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Articles 1441 - 1470 of 2417
Full-Text Articles in Constitutional Law
Foreword: Symposium Re-Examining First Principles: Deterrence And Corrective Justice In Constitutional Torts, Thomas A. Eaton
Foreword: Symposium Re-Examining First Principles: Deterrence And Corrective Justice In Constitutional Torts, Thomas A. Eaton
Scholarly Works
This Symposium provides a forum for a careful and thoughtful consideration of whether constitutional tort law can deter wrongdoing and is consistent with principles of corrective justice.
Section 1983, The First Amendment, And Public Employee Speech: Shaping The Right To Fit The Remedy (And Vice Versa), Michael Wells
Section 1983, The First Amendment, And Public Employee Speech: Shaping The Right To Fit The Remedy (And Vice Versa), Michael Wells
Scholarly Works
This Article is not about theories of free speech and how they bear on the public employment context, nor does it contribute to the academic debate over what the aims of public employee speech law ought to be. I take the Court at its word when it says that its aim is to give substantial weight to both the value of speech and the government's interest as an employer. Unlike Massaro and Ingber, I take it as a given that the government may insist on hierarchy and obedience to authority in the workplace. Unlike Rosenthal, I begin from the Court's …
In Defense Of Making Government Pay: The Deterrent Effect Of Constitutional Tort Remedies, Myriam E. Gilles
In Defense Of Making Government Pay: The Deterrent Effect Of Constitutional Tort Remedies, Myriam E. Gilles
Articles
Legal economists are concerned with setting optimal deterrence levels. Armed with information concerning the public and private costs and benefits of a particular harmful activity, the legal economist seeks to set a “price” for the activity which, to some socially optimal extent, minimizes external costs while retaining external benefits. If the economist's information is perfect, he can predict precisely how an economically rational actor will respond to a particular price and achieve optimal deterrence of activities whose costs outweigh their benefits.
Free? Exercise, Marci A. Hamilton
The Gfp (Green) Bunny: Reflections On The Intersection Of Art, Science And The First Amendment, Sheldon Nahmod
The Gfp (Green) Bunny: Reflections On The Intersection Of Art, Science And The First Amendment, Sheldon Nahmod
All Faculty Scholarship
No abstract provided.
Federal Preemption Of State Tort Claims, Marin Roger Scordato
Federal Preemption Of State Tort Claims, Marin Roger Scordato
Scholarly Articles
This article explores a continuing disagreement among Justices of the United States Supreme Court regarding the proper doctrinal framework for federal preemption jurisprudence. This important difference in views became apparent in the four federal preemption cases that the Supreme Court decided during its 1999-2000 term. The article describes this critical disagreement among the Justices, places it in the larger context of preemption doctrine, and then carefully analyzes a number of possible resolutions.
Federal preemption is an area of enormous practical and theoretical importance. It is a subject that has earned a regular place on the Supreme Court's docket for many …
The Commercial Activity Exception Under The Fsia, Personhood Under The Fifth Amendment And Jurisdiction Over Foreign States: A Partial Roadmap For The Supreme Court In The New Millennium, Stephen J. Leacock
Faculty Scholarship
No abstract provided.
The South Won't Rise Again But It's Time To Study The Defunct Confederacy's Constitution, Ralph Michael Stein
The South Won't Rise Again But It's Time To Study The Defunct Confederacy's Constitution, Ralph Michael Stein
Elisabeth Haub School of Law Faculty Publications
The premise of this essay is not to espouse that the Southern ideological and constitutional theorists were correct. I propose, however, that an understanding of the historical basis of constitutional law, and a recognition of evolving doctrinal issues of Federalism, will enhance law school curriculum. Presentation of these topics dictates the introduction of the Confederate Constitution into the curriculum of required courses and electives. This effort, I propose, would be a prudent step, to be amply repaid in terms of higher understanding and scholarly benefit.
The Correction Of Wrongful Convictions: A Comparative Perspective, Lissa Griffin
The Correction Of Wrongful Convictions: A Comparative Perspective, Lissa Griffin
Elisabeth Haub School of Law Faculty Publications
This Article analyzes the different modes in which two facially similar adversarial systems remedy wrongful convictions. Part I briefly examines the origins of wrongful convictions in both England and the United States. Part II describes the appellate processes in the two countries for correcting wrongful convictions. Part III addresses the processes for correcting wrongful convictions after the appellate processes have been completed. Part IV critiques the English process and examines whether aspects of that process may be carried over to the United States.
