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Articles 391 - 420 of 773
Full-Text Articles in Constitutional Law
Content On The Fly: The Growing Need For Regulation Of Video Content Delivered Via Cellular Telephony, Jacob M. Chapman
Content On The Fly: The Growing Need For Regulation Of Video Content Delivered Via Cellular Telephony, Jacob M. Chapman
ExpressO
Technological advancements in the last twenty years have substantially altered the ways in which people work, communicate, and are entertained. Many of these advancements have occurred in areas generally thought to fall under the regulatory purview of the Federal Communications Commission (FCC). These advancements have included the personal computer, the internet, digital cable, direct broadcast satellites (DBS), and cellular phones. Of all these increasingly available and inexpensive technologies, perhaps the most ubiquitous is the cellular phone. Thus far, the FCC has struggled to apply its public interest mandate to the ever shifting sands of technological development with varying degrees of …
The "How" Of Enforcing The Fourteenth Amendment: How The Rehnquist Court's Treatment Of Implementation, Not Interpretation, Is The True Post-Boerne Failing, Rebecca L. Goldberg
The "How" Of Enforcing The Fourteenth Amendment: How The Rehnquist Court's Treatment Of Implementation, Not Interpretation, Is The True Post-Boerne Failing, Rebecca L. Goldberg
ExpressO
This article argues that the severe limits the Rehnquist Court imposed on Congress’ power to enforce the Fourteenth Amendment did not stem primarily from the Court’s treatment of Congress’ interpretive powers in City of Boerne v. Flores, as most commentators have assumed, but rather from the Court’s treatment of Congress’ assessments regarding implementation in the cases that followed Boerne (Kimel, Garrett, Hibbs, and Lane). The article provides a new framework for assessing Congress’ power to pass a law under Section 5 of the Fourteenth Amendment – a framework that adheres, in the main, to the Court’s 14§5 doctrine in Boerne …
An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger
An Expressive Jurisprudence Of The Establishment Clause, Ivan E. Bodensteiner, Alex Geisinger
Law Faculty Publications
No abstract provided.
Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff
Toward A Limited-Government Theory Of Extraterritorial Detention, Robert Knowles, Marc D. Falkoff
Law Faculty Publications
No abstract provided.
Mississippi River Stories: Lessons From A Century Of Unnatural Disasters, Sandi Zellmer, Christine Klein
Mississippi River Stories: Lessons From A Century Of Unnatural Disasters, Sandi Zellmer, Christine Klein
Nebraska College of Law: Faculty Publications
In the wake of Hurricane Katrina, the nation pondered how a relatively weak Category 3 storm could have destroyed an entire region. Few appreciated the extent to which a flawed federal water development policy transformed this apparently natural disaster into a “man-made” disaster; fewer still appreciated how the disaster was the predictable, and indeed predicted, sequel to almost a century of similar disasters. This article focuses upon three such stories: the Great Flood of 1927, the Midwest Flood of 1993, and Hurricanes Katrina and Rita of 2005. Taken together, the stories reveal important lessons, including the inadequacy of engineered flood …
Hamdan As An Assertion Of Judicial Power, Jana B. Singer
Hamdan As An Assertion Of Judicial Power, Jana B. Singer
Faculty Scholarship
In Hamdan v Rumsfeld, the Supreme Court rebuffed the Bush administration’s initial attempt to use Military Commissions created by Executive Order to try detainees held at Guantanamo Bay. The Court ruled that the President, acting alone, lacked the authority to employ the Commissions because their structure and procedure violated both the Uniform Code of Military Justice and the Geneva Conventions. Most academic commentators have viewed the Hamdan decision as primarily about the limits of executive power. On this view, the central constitutional problem in Hamdan was that the Executive had acted unilaterally in an area where the Constitution required the …
