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Articles 1591 - 1620 of 1734
Full-Text Articles in Constitutional Law
Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne
Notes On A Bicentennial Constitution: Part I, Processes Of Change, William W. Van Alstyne
Faculty Scholarship
With the approach of the Bill of Rights bicentennial, this paper takes the cause for celebration as an equally important occasion for critique. This work argues that the most distinguishing aspects of our Constitution are not the Bill of Rights, federalism, and separation of powers, but rather the availability of judicial review, the political insulation of federal judges, and the limited mechanisms available for constitutional change.
U.S. Supreme Court: The 1983-84 Term, Paul C. Giannelli
U.S. Supreme Court: The 1983-84 Term, Paul C. Giannelli
Faculty Publications
No abstract provided.
Incest Statutes And The Fundamental Right Of Marriage: Is Oedipus Free To Marry?, Carolyn S. Bratt
Incest Statutes And The Fundamental Right Of Marriage: Is Oedipus Free To Marry?, Carolyn S. Bratt
Law Faculty Scholarly Articles
The U.S. Supreme Court has found that the right to marry is a constitutionally protected right. That right is restricted, however, by state incest statutes which impede marriage between adults by making some choices of a marriage partner illegal. The constitutional validity of modern state incest statutes is difficult to analyze because of shifting definitions, reflexive fears, ambivalent attitudes, and underlying facile generalizations.
The mere word "incest" triggers strong feelings of revulsion in most people. Therefore, any a priori labeling of a marriage as incestuous tends to preclude objective thought about the permissibility of the particular form of the marriage …
Berger V. The Supreme Court—The Implications Of His Exceptions-Clause Odyssey, Thomas B. Mcaffee
Berger V. The Supreme Court—The Implications Of His Exceptions-Clause Odyssey, Thomas B. Mcaffee
Scholarly Works
In his 1969 Congress v. The Supreme Court, Raoul Berger evaluated the potential claims to supremacy of Congress and the Supreme Court under the exceptions clause of article III and found in favor of the Supreme Court. Berger explicated a narrow construction of Congress’ express power to make exceptions to the Court’s appellate jurisdiction, holding that Congress’ claimed power to curb judicial excess was at odds with the design of the Constitution and without historical foundation. From 1969 to 1980, Berger reaffirmed his initial reading of the legislative history of article III no less than four times, once in …
Withdrawing Jurisdiction From Federal Courts, Charles E. Rice
Withdrawing Jurisdiction From Federal Courts, Charles E. Rice
Journal Articles
Courts today accept two incorrect assumptions when interpreting the federal constitution. First, they assume that the judiciary is the sole branch with the definitive power in interpreting the Constitution. Second, they assume that the Supreme Court's decisions on constitutional interpretation are the law of the land and equal to the language of the Constitution itself. This Article proposes that Congress ought to exercise its removal power of appellate jurisdiction from the federal courts in certain areas of law to limit the Supreme Court’s power in creating law that expands the Constitution, which is mistakenly viewed today with equal stature as …
Blackfeet Tribal Business Council V. East Glacier Water & Sewer Dist., No. 83ca174 (Blkft. Tr. Ct., Nov. 17, 1983) 11 Ilr 6021, Blackfeet Tribal Court
Blackfeet Tribal Business Council V. East Glacier Water & Sewer Dist., No. 83ca174 (Blkft. Tr. Ct., Nov. 17, 1983) 11 Ilr 6021, Blackfeet Tribal Court
Court Decisions
Plaintiff Blackfeet Tribal Business Council sought to enjoin the East Glacier Water & Sewer District, a public corporation organized pursuant to state law, composed of both tribal members and nonmembers, and located entirely within the Blackfeet Reservation, from shutting off water and sewer services to certain tribal members. Defendants moved for dismissal, arguing that the tribal court lacks jurisdiction because this case involves non-Indians. Upon reviewing provisions of the tribal constitution and noting the use of tribal forums by nonmembers in suits against members, the court finds that this case involves the health, safety and welfare of both Indian and …
Blackfeet Tribal Business Council V. East Glacier Water & Sewer Dist., No. 83ca174 (Blkft. Tr. Ct., Nov. 17, 1983) 11 Ilr 6021, Blackfeet Tribal Court
Blackfeet Tribal Business Council V. East Glacier Water & Sewer Dist., No. 83ca174 (Blkft. Tr. Ct., Nov. 17, 1983) 11 Ilr 6021, Blackfeet Tribal Court
Court Decisions
Plaintiff Blackfeet Tribal Business Council sought to enjoin the East Glacier Water & Sewer District, a public corporation organized pursuant to state law, composed of both tribal members and nonmembers, and located entirely within the Blackfeet Reservation, from shutting off water and sewer services to certain tribal members. Defendants moved for dismissal, arguing that the tribal court lacks jurisdiction because this case involves non-Indians. Upon reviewing provisions of the tribal constitution and noting the use of tribal forums by nonmembers in suits against members, the court finds that this case involves the health, safety and welfare of both Indian and …
From Representation By Population To The Pursuit Of Elegance, Peter J. T. O. Hearn
From Representation By Population To The Pursuit Of Elegance, Peter J. T. O. Hearn
Dalhousie Law Journal
Will the Canadian people be content with the present format of our recently won constitution? I do not think so. The obstacles to any further changes are indeed formidable, but they were equally formidable in the cases of the changes that have been achieved. In those cases, a popular will was at work which was spurred by the energy of a near-coalition of aggrieved groups, but which gently forced these energies into the formation of a more moderate working consensus. It is true that the consensus is a crippled one, especially concerning Quebec, and several problems will have to be …
Empty History, Erwin Chermerinsky
Empty History, Erwin Chermerinsky
Michigan Law Review
A Review of Politics and the Constitution in the History of the United States, Volume 3: The Political Background of the Federal Convention by William Winslow Crosskey and William Jeffrey, Jr.