Constitutional Law: State Campaign Contribution Limits: Nixon V. Shrink Missouri Government Pac: An Abridgment Of Freedom In The Name Of Democracy, Richard J. Baker
Constitutional Law: State Campaign Contribution Limits: Nixon V. Shrink Missouri Government Pac: An Abridgment Of Freedom In The Name Of Democracy, Richard J. Baker
Oklahoma Law Review
No abstract provided.
The Supreme Court 2000 Term--Leading Cases, Good News Club V. Milford Central School, 121 S. Ct. 2093 (2001), Emily Gold Waldman
The Supreme Court 2000 Term--Leading Cases, Good News Club V. Milford Central School, 121 S. Ct. 2093 (2001), Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
After the Supreme Court held in Widmar v. Vincent that state universities could not constitutionally deny religious groups access to facilities generally available to student groups, a number of school districts authored access policies that were designed to create “limited public forums.” These policies delineated the categories of activities for which school property could be used, and indicated that religious activities were not among them. In Lamb's Chapel v. Center Moriches Union Free School District, however, the Supreme Court struck a blow to the notion that school districts could employ the limited public forum approach to exclude religious activities from …
The 2000-2001 Supreme Court Term: Section 1983 Cases, Martin A. Schwartz
The 2000-2001 Supreme Court Term: Section 1983 Cases, Martin A. Schwartz
Scholarly Works
No abstract provided.
United States Supreme Court: 2001 Term, Paul C. Giannelli
United States Supreme Court: 2001 Term, Paul C. Giannelli
Faculty Publications
No abstract provided.
A Claim For Third Party Standing In America's Prisons, N. Jeremi Duru
A Claim For Third Party Standing In America's Prisons, N. Jeremi Duru
Scholarly Articles in Law Reviews & Journals
No abstract provided.
The American Prosecutor: Independence, Power, And The Threat Of Tyranny, Angela J. Davis
The American Prosecutor: Independence, Power, And The Threat Of Tyranny, Angela J. Davis
Scholarly Articles in Law Reviews & Journals
This Article compares the power, practices, and policies of the Independent Counsel with those of ordinary state and federal prosecutors and suggests that the purported distinctions turn out to be illusory. Part I charts the principal structural characteristics of the Independent Counsel and regular prosecutors, with particular focus on prosecutorial discretion and the charging power. This section notes the public outrage over former Independent Counsel Kenneth Starr and argues that the American prosecutor deserves similar scrutiny. Using illustrations from the author’s former experience as a public defender, this Part explains how regular prosecutors engage in the same acts of misconduct …
Takings Clause, Tara Leigh Grove
Why Federalism Must Be Enforced: A Response To Professor Kramer, Marci A. Hamilton
Why Federalism Must Be Enforced: A Response To Professor Kramer, Marci A. Hamilton
Articles
The United States Supreme Court has issued a series of opinions that turn on the Constitution's inherent principles of federalism, decisions that have alarmed many a legal scholar. Some scholars have attacked the Court for overstepping its bounds, and others have criticized the Court on the ground that the federal/state balance should be maintained through the political process rather than judicial review. The most recent advocate of this position, Professor Larry Kramer, recently argued in the Columbia Law Review that the political party structure ensures that state interests are taken into account at the federal level, and therefore the Supreme …
The Supreme Court In Real Time: Haste, Waste, And Bush V. Gore, Michael Herz
The Supreme Court In Real Time: Haste, Waste, And Bush V. Gore, Michael Herz
Articles
No abstract provided.