Gender And Justice: Parity And The United States Supreme Court, Paula A. Monopoli
Gender And Justice: Parity And The United States Supreme Court, Paula A. Monopoli
Faculty Scholarship
There is a deep concern among many American women that only one woman remains on the United States Supreme Court. When Justice Sandra Day O’Connor was sworn in on September 25, 1981, most people never imagined that twenty-five years later there would still be only one woman on the Court. It appears that it will be many more years before there is a critical mass of women sitting on the high court. Given its central role, the Court should better represent the gender balance in American society. In a number of other countries, voluntary or involuntary parity provisions have been …
Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber
Foreword: Making Sense Of An Eighteenth-Century Constitution In A Twenty-First-Century World, Mark A. Graber
Faculty Scholarship
The Maryland Constitutional Law Schmooze, "An Eighteenth-Century Constitution in a Twenty-First-Century World" explores the interpretive and political challenges inherent in recourse to an ancient text for resolving political questions. Although no Essay cites Quentin Skinner, the debates between participants in the Schmooze and this Symposium mirror the debates between Skinner and his critics. Some participants insist that crucial aspects of an eighteenth-century text remain vibrant at present, that contemporary political life would be improved by more careful study of the Constitution. Others blame crucial pathologies of American politics on a combination of too careful study of and too uncritical veneration …
Tied Up In Knotts? Gps Technology And The Fourth Amendment, Renée Mcdonald Hutchins
Tied Up In Knotts? Gps Technology And The Fourth Amendment, Renée Mcdonald Hutchins
Faculty Scholarship
Judicial and scholarly assessment of emerging technology seems poised to drive the Fourth Amendment down one of three paths. The first would simply relegate the amendment to a footnote in history books by limiting its reach to harms that the framers specifically envisioned. A modified version of this first approach would dispense with expansive constitutional notions of privacy and replace them with legislative fixes. A third path offers the amendment continued vitality but requires the U.S. Supreme Court to overhaul its Fourth Amendment analysis. Fortunately, a fourth alternative is available to cabin emerging technologies within the existing doctrinal framework. Analysis …
What Is A Twentieth-Century Constitution?, Peter E. Quint
What Is A Twentieth-Century Constitution?, Peter E. Quint
Faculty Scholarship
At present, almost all of the constitutions in the world are twentieth-century constitutions; indeed, most of them were not adopted until the second half of the twentieth century. Accordingly, the eighteenth-century Constitution of the United States -- which includes the original constitution of 1787-89; the first ten amendments, adopted in 1791; and the Eleventh Amendment, adopted in 1798 -- antedates most other constitutions of the world by at least 150 years. Using the eighteenth-century Constitution of the United States as a form of base-line (a method that may be parochial, but one that I think also has a lot to …
"No Better Than They Deserve:" Dred Scott And Constitutional Democracy, Mark A. Graber
"No Better Than They Deserve:" Dred Scott And Constitutional Democracy, Mark A. Graber
Faculty Scholarship
No abstract provided.
Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David C. Gray
Why Justice Scalia Should Be A Constitutional Comparativist ... Sometimes, David C. Gray
Faculty Scholarship
The burgeoning literature on transjudicialism and constitutional comparativism generally reaffirms the familiar lines of contest between textualists and those more inclined to read the Constitution as a living document. As a consequence, it tends to be politicized, if not polemic. This article begins to shift the debate toward a more rigorous focus on first principles. In particular, it argues that full faith to the basic commitments of originalism, as advanced in Justice Scalia's writings, opinions, and speeches, requires domestic courts to consult contemporary foreign sources when interpreting universalist language found in the Constitution. While the article does not propose a …
Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber
Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber
Faculty Scholarship
“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally …
False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber
False Modesty: Felix Frankfurter And The Tradition Of Judicial Restraint, Mark A. Graber
Faculty Scholarship
Professor Jeffrey Rosen is the leading champion of judicial modesty among legal academics and public philosophers. Throughout his career, Professor Rosen has vigorously condemned justices “when they have tried to impose intensely contested visions of the Constitution on a divided nation.” This commentary on his Foulston lecture at Washburn Law School suggests that proponents of judicial restraint must avoid traps of false modesty which ensnared Justice Felix Frankfurter. The constitutional politics responsible for Poe v. Ullman and Barnette v. West Virginia State Board of Education challenge the too simple understanding of judicial unilateralism that Frankfurter advanced in his opinions in …
Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky
Aedpa's Wrecks: Comity, Finality, And Federalism, Lee B. Kovarsky
Faculty Scholarship
Over the last decade, federal courts have internalized the idea that interpretations of the Antiterrorism and Effective Death Penalty Act (AEDPA) should disfavor habeas relief. This Article explores the strange legislative history surrounding AEDPA's passage and the resulting problems in using 'comity, finality, and federalism' to express this interpretive mood. It demonstrates that such a simplistic reading of habeas reform is deeply misguided. Through the use of public choice and related models, the Article explores the roots of this interpretive problem. It ultimately rejects any attempt to characterize AEDPA by reference to legislative purpose.
The People Or The State?: Chisholm V. Georgia And Popular Sovereignty, Randy E. Barnett
The People Or The State?: Chisholm V. Georgia And Popular Sovereignty, Randy E. Barnett
Georgetown Law Faculty Lectures and Appearances
Chisholm v. Georgia was the first great constitutional case decided by the Supreme Court. In Chisholm, the Court addressed the fundamental question: Who is Sovereign? The People or the State? It adopted an individual concept of popular sovereignty rather than the modern view that limits popular sovereignty to collective or democratic self-government. It denied that the State of Georgia was a sovereign entitled, like the King of England, to assert immunity from a lawsuit brought by a private citizen. Despite all this, Chisholm is not among the canon of cases that all law students are taught. Why not? In this …
Exercises In The Regulation Of Hate Speech, Rodney A. Smolla
Exercises In The Regulation Of Hate Speech, Rodney A. Smolla
Scholarly Articles
Not available.
Protocol No. 14 To The European Convention For The Protection Of Human Rights And Fundamental Freedoms: Toward A More Effective Control Mechanism?, Patricia Egli
Florida State University Journal of Transnational Law & Policy
No abstract provided.
Are Public Facilities Different From Private Ones?: Adopting A New Standard Of Review For The Dormant Commerce Clause, Bradford Mank
Are Public Facilities Different From Private Ones?: Adopting A New Standard Of Review For The Dormant Commerce Clause, Bradford Mank
Faculty Articles and Other Publications
On September 26, 2006, the Supreme Court granted certiorari in United Haulers Association Inc. v. Oneida-Herkimer Solid Waste Management Authority to decide the important issue of whether local governments may require that all waste in their jurisdiction be sent to a publicly-owned waste facility and thereby discriminate equally against both local and out-of-state private firms. The dormant Commerce Clause doctrine (DCCD) grants federal courts authority to invalidate state/local laws that discriminate against foreign goods/firms. The Court has adopted an overly broad per se test that invalidates any local law that theoretically discriminates against foreign firms, even if there is no …
Eminent Domain: A Legal And Economic Critique, Nadia E. Nedzel, Walter Block
Eminent Domain: A Legal And Economic Critique, Nadia E. Nedzel, Walter Block
University of Maryland Law Journal of Race, Religion, Gender and Class
No abstract provided.
The Foreign Affairs Power: Does The Constitution Matter?, D. A. Jeremy Telman
The Foreign Affairs Power: Does The Constitution Matter?, D. A. Jeremy Telman
Law Faculty Publications
No abstract provided.
The Fourteenth Amendment, Same-Sex Unions, And The Supreme Court, Michael J. Perry
The Fourteenth Amendment, Same-Sex Unions, And The Supreme Court, Michael J. Perry
Loyola University Chicago Law Journal
No abstract provided.
