Constitutional Law Commons^™

Moses And Modernism, Neil H. Cogan

Michigan Law Review

A Review of The Bill of Rights and the States: The Colonial and Revolutionary Origins of American Liberties by Patrick T. Conley and John P. Kaminski and State Constitutional Law: Litigating Individual Rights, Claims and Defenses by Jennifer Friesen and Reference Guides to the State Constitutions of the United States

The Interpretable Constitution, Steven C. Coberly

Michigan Law Review

A Review of The Interpretable Constitution by William F. Harris II

Conference On The 1992 Cable Tv Act - 1994, Wendy J. Gordon

Scholarship Chronologically

The CITI conference organizers have asked me to address the constitutionality of sections 12 and 19 of the new Cable Television Act. Speaking quite generally, these provisions purport to promote competition in the distribution of programming by prohibiting certain exclusive licenses and by prohibiting certain behaviors that could lead to exclusive licenses.

Incorporating The Suspension Clause: Is There A Constitutional Right To Federal Habeas Corpus For State Prisoners?, Jordan Steiker

Michigan Law Review

In the early 1960s, the Supreme Court adopted generous standards governing federal habeas petitions by state prisoners. At that time, the Court suggested, rather surprisingly, that its solicitude toward such petitions might be constitutionally mandated by the Suspension Clause, the only provision in the Constitution that explicitly refers to the "Writ of Habeas Corpus." Now, thirty years later, the Court has essentially overruled those expansive rulings, and Congress has considered, though not yet enacted, further limitations on the availability of the writ. Despite these significant assaults on the habeas forum, the constitutional argument appears to have been entirely abandoned. The …

Legitimacy Of The Constitutional Judge And Theories Of Interpretation In The United States, William B. Fisch, Richard S. Kay

Faculty Publications

The Legitimacy of the Constitutional Judge and Theories of Interpretation in the United States The paper addresses the sources of legitimacy of a judge exercising the power to declare acts of government invalid on constitutional grounds, and their relationship to theories of interpretation of the constitutional texts.

With All Deliberate Speed? A Reply To Professor Sunstein, Marc A. Fajer

Articles

No abstract provided.

Machiavellian Jurisprudence: The United States Supreme Court's Doctrinal Approach To Political Speech Under The First Amendment, Garth Molander

Touro Law Review

No abstract provided.

Constitutional Implications Of Acquisition-Value Real Property Taxation: Assessing The Burdens On Travel And Commerce, Mary Lafrance

Scholarly Works

This article is the second in a two-part series addressing the constitutional implications of acquisition-value real property taxation. This Article addresses constitutional issues raised by systems of real property taxation that base a property owner's tax assessment not on the current value of the property but on its value on the date the taxpayer acquired it. The first Article in this series described the operation of acquisition-value systems of real property taxation such as those adopted by California in 1978 and Florida in 1992, and evaluated the equal protection challenges to the California system (“Proposition 13”) which culminated in the …

Constitutional Implications Of Acquisition-Value Real Property Taxation: The Elusive Rational Basis, Mary Lafrance

Scholarly Works

This article is the first in a two-part series addressing the constitutional implications of acquisition-value real property taxation. Acquisition-value real property taxation systems represent a departure from the traditional practice of taxing real property on its current fair market value. In contrast to traditional systems, which are still employed by the vast majority of states, under acquisition- value taxation a real estate owner's property tax liability is determined by the value of the property when the taxpayer acquired it. In periods of rising real estate prices, such a scheme compels later buyers to shoulder a higher annual tax liability than …

United States Supreme Court: 1993-94 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.

The Constitutional Law Of Abortion In Germany: Should Americans Pay Attention?, Donald P. Kommers

Journal Articles

What I plan to do here is to tell you the story of Germany's legal approach to abortion and offer some tentative conclusions about what we Americans might learn from the German experience. My story centers mainly on the constitutionality of efforts in Germany to remove legal restrictions on abortion. In the United States, the story has a different twist, for there it centers on the constitutionality of efforts to impose legal restrictions on abortion. Both stories are fascinating accounts of constitutional decisionmaking, revealing as much about the values of the two societies as about the role of judicial review …

The Rise And Rise Of The Administrative State, Gary S. Lawson

Faculty Scholarship

The post-New Deal administrative state is unconstitutional, and its validation by the legal system amounts to nothing less than a bloodless constitutional revolution. The original New Dealers were aware, at least to some degree, that their vision of the national government's proper role and structure could not be squared with the written Constitution: The Administrative Process, James Landis's classic exposition of the New Deal model of administration, fairly drips with contempt for the idea of a limited national government subject to a formal, tripartite separation of powers. Faced with a choice between the administrative state and the Constitution, the architects …

Three Mistakes About Interpretation, Paul Campos

Michigan Law Review

The single most important word in modem constitutional theory is "interpretation." The single most confusing word in modem constitutional theory is "interpretation." What accounts for this unhappy state of affairs?

I will try to show that Barry Friedman's assertions, as well as others that are but rephrasings of the same basic ideas, are not the common sense truths that so many constitutional theorists assume them to be, but are instead the products of an extraordinarily confused and ultimately incoherent set of assumptions regarding the interpretation of language.

