Constitutional Law Commons^™

Congress And Taxes: A Separation Of Powers Analysis, Karla W. Simon

University of Miami Law Review

No abstract provided.

Validity Of New York State Ethics Commission Rule 932.2 Barring Public Officers From Holding Political Party Office, William Josephson, Beverly Jean Ross

Touro Law Review

No abstract provided.

Equal Protection

Touro Law Review

No abstract provided.

Atomic Bomb Testing And The Warner Amendment: A Violation Of The Separation Of Powers, William A. Fletcher

Washington Law Review

Hundreds of thousands of American soldiers and civilians were exposed to radiation during atmospheric tests of atomic bombs between 1946 and 1963. An undetermined number of them are now ill or dead from diseases traceable to that exposure. In the early 1980s, some of the soldiers and civilians, or their survivors, brought damage suits against the private contractors that had helped the United States government carry out the tests. In 1984, Congress interfered with the judicial process by passing the Warner Amendment, which retroactively provided sovereign immunity to the contractors and required dismissal of the suits. Professor Fletcher shows that …

Book Review, Richard B. Collins

Publications

No abstract provided.

Separation Of Powers Under The Texas Constitution, Harold H. Bruff

Publications

No abstract provided.

"Let Congress Do It": The Case For An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall

Michigan Law Review

The sporadic way that various members of the Supreme Court and the legal community treat the principle of stare decisis is increasingly striking. At times, the rule of stare decisis appears to be trotted out in defense of decisions that were actually reached on quite independent grounds. At other times, the dictates of the rule appear to be casually ignored when other factors call for the overruling of a precedent. It is tempting, therefore, to dismiss the rule of stare decisis as a mere rhetorical device, much like the question of whether a Supreme Court nominee's judicial philosophy is an …

A ‘Non-Power’ Looks At Separation Of Powers, Alan B. Morrison, Georgetown University