Lochner, Liquor, And Longshoremen: A Puzzle In Progressive Era Federalism, Barry Cushman
Lochner, Liquor, And Longshoremen: A Puzzle In Progressive Era Federalism, Barry Cushman
Journal Articles
In 1890, the Supreme Court shocked and thrilled the civilized world with the announcement that dry states could not prohibit the sale of liquor shipped in from outside the state. So long as the out-of-state goods remained in their "original packages," the Court held they retained their character as interstate commerce subject only to federal regulation. The consequences for the cause of local sobriety were, predictably, catastrophic. The proliferation in temperance territory of "original package saloons," at which one could purchase liquor free from the superintendence of local liquor authorities, was appalling to dry eyes. Members of Congress immediately proposed …
The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian
The World Trade Constitution, John O. Mcginnis, Mark L. Movsesian
Articles
Conventional wisdom holds that the World Trade Organization (WTO) necessarily poses a threat to sovereignty and representative government within its member nations. Professors McGinnis and Movsesian refute this view. They argue that the WTO can be understood as a constitutive structure that, by reducing the power of protectionist interest groups, can simultaneously promote international trade and domestic democracy. Indeed, in promoting both free trade and accountable government, the WTO reflects many of the insights that inform our own Madisonian Constitution. Professors McGinnis and Movsesian reject recent proposals to grant the WTO regulatory authority, endorsing instead the WTO's limited adjudicative power …
Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim A. Rossi
Does The Solicitor General Advantage Thwart The Rule Of Law In The Administrative State?, Jim A. Rossi
Vanderbilt Law School Faculty Publications
Linda Cohen and Matthew Spitzer's study, "The Government Litigant Advantage," sheds important light on how the Solicitor General's litigation behavior may impact the Supreme Court's decision making agenda and outcomes for regulatory and administrative law cases. By emphasizing how the Solicitor General affects cases that the Supreme Court decides, Cohen and Spitzer's findings confirm that administrative law's emphasis on lower appellate court decisions is not misplaced. Some say that D.C. Circuit cases carry equal-if not more-precedential weight than Supreme Court decisions in resolving administrative law issues. Cohen and Spitzer use positive political theory to provide a novel explanation for some …
Public Service, Ethics, And Constitutional Practice, James E. Moliterno
Public Service, Ethics, And Constitutional Practice, James E. Moliterno
Faculty Publications
No abstract provided.
Burdening Constitutional Rights: The Supreme Court's License To Prosecutors, Bennett L. Gershman
Burdening Constitutional Rights: The Supreme Court's License To Prosecutors, Bennett L. Gershman
Elisabeth Haub School of Law Faculty Publications
The prosecutorial tactic of burdening a defendant’s exercise of constitutional rights has appeared in a variety of contexts. Prosecutors have asked juries to infer guilt based on a defendant’s decision not to testify, not to call witnesses, to remain silent after being given Miranda warnings, to go to trial, to secure the assistance of counsel, to refuse to consent to a warrantless search, and to testify. In all of these instances, courts have found the prosecutor’s remarks to constitute misconduct.
On Casebooks And Canons Or Why Bob Jones University Will Never Be Part Of The Constitutional Law Canon, Neal Devins
On Casebooks And Canons Or Why Bob Jones University Will Never Be Part Of The Constitutional Law Canon, Neal Devins
Faculty Publications
No abstract provided.
Forensic Constitutional Interpretation, Brian F. Havel
Forensic Constitutional Interpretation, Brian F. Havel
William & Mary Law Review
No abstract provided.
Litigation In The United States And Mexico: A Comparative Overview, Robert M. Kossick, Jr.
Litigation In The United States And Mexico: A Comparative Overview, Robert M. Kossick, Jr.
University of Miami Inter-American Law Review
No abstract provided.
Declaring Unconstitutional A Constitutional Amendment: The Argentine Judiciary Forges Ahead, Ileana Gomez
Declaring Unconstitutional A Constitutional Amendment: The Argentine Judiciary Forges Ahead, Ileana Gomez
University of Miami Inter-American Law Review
No abstract provided.
Mt. Healthy And Causation In Fact: The Court Still Doesn't Get It!, Sheldon Nahmod
Mt. Healthy And Causation In Fact: The Court Still Doesn't Get It!, Sheldon Nahmod
All Faculty Scholarship
No abstract provided.
Naked Land Transfers And American Constitutional Development, Mark A. Graber
Naked Land Transfers And American Constitutional Development, Mark A. Graber
Faculty Scholarship
The constitutional prohibition on naked land transfers, laws granting to B property that belonged to A, played a far greater role in American constitutional development than is generally realized. The Marshall and Taney Courts heard numerous cases in which government officials were accused of expropriating private property, typically by legislative oversight rather than by deliberate intent. When resolving these cases, antebellum justices relied heavily on “certain great principles of justice” rather than on specific constitutional provisions. Supreme Court majorities on several occasions probably exercised the judicial power to declare federal laws unconstitutional. More frequently, Marshall and Taney Court decisions in …
Inverting The Viability Test For Abortion Law, Bruce Ching
Inverting The Viability Test For Abortion Law, Bruce Ching
Journal Articles
The abortion controversy is likely to become even more pressing with the development of technological advancements that enhance the chances for fetal survival of the abortion procedure. This essay explores the consequences of recognizing that keeping the fetus alive does not depend on keeping the fetus in utero.