Supreme Court finally resolved a circuit split on a nagging evidentiary issue: When a defendant charged with being a convicted felon in possession of a firearm offers to satisfy one of the statute's elements by stipulating to the existence of a prior felony conviction, may the government decline the stipulation and prove the existence and the nature of that prior felony?

The question of evidence law resolved in Old Chief is not particularly earth-shattering. Indeed, while the Court divided five to four on the issue, neither Justice Souter's opinion …

Limits On Preemption And Punitive Damages: Can They Be Related?, Peter Zablotsky

Scholarly Works

No abstract provided.

Supreme Court, New York County Stringfellow's Of New York Ltd. V. City Of New York

Touro Law Review

No abstract provided.

Public Welfare, Supreme Court Monroe County, Brown V. Wing

Touro Law Review

No abstract provided.

Right To Counsel, Supreme Court, Appellate Division Second Department, People V. Taylor

Touro Law Review

No abstract provided.

Self-Incrimination, Supreme Court, Appellate Division Second Department People V. Hendricks

Touro Law Review

No abstract provided.

Section 1983 In The Second Circuit, Honorable George C. Pratt

Touro Law Review

No abstract provided.

It Was A Very Good Year - For The Government: The Supreme Court's Major Criminal Rulings Of The 1995-1996 Term, William E. Hellerstein

Touro Law Review

No abstract provided.

Race, Redistricting And A Republican Poll Tax: The Supreme Court's Voting Rights Decisions Of The 1995-96 Term, Frank Parker

Touro Law Review

No abstract provided.

Limits On Preemption And Punitive Damages: Can They Be Related?, Peter Zablotsky

Touro Law Review

No abstract provided.

Character And Fitness Requirements For Bar Admission In New York, Avrom Robin

Touro Law Review

No abstract provided.

What Is Eleventh Amendment Immunity?, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The Supreme Court's Eleventh Amendment decisions give conflicting signals about what the Amendment does. On one view, the Amendment functions as a forum-allocation principle--immunizing states from liability in suits filed in federal court, but leaving open the possibility that states may be compelled to entertain suits against themselves in their own courts. A separate line of cases, however, implies that state courts enjoy an immunity from suit in their own courts and that nothing in the Constitution withdraws such immunity; on this view, the Eleventh Amendment, by protecting the states from suit in the federal courts, effectively immunizes the states …