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Articles 1351 - 1380 of 2015
Full-Text Articles in Constitutional Law
"There Is Only One Equal Protection Clause": An Appreciation Of Justice Stevens's Equal Protection Jurisprudence, James E. Fleming
"There Is Only One Equal Protection Clause": An Appreciation Of Justice Stevens's Equal Protection Jurisprudence, James E. Fleming
Faculty Scholarship
"There is only one Equal Protection Clause. It requires every State to govern impartially. It does not direct the courts to apply one standard of review in some cases and a different standard in other cases."1 These words open Justice John Paul Stevens's famous concurring opinion in Craig v. Boren.2 That was the first case in which the U.S. Supreme Court applied "intermediate" scrutiny to gender-based classifications and thus carved out a third tier of equal protection analysis between strict scrutiny and deferential rational basis scrutiny. Craig was decided in 1976, at the beginning of Justice Stevens's long and distinguished …
The Constitutionality Of Best Interests Parentage, David D. Meyer
The Constitutionality Of Best Interests Parentage, David D. Meyer
Faculty Scholarship
No abstract provided.
The Constitutionality Of Best Interests Parentage, David D. Meyer
The Constitutionality Of Best Interests Parentage, David D. Meyer
Faculty Scholarship
No abstract provided.
From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber
From The Countermajoritarian Difficulty To Juristocracy And The Political Construction Of Judicial Power, Mark A. Graber
Faculty Scholarship
No abstract provided.
A Prayer For Constitutional Comparativism In Eighth Amendment Cases, David C. Gray
A Prayer For Constitutional Comparativism In Eighth Amendment Cases, David C. Gray
Faculty Scholarship
No abstract provided.
Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber
Enumeration And Other Constitutional Strategies For Protecting Rights: The View From 1787/1791, Mark A. Graber
Faculty Scholarship
This paper interprets the constitution of 1791 in light of the constitution of 1787. The persons responsible for the original constitution thought they had secured fundamental rights by a combination of representation, the separation of powers, and the extended republic. The Bill of Rights, in their view, was a minor supplement to the strategies previously employed for preventing abusive government practices. Proposed amendments were less a list of fundamental freedoms than an enumeration of those rights likely to appease moderate anti-Federalists. That many vaguely phrased rights lacked clear legal meaning was of little concern to their Federalist sponsors, who trusted …
Leading A Constitutional Court: Perspectives From The Federal Republic Of Germany, Peter E. Quint
Leading A Constitutional Court: Perspectives From The Federal Republic Of Germany, Peter E. Quint
Faculty Scholarship
This article, which was a contribution to a Symposium on the office of the Chief Justice of the United States, compares that office with the office of President of the Federal Constitutional Court of Germany. The article concludes that, while the American Chief Justice possesses more authority in most formal respects, the President of the German Court has on occasion exercised an informal public or private influence that goes well beyond anything of the sort that has been attempted (recently at least) by the American Chief Justice.
Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber
Does It Really Matter? Conservative Courts In A Conservative Era, Mark A. Graber
Faculty Scholarship
This essay explores the likelihood that conservative federal courts in the near future will be agents of conservative social change. In particular, the paper assesses whether conservative justices on some issues will support more conservative policies than conservative elected officials are presently willing to enact and whether such judicial decisions will influence public policy. My primary conclusion is that, as long as conservatives remain politically ascendant in the elected branches of government, the Roberts Court is likely to influence American politics at the margins. The new conservative judicial majority is likely to be more libertarian than conservative majorities in the …
"The Most Extraordinarily Powerful Court Of Law The World Has Ever Known"? - Judicial Review In The United States And Germany, Peter E. Quint
"The Most Extraordinarily Powerful Court Of Law The World Has Ever Known"? - Judicial Review In The United States And Germany, Peter E. Quint
Faculty Scholarship
No abstract provided.
Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber
Popular Constitutionalism, Judicial Supremacy, And The Complete Lincoln-Douglas Debates, Mark A. Graber
Faculty Scholarship
No abstract provided.