Equity And The Constitution, Michigan Law Review
Equity And The Constitution, Michigan Law Review
Michigan Law Review
A Review of Equity and the Constitution by Gary L. McDowell
Berger's Defense Of The Death Penalty: How Not To Read The Constitution, Hugo Adam Bedau
Berger's Defense Of The Death Penalty: How Not To Read The Constitution, Hugo Adam Bedau
Michigan Law Review
A Review of Death Penalties: The Supreme Court's Obstacle Course by Raoul Berger
The Death Penalty In America, Michigan Law Review
The Death Penalty In America, Michigan Law Review
Michigan Law Review
A Review of The Death Penalty in America (Third Edition) by Hugo Adam Bedau
U.S. Supreme Court: 1982-83 Term: Part I, Paul C. Giannelli
U.S. Supreme Court: 1982-83 Term: Part I, Paul C. Giannelli
Faculty Publications
No abstract provided.
U.S. States Supreme Court: 1982-83 Term: Partii, Paul C. Giannelli
U.S. States Supreme Court: 1982-83 Term: Partii, Paul C. Giannelli
Faculty Publications
No abstract provided.
Book Notes, Roger C. Cramton, Barbara Marshment
Book Notes, Roger C. Cramton, Barbara Marshment
Journal of Legal Education
No abstract provided.
The Consultation Clause Of The 1973 War Powers Resolution, Laurence D. Pierce
The Consultation Clause Of The 1973 War Powers Resolution, Laurence D. Pierce
Antioch Law Journal
In 1973, Congress enacted the War Powers Resolution.' The purpose of the Resolution was "to fulfill the intent of the framers of the Constitution of the United States and insure that the collective judgment of both the Congress and the President will apply to the introduction of United States Armed Forces into hostilities, or into situations where imminent involvement in hostilities is clearly indicated by the circumstances .... 2 Part I of this comment examines the legislative evolution of the consultation clause to ascertain the intent of those congressional members who drafted and ratified the War Powers Resolution. Part II …
Constitutional Interpretation, Terrance Sandalow
Constitutional Interpretation, Terrance Sandalow
Articles
"[We] must never forget," Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, "that it is a constitution we are expounding."' Marshall meant that the Constitution should be read as a document "intended to endure for ages.to come, and, consequently, to be adapted to the various crises of human affairs."'2 But he meant also that the construction placed upon the document must have regard for its "great outlines" and "important objects."'3 Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a …
After "Life For Erie--A Reply, Peter Westen
After "Life For Erie--A Reply, Peter Westen
Michigan Law Review
Erie, having "preoccupied the intellectually dominant group of academic lawyers rising to maturity during the 1940's and 1950's," is reported to be losing its "symbolic centrality" for the newest generation of legal scholars. Professor Redish's prompt and excited response to our essay proves one thing: there is at least one scholar in the country who, having come to legal maturity during the last decade, still remains capable of becoming impassioned about Erie RR v. Tompkins.
Continuing The Erie Debate: A Response To Westen And Lehman, Martin H. Redish
Continuing The Erie Debate: A Response To Westen And Lehman, Martin H. Redish
Michigan Law Review
Although the Supreme Court has not spoken in detail on the Erie doctrine since its much-discussed decision in Hanna v. Plumer in 1965, commentary on the doctrine in the literature has undergone something of a "boomlet" in the last several years. Much of it has been stimulated by the groundbreaking article by Professor John Hart Ely in 1974. The latest contribution to the area is the recent article by Professor Peter Westen and Mr. Jeffrey Lehman appearing earlier this year in this journal. Unfortunately, their article does little to advance analysis of the Erie question, and contains numerous fundamental misstatements …
The Role Of Ideas In Legal History, Jay M. Feinman
The Role Of Ideas In Legal History, Jay M. Feinman
Michigan Law Review
A review of Patterns of American Legal Thought by G. Edward White
Dia-Tribe, Mark V. Tushnet
Dia-Tribe, Mark V. Tushnet
Michigan Law Review
A review of American Constitutional Law by Laurence H. Tribe
Racial Preference And The Constitution: The Societal Interest In The Equal Participation Objective, Robert Allen Sedler
Racial Preference And The Constitution: The Societal Interest In The Equal Participation Objective, Robert Allen Sedler
Law Faculty Research Publications
No abstract provided.