The Constitution, The Legislature, And Unfair Surprise: Toward A Reliance-Based Approach To The Contract Clause, Robert A. Graham

Michigan Law Review

This Note argues that the Court should return to a reliance-based approach to Contract Clause challenges, fashioned loosely along the same lines as the HRID. Although it does not advocate that the Court revivify the rules created by the early decisions, the Note proposes that the Court look to the private parties' expectations and, more specifically, to the reasonableness of those expectations in deciding the clause's applicability to a particular case. Part I provides a brief history of the Contract Clause and its development. This Part follows the clause from the Constitutional Convention through the 1980s to illustrate the Court's …

Article Ii Revisionism, Cass R. Sunstein

Michigan Law Review

One of the most striking developments of the last decade has been the new use of Article II in public law adjudication. Article II is a prominent feature not only of cases involving the creation of federal institutions that are independent of the President, but also of new disputes involving reviewability, scope of review, and standing.

Professor Krent and Mr. Shenkman have performed a valuable service in spelling out the argument that Article II, rather than Article III, justifies constitutional limits on legislative grants of standing. Indeed, on several important matters, we are very much in agreement. In this brief …

The Advocacy Of "Constitutional" Conduct, Marshall C. Derks

Indiana Law Journal

No abstract provided.

The Social Origins Of Property, Joseph William Singer, Jack M. Beermann

Faculty Scholarship

The takings clause of the United States Constitution requires government to pay compensation when private property is taken for public use.' When government regulates, but does not physically seize, property, the Supreme Court of the United States has had trouble defining when individuals have been deprived of property rights so as to give them a right to compensation. The takings clause serves "to bar Government from forcing some people alone to bear public burdens that, in all fairness and justice, should be borne by the public as a whole."' To determine when a regulation amounts to a "taking" of property …

Of Citizen Suits And Citizen Sunstein, Harold J. Krent, Ethan G. Shenkman

Michigan Law Review

After briefly summarizing Lujan and addressing Sunstein's critique, we explore the concept of accountability underlying the creation of a single executive in Article II. We then apply our theory of the unitary executive to several examples of broad grants of statutory standing, concluding that Congress can confer standing on private citizens only if it specifically articulates and individuates the interests whose violation gives rise to a cognizable case. Although we agree with Sunstein's view that broad grants of statutory standing do not necessarily trench upon constitutional values, we ultimately side with Justice Scalia in concluding that universal citizen standing, as …

Revisiting Roe V. Wade: Substance And Process In The Abortion Debate, Margaret G. Farrell

Indiana Law Journal

No abstract provided.

The Political Process As Final Solution, Charles M. Freeland

Indiana Law Journal

No abstract provided.

The Role Of Religious Values In Judicial Decision Making, Scott C. Idleman

Indiana Law Journal

No abstract provided.

The Tribunal In Albania, John Paul Jones

Law Faculty Publications

Professor Jones explains and critiques "The Organization of Justice and the Constitutional Court," the1992 amendments to Albania's provisional constitution that established the nation's post-revolution judicial system.

Supreme Court's Tilt To The Property Right: Procedural Due Process Protections Of Liberty And Property Interests, Jack M. Beermann, Barbara A. Melamed, Hugh F. Hall

Faculty Scholarship

The Due Process Clauses of the Fifth and Fourteenth Amendments to the United States Constitution provide important protections against government oppression. They provide that government may not deprive any person of "life, liberty or property" without due process of law. In recent decisions, the Supreme Court has appeared willing to strengthen its protection of traditional property interests yet weaken its protection of liberty interests.

It has long been accepted, albeit with controversy, that due process has both procedural and substantive elements. This essay concerns the procedural elements. Procedural due process analysis asks two questions: first, whether there exists a liberty …

Legal Developments: Ethics In Government Federal Advisory Committees, Foreign Conflicts Of Interest, The Constitution, And Dr. Franklin's Snuff Box, Gerald S. Schatz

University of the District of Columbia Law Review

No abstract provided.

Legislative Process And Commercial Law: Lessons From The Copyright Act Of 1976 And The Uniform Commercial Code, Harold R. Weinberg, William J. Woodward Jr.

Law Faculty Scholarly Articles

Overlap and conflict are inevitable in any legal system in which a federal government and state governments both have authority to enact laws. In our federal system, the Constitution's Supremacy Clause identifies federal law as preeminent in case of conflict. When conflict develops and litigation is required to determine whether state or federal law controls the issue at hand, our system analyzes the problem using the term preemption as a basis for analysis.

This Article explores the federal legislative process that precedes judicial preemption decisions. By studying the legislative process for its sensitivity to preemption issues, possible ways to modify …

A Constitutional Conspiracy Unmasked: Why "No State" Does Not Mean "No State", Mark A. Graber

Faculty Scholarship

No abstract provided.

Right To Counsel

Touro Law Review

No abstract provided.

Right To Counsel

Touro Law Review

No abstract provided.

Search & Seizure

Touro Law Review

No abstract provided.

Search & Seizure

Touro Law Review

No abstract provided.