Gender And Constitutional Design, Paula A. Monopoli
Gender And Constitutional Design, Paula A. Monopoli
Faculty Scholarship
Does the allocation of power between the legislative and executive branches, and the way we define the scope of the executive affect whether women ascend to executive office? In this article, Professor Monopoli argues that the constitutional process of boundary-drawing between the legislative and executive branches of government has implications for how successful women will be in ascending to executive positions. She posits that the Hamiltonian vision of an expansive executive with plenary power is the model least likely to result in women’s ascending to executive office. The essay traces the philosophical heritage of Hamilton’s vision and outlines the empirical …
First Amendment Cases In The October 2004 Term, Joel Gora
First Amendment Cases In The October 2004 Term, Joel Gora
Faculty Scholarship
No abstract provided.
Foreign And International Law In Constitutional Gay Rights Litigation: What Claims, What Use And Whose Law?, William D. Araiza
Foreign And International Law In Constitutional Gay Rights Litigation: What Claims, What Use And Whose Law?, William D. Araiza
Faculty Scholarship
No abstract provided.
Private Business As Public Good: Hotel Development And Kelo, Joseph Blocher
Private Business As Public Good: Hotel Development And Kelo, Joseph Blocher
Faculty Scholarship
In the summer of 2004, New Haven Mayor John DeStefano, Jr. announced plans to demolish the all-but-derelict New Haven Coliseum and replace it with a publicly financed redevelopment that would include a 300-room hotel. Critics of the plan immediately objected that the hotel-even if it were completed-was a poor public investment, that there was no demand for such a hotel, and that the money could be better spent elsewhere. Some critics pointed to New Haven's own checkered history of major development projects, especially the failed downtown mall and the famously catastrophic Oak Street redevelopment. As of February 2006, the city …
Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz
Constitution-Making: A Process Filled With Constraint, Donald L. Horowitz
Faculty Scholarship
Constitutions are generally made by people with no previous experience in constitution making. The assistance they receive from outsiders is often less useful than it may appear. The most pertinent foreign experience may reside in distant countries, whose lessons are unknown or inaccessible. Moreover, although constitutions are intended to endure, they are often products of the particular crisis that forced their creation. Drafters are usually heavily affected by a desire to avoid repeating unpleasant historical experiences or to emulate what seem to be successful constitutional models. Theirs is a heavily constrained environment, made even more so by distrust and dissensus …
Universal Rights And Wrongs, Michael E. Tigar
Universal Rights And Wrongs, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler
Constitutional Fidelity, The Rule Of Recognition, And The Communitarian Turn In Contemporary Positivism, Matthew D. Adler
Faculty Scholarship
No abstract provided.
Checks And Balances: Congress And The Federal Court, Paul D. Carrington
Checks And Balances: Congress And The Federal Court, Paul D. Carrington
Faculty Scholarship
This essay was published as a chapter in Reforming the Supreme Court: Term Limits for Justices (Paul D. Carrington & Roger Cramton eds, Carolina Academic Press 2006). Its point is that Congress has long neglected its duty implicit in the constitutional doctrine of separation of powers to constrain the tendency of the Court, the academy and the legal profession to inflate the Court's status and power. The term "life tenure" is a significant source of a sense of royal status having not only the adverse cultural effects noted by Nagel, but also doleful effects on the administration and enforcement of …
Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer
Preclearance, Discrimination, And The Department Of Justice: The Case Of South Carolina, Guy-Uriel Charles, Luis Fuentes-Rohwer
Faculty Scholarship
No abstract provided.
Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin
Circling Around The Confrontation Clause: Redefined Reach But Not A Robust Right, Lisa Kern Griffin
Faculty Scholarship
The Supreme Court’s consolidated ruling in United States v. Davis and United States v. Hammon is a classic of the genre of consensus opinions to which the Roberts Court aspired in its first, transitional term. The opinion, authored by Justice Scalia, contains practical accommodations unusual in a decision by the Court’s fiercest proponent of first principles. The restraint that characterized the term is, of course, more about considerations of logistics (including the desire to avoid re-arguments after the mid-term replacement of Justice O’Connor) than about the alignment of logic. Because it reflects temporary institutional constraints rather than intellectual agreement, the …
Presidential Signing Statements And Executive Power, Curtis A. Bradley, Eric A. Posner
Presidential Signing Statements And Executive Power, Curtis A. Bradley, Eric A. Posner
Faculty Scholarship
A recent debate about the Bush administration's use of presidential signing statements has raised questions about their function, legality, and value. We argue that presidential signing statements are legal and that they provide a useful way for the president to disclose his views about the meaning and constitutionality of legislation. In addition, basic tenets of positive political theory suggest that signing statements do not undermine the separation of powers or the legislative process and that, under certain circumstances, they can provide relevant evidence of statutory meaning. Although President Bush has raised many more constitutional challenges within his signing statements than …
Military Commissions And Terrorist Enemy Combatants, Curtis A. Bradley
Military Commissions And Terrorist Enemy Combatants, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
Parsing The Commander In Chief Power: Three Distinctions, Curtis A. Bradley
Parsing The Commander In Chief Power: Three Distinctions, Curtis A. Bradley
Faculty Scholarship
No abstract provided.
The Assault On The Constitution: Executive Power And The War On Terrorism, Erwin Chemerinsky
The Assault On The Constitution: Executive Power And The War On Terrorism, Erwin Chemerinsky
Faculty Scholarship
The Bush administration has made unprecedented claims of unchecked executive power. The Constitution reflects a simple model that two branches of government should have to be involved in virtually all major government actions. The Bush administration, however, has claimed the ability to detain individuals, to engage in electronic eavesdropping, and to authorize torture even in violation of federal statutes. The solution must be for courts to reject these broad claims of presidential authority.
The Assumptions Of Federalism, Erwin Chemerinsky
The Assumptions Of Federalism, Erwin Chemerinsky
Faculty Scholarship
No abstract provided.
Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder
Loaded Dice And Other Problems: A Further Reflection On The Statutory Commander In Chief, Christopher H. Schroeder
Faculty Scholarship
No abstract provided.
Kelo’S Moral Failure, Laura S. Underkuffler
Grand Visions In An Age Of Conflict, H. Jefferson Powell
Grand Visions In An Age Of Conflict, H. Jefferson Powell
Faculty Scholarship
Last spring Professor Laurence H. Tribe commented that federal constitutional law is in a state of intellectual disarray: "[I]n area after area, we find ourselves at a fork in the road--a point at which it's fair to say things could go in any. of several directions" and we have "little common ground from which to build agreement." No doubt fortuitously, two of our most formidable constitutional scholars, Akhil R. Amar and Jed Rubenfeld, have recently published systematic studies that implicitly challenge Tribe's conclusion that "ours [is] a peculiarly bad time to be going out on a limb to propound a …
Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher
Selling The Name On The Schoolhouse Gate : The First Amendment And The Sale Of Public School Naming Rights, Joseph Blocher
Faculty Scholarship
No abstract provided.
The New Commerce Clause Doctrine In Game Theoretical Perspective, Maxwell L. Stearns
The New Commerce Clause Doctrine In Game Theoretical Perspective, Maxwell L. Stearns
Faculty Scholarship
The Roberts Court emerges at a critical juncture in the development of Commerce Clause doctrine. While the Commerce Clause doctrine implicates concerns for federalism and separation of powers, both of which are rooted in the earliest part of our constitutional history, the new Court presents an ideal opportunity to critically assess existing doctrines and to develop new analytical paradigms. The Rehnquist Court succeeded for the first time in sixty years in imposing substantive limits on the scope of this important source of Congressional power. That Court proved far less successful, however, in developing a coherent normative theory that reconciles the …