Law Commons^™

William J. Brennan, Jr., Peter L. Strauss

Faculty Scholarship

When I was privileged to be Justice Brennan's law clerk, he had not yet earned even from his own law school the affection and respect that have prompted the editors of this law review, and doubtless many others, to offer an issue in dedication to him. In the three decades following, he made his claim to both unmistakably clear. His extraordinary tenure on the Court produced 1360 opinions, spread over the last 146 of the Court's first 497 volumes. Nearly a decade after his retirement, it is probably still the case that more opinions in constitutional law teaching materials carry …

Section 1983 Litigation, Martin A. Schwartz

Scholarly Works

No abstract provided.

Making Constitutional Doctrine In A Realist Age, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this article the author considers three examples of modern constitutional doctrine that show how judges have stolen bits and pieces from popularized skepticisms about the job of judging and have molded this stolen rhetoric into doctrine. In the first example, she asks whether constitutional law's recent penchant for doctrinal rules based on "clear law" could have existed without the modern age's obsession with legal uncertainty. In the second, the author considers whether our contemporary rhetoric of constitutional "interests" and "expectations" reflects modern critiques of doctrine as failing to address social needs. In the third, she asks how an offhand …

The Supreme Court And Local Government Law 1995-96 Term Introduction, Dean Howard A. Glickstein

Touro Law Review

No abstract provided.

Right To Trial By Jury, Supreme Court, Appellate Division Fourth Department People V. Perkins

Touro Law Review

No abstract provided.

Search And Seizure, Supreme Court, Bronx County People V. Williams

Touro Law Review

No abstract provided.

Having It Both Ways: Proof That The U.S. Supreme Court Is "Unfairly" Prosecution-Oriented, Christopher Slobogin

Vanderbilt Law School Faculty Publications

If the assertions that this essay makes about the Court's "unfair" prosecution-orientation withstand scrutiny," two further conclusions might follow. First, the highest court in the country is so fixated on ensuring that a particular side wins that it is willing with some frequency to sacrifice the most basic attribute of any court worthy of the name-the appearance of fairness. This conclusion is a much more fundamental challenge to the Court's integrity than is the simple acknowledgement that a majority of the Justices are biased in favor of the government. Second, to the extent the Court's unfairness becomes common knowledge, its …

The Illiberal Court, David F. Forte

Law Faculty Articles and Essays

Justice Scalia casts up a dire warning that not only has the Supreme Court in many ways removed the Constitution from the Framers, it is also removing the democratic process from the people and their representatives.

Religious Visitation Constraints On The Noncustodial Parent: The Need For National Application Of A Uniform Compelling Interest Test, Kevin S. Smith

Indiana Law Journal

No abstract provided.

At Loggerheads: The Supreme Court And Racial Equality In Public School Education After Missouri V. Jenkins, Roberta M. Harding

Law Faculty Scholarly Articles

June 12th of 1995 marked a somber occasion in the annals of school desegregation litigation. On that day, the United States Supreme Court sent disturbing messages in its opinion in Missouri v. Jenkins. The Court's decision hinders achievement of the objective of school desegregation litigation—providing equal educational opportunities for African-American public school children—and detrimentally impacts other substantive areas of civil rights litigation. This article examines what I believe are several important general consequences of Jenkins's the impairment of a trial judge's discretionary equitable remedial powers; the Court's establishment of a new agenda that sacrifices the interests of African-American …

Perspectives On Missouri V. Jenkins: Abandoning The Unfinished Business Of Public School Desegregation 'With All Deliberate Speed', José F. Anderson

All Faculty Scholarship

This essay examines the continuing struggle that centers around whether this country will allow public elementary and secondary school officials to use race-conscious, and sometimes aggressive, tools to eliminate the continuing presence of predominantly single race schools in most of our urban centers. Despite the promise of Brown v. Board of Education, the efforts to desegregate schools in some areas of America appear to have eliminated only the legal barriers to truly integrated schools. Many school systems have simply resegregated through demographic shifts prompted by urban decay and "white flight." In Missouri v. Jenkins, the Supreme Court struck down certain …

Faith In Fantasy: The Supreme Court's Reliance On Commutation To Ensure Justice In Death Penalty Cases, Victoria J. Palacios

Vanderbilt Law Review

Since scarcely a decade after Furman v. Georgia,' the Supreme Court has struggled to avoid review of death penalty cases by narrowing the grounds defendants can use to challenge their sentences, as well as the procedures they can use to make those challenges. The Court supports its jurisprudence and the deregulation of death with an important but unexamined assumption: whatever shortcomings exist in the administration of the death penalty, ultimately injustice can and will be avoided by the exercise of the commutation power at the state level.