Lessons From The Bill Of Rights About Constitutional Protection For Marriage, Lynn D. Wardle
Lessons From The Bill Of Rights About Constitutional Protection For Marriage, Lynn D. Wardle
Loyola University Chicago Law Journal
No abstract provided.
Presidential Signing Statements And Congressional Oversight, A. Christopher Bryant
Presidential Signing Statements And Congressional Oversight, A. Christopher Bryant
Faculty Articles and Other Publications
In response to highly controversial statements issued by President George W. Bush upon signing various bills into law, an American Bar Association Task Force and Senator Arlen Specter both recently called for the creation of a cause of action to obtain a federal judicial declaration concerning the legal validity of future presidential signing statements. This essay argues that such legislation would be ill-advised and counterproductive. It would exacerbate existing underlying institutional infirmities. More fundamentally, the inclination to facilitate immediate resort to the judiciary for resolution of a dispute between the political branches about the President's constitutional obligations is premised on …
The Third Death Of Federalism, A. Christopher Bryant
The Third Death Of Federalism, A. Christopher Bryant
Faculty Articles and Other Publications
Federal drug laws proved a stumbling block to the Rehnquist Court's attempted federalism revival. In its final year, the Court's fragile federalism coalition splintered in a pair of cases arising under the Controlled Substances Act ("CSA"). Missing from the emerging legal literature concerning those two decisions is any substantive discussion of the Supreme Court's much earlier, ill-fated efforts to preserve both judicial enforcement of the enumerated powers doctrine and federal narcotics laws. This article fills that gap.
Ninety-odd years ago the Court arrived at the same jurisprudential juncture it now confronts. In the early decades of the twentieth century, the …
The Foundations Of Section 1983 Jurisprudence: A Look From The Concept Of Law, Timothy I. Oppelt
The Foundations Of Section 1983 Jurisprudence: A Look From The Concept Of Law, Timothy I. Oppelt
Florida A & M University Law Review
This article uses the theories of H.L.A. Hart to provide an interpretive framework for a vital civil rights statute, 42 U.S.C. Sec. 1983. Any interpretation of Sec. 1983 requires some sense of the fundamental nature of law and the ability to identify legal rules. Specifically, this article examines the "under color of" language of Sec. 1983 and the statute's application to municipalities. It is possible that these areas remain partially in flux or undeveloped because the Court lacks an interpretation of the statute that accounts for how rules can confer power, create artificial persons, delegate the ability to act with …
Inferring Uniformity: Towards Deduction And Certainty In The Miranda Context, Daniel J. Croxall
Inferring Uniformity: Towards Deduction And Certainty In The Miranda Context, Daniel J. Croxall
McGeorge Law Review
No abstract provided.
From Cities To Schoolyards: The Implications Of An Individual Right To Bear Arms On The Constitutionality Of Gun-Free Zones, Cameron Desmond
From Cities To Schoolyards: The Implications Of An Individual Right To Bear Arms On The Constitutionality Of Gun-Free Zones, Cameron Desmond
McGeorge Law Review
No abstract provided.
Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow
Marbury In Mexico: Judicial Review’S Precocious Southern Migration, M C. Mirow
Faculty Publications
In attempting to construct United States-style judicial review for the Mexican Supreme Court in the 1880s, Ignacio Vallarta, president of the court, read Marbury in a way that preceded this use of the case in the United States. Using this surprising fact as a central example, this article makes several important contributions to the field of comparative constitutional law. The work demonstrates that through constitutional migration, novel readings of constitutional sources can arise in foreign fora. In an era when the United States Supreme Court may be accused of parochialism in its constitutional analysis, the article addresses the current controversy …
Youngstown, Hamdan, And “Inherent” Emergency Presidential Policymaking Powers, Gordon G. Young
Youngstown, Hamdan, And “Inherent” Emergency Presidential Policymaking Powers, Gordon G. Young
Maryland Law Review
No abstract provided.