Is There Life For Erie After The Death Of Diversity?, Peter Westen, Jeffrey S. Lehman
Is There Life For Erie After The Death Of Diversity?, Peter Westen, Jeffrey S. Lehman
Michigan Law Review
This Article is essentially an elaboration of these three themes. Section I sets forth the fundamental principles, or "axioms," that determine whether a particular federal rule is pertinent and valid. Once these axioms are understood, it should become apparent that Erie problems, if not easy, are not uniquely difficult either; instead, they are the kinds of "ordinary" problems that are commonplace in other areas of law. Section II applies these axioms to cases in diversity to determine the validity of various kinds of federal rules of decision. Section III examines the validity of federal rules of decision in federal question …
Exclusionary Land Use Controls And The Takings Issue, Robert R. Wright
Exclusionary Land Use Controls And The Takings Issue, Robert R. Wright
Law Faculty Scholarship
No abstract provided.
Federalism And Social Change, Terrance Sandalow
Federalism And Social Change, Terrance Sandalow
Articles
A familiar passage in Professors Hart and Wechsler's casebook likens the relationship between federal and state law to that which exists between statutes and the common law. The underlying idea is that federal law rests upon a substructure of state law. "It builds upon legal relationships established by the states, altering or supplanting them only so far as necessary for [its] special purpose."' A similar relationship exists between state and federal judicial systems. State courts are courts of general jurisdiction, assumed to have authority to adjudicate controversies unless Congress has displaced them by conferring exclusive jurisdiction on federal courts. Federal …
Judicial Competence And Fundamental Rights, Earl S. Maltz, Ira C. Lupu
Judicial Competence And Fundamental Rights, Earl S. Maltz, Ira C. Lupu
Michigan Law Review
In the April 1979 issue of the Michigan Law Review, Professor Ira Lupu added his valuable contribution to the continuing debate on the problem of defining the nature of fundamental rights under the Constitution. In many respects his article is a wholly admirable piece of scholarship, both well-researched and carefully reasoned. However, on one issue - the question of judicial competence to identify the values he defines as fundamental - Professor Lupu's discussion is seriously deficient. This letter will examine the problem of judicial competence and conclude that it is fatal to Professor Lupu's conception of the appropriate role …
Proposed Citizens Right To Standing Act-Finding The Keys To Unlock The Courthouse Doors, Harold W. Wood, Jr.
Proposed Citizens Right To Standing Act-Finding The Keys To Unlock The Courthouse Doors, Harold W. Wood, Jr.
Seattle University Law Review
Recent Supreme Court decisions severely restrict the right of citizens to litigate in federal courts. The Court's standing requirements not only limit the ability of citizens to successfully invoke federal court jurisdiction, but also confuse lower courts and litigants attempting to apply the requirements. Standing requirements have met with increasing criticism. And Congress is now considering legislative modification of standing doctrine. Unfortunately, the Court's employment of constitutional foundations in establishing current standing requirements imposes substantial roadblocks Congress must avoid to enact remedial standing legislation. This comment examines the constitutional and pragmatic difficulties of statutory modification of standing requirements and recommends …
The United States Supreme Court: The 1978-79 Term, Paul C. Giannelli
The United States Supreme Court: The 1978-79 Term, Paul C. Giannelli
Faculty Publications
No abstract provided.
Ideology And History, David F. Forte
Ideology And History, David F. Forte
Law Faculty Articles and Essays
I do not dispute the philosophical validity of the theory of natural rights. Indeed, I support much, if not most, of the principles embodied in that theory. What I wish to discuss is that to which Dr. Vieira claims to have limited his discussion, viz., the belief that history, specifically American constitutional history, provides a sufficient base to support a natural rights theory. His attempt to find historical support is an instructive example of how ideology can distort the data of history and cause it to be portrayed in a strange and unreal light. Beyond that, Vieira's historical method also …
Statement On Constitutional Conventions, Society Of American Law Teachers
Statement On Constitutional Conventions, Society Of American Law Teachers
Statements
In 1978, The Board of Governors of the Society of American Law Teachers issued a statement on the issue of calling for a constitutional convention to amend the Constitution.