This Article argues that such an assumption is unwarranted. By substituting the fantasy …

Consistently Inconsistent: The Supreme Court And The Confusion Surrounding Proportionality In Non-Capital Sentencing, Steven P. Grossman

All Faculty Scholarship

(Adapted by permission from 84 Ky. L. J. 107 (1995)) This article examines the Supreme Court's treatment of the Eighth Amendment with respect to claims of excessiveness regarding prison sentences. Specifically, it addresses the issue of whether and to what degree the Eighth Amendment requires that a punishment not be disproportional to the crime punished. In analyzing all of the modern holdings of the Court in this area, one finds significant fault with each. The result of this series of flawed opinions from the Supreme Court is that the state of the law with respect to proportionality in sentencing is …

The Damaging Consequences Of The Rehnquist Court's Commitment To Color-Blindness Versus Racial Justice , Frank R. Parker

American University Law Review

No abstract provided.

Toward A "Due Foundation" For The Separation Of Powers: The Federalist Papers As Political Narrative, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

During the past quarter century, lawyers have become strangely comfortable with descriptions of our government's structure that would, to an untutored ear, speak contradiction. We are quite satisfied to say that governmental powers are separate and shared, departments distinct and overlapping, functions autonomous and interdependent. We have settled into these contradictions as we would a roomy chair: talking this way is no longer controversial but taken for granted, uttered with a knowing wink, perceived as the starting point of sophisticated analysis. A not "entirely separate," but "entirely free," set of departments is the only way we can think about the …

Is A Textualist Approach To Statutory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better Than Judicial Literalism, Bradford Mank

Faculty Articles and Other Publications

This Article provides both anecdotal evidence and a more theoretical argument for why textualist statutory interpretation is not the best approach to address environmental. issues.

Doubting Thomas: Confirmation Veracity Meets Performance Reality, Joyce A. Baugh, Christopher E. Smith

Seattle University Law Review

At the close of the United States Supreme Court's 1994 term, Justice Clarence Thomas became the center of news media attention for his important role as a prominent member of the Court's resurgent conservative bloc. More frequently than in past terms, Thomas's opinions articulated the conservative position for his fellow Justices. According to one report, "The newly energized Thomas has shown little hesitancy this term in leading the conservative charge. Another article referred to Thomas's "full-throated emergence as a distinctive and articulate judicial voice." Thomas's new prominence, assertiveness, and visibility have been attributed to his emergence from the shadows of …

When The Constable Blunders: A Comparison Of The Law Of Police Interrogation In Canada And The United States, Robert Harvie, Hamar Foster

Seattle University Law Review

This Article explores the Supreme Court of Canada's use of the Charter of Rights and Freedoms in limiting police interrogations and compares its case decisions with cases from the Supreme Court of the United States. Part II of this Article examines the purposes and policies underlying sections 10(b), 7, and 24(2) of the Charter. Part III then examines the application of sections 10(b) and 7 in situations where (1) suspects are interrogated by uniformed police officers or other persons known to be in authority, and (2) suspects are interrogated surreptitiously by persons not known to be in authority. In both …

Women In Law In Israel: A Study Of The Relationship Between Professional Integration And Feminism, Frances Raday

Georgia State University Law Review

No abstract provided.

Preventing Sexual Violence: Setting Principled Constitutional Boundaries On Sex Offender Commitments, Eric S. Janus

Indiana Law Journal

No abstract provided.

Noam Chomsky And Judicial Review, James G. Wilson

Cleveland State Law Review

This Commentary will consider four authorities who are hardly considered standard-bearers of the Left: Aristotle, Edmund Burke, James Madison, and Justice Oliver Wendell Holmes. Insights from Aristotle, Burke, Madison, Holmes, and Chomsky will be combined into following set of propositions: (1) the Supreme Court has a constitutional and historical obligation to resist tyranny and other forms of constitutional perversion and factionalism; (2) the Supreme Court has a unique duty and capacity to combat abuses of private power; (3) private corporations and the well-to-do have gained so much power that they have become a dangerous faction that is turning our government …

Term Limits On Original Intent--An Essay On Legal Debate And Historical Understanding, Polly J. Price

Faculty Articles

This Essay is divided into five Parts. Part I sets the stage for the historical debate by evaluating the text of the Qualifications Clauses as well as the limited evidence of what the Framers and the ratifiers thought about these provisions. Part II shows that many states, immediately after the federal Constitution was ratified, behaved as though the Qualifications Clauses did not prevent them from adding qualifications for congressional office-holding. Part III compares this early evidence of state behavior with a debate in Congress after the Civil War concerning the meaning of the Qualifications Clauses. Part IV returns to the …

The Supreme Court And Our Culture Of Irresponsibility, Mary J. Davis

Law Faculty Scholarly Articles

This article chronicles the Supreme Court's expansion of the “culture of irresponsibility,” where institutional defendants are freed from tort liability with no check on the abuse of such immunity. Professor Davis describes the Court's progression toward immunity in products liability decisions of the past decade including East River Steamship, Boyle, Cipollone, and Lohr. Noting the effect of the Court's decisions in promoting institutional irresponsibility, Professor Davis encourages the Court to use its “cultural influence” and reconsider its broad extension of immunity which has spread to situations and institutional defendants the Court never imagined.

State And Local Taxation Of Interstate And Foreign Commerce: The Second Best Solution, Kathryn L. Moore

Law Faculty Scholarly Articles

Our current system of state and local taxation of interstate and foreign commerce, simply put, is a mess. First, the mere number of jurisdictions that may impose taxes is seemingly limitless: each of the fifty states, plus the District of Columbia, may impose its own set of taxes. In addition, each state may authorize local government units within the state, such as counties, municipalities, townships, and special districts, to assess and collect taxes. For example, in 1994, well over 6,000 separate jurisdictions were authorized to impose sales taxes.

Second, the states may impose a wide variety of taxes and may …

Panacea Or Corporate Tool?: Debunking The Supreme Court's Preference For Binding Arbitration, Jean R. Sternlight

Scholarly Works

This article examines the increasing use of contracts of adhesion in which companies require consumers, employees, franchisees and other "little guys" to submit disputes with the company to binding arbitration. The article argues that the Supreme Court's current preference for such agreements is not statutorily well-founded. Specifically, it contends that the Federal Arbitration Act was not intended to make such agreements binding on unknowing consumers or employees. Turning next to policy analysis, the article asserts that the Supreme Court has erred in expressing a preference for binding arbitration in cases where such arbitration was not knowingly and voluntarily accepted by …

Review Of Winifred Fallers Sullivan, Paying The Words Extra: Religious Discourse In The Supreme Court Of The United States (1994), Leslie C. Griffin

Scholarly Works

No abstract provided.

Social Engineers With Jds, Gerard V. Bradley

Journal Articles

Stephen B. Presser: Recapturing the Constitution: Race, Religion, and Abortion Reconsidered. (Washington, DC: Regnery Publishing, 1994. Pp. xiv, 398. $24.95.)

With Recapturing the Constitution Steven Presser has launched a heat-seeking missile. It is, he confesses without contrition, "politically incorrect," "the same sort of exercise Allan Bloom was attempting in Closing of the American Mind" (pp. 12, 11). Presser aims to diagnose what ails our constitutional law as Bloom did our universities and culture. Presser argues that constitutional law is very sick indeed, and that it threatens to kill our body politic.

Text, Texts, Or Ad Hoc Determinations: Interpretation Of The Federal Rules Of Evidence, Randolph N. Jonakait

Articles & Chapters

No abstract provided.

The Rhetoric Of Disrespect: Uncovering The Faulty Premises Infecting Reproductive Rights, Elizabeth A. Riley

American University Journal of Gender, Social Policy & the Law

No abstract provided.

The Supreme Court In United States History: A New Appreciation, Michael Allan Wolf

Law Faculty Publications

From a perspective long removed in terms of time and experience, I can still recall my first encounter with Charles Warren's Pulitzer Prize winner that still serves as the standard institutional history of the Court. My undergraduate constitutional history professor and I were engaged in a lively discussion concerning the nature of sovereignty and states' rights in the wake of the Union victory in the Civil War.He pulled from an office shelf a well-worn volume from his set of Warren's time-honored narrative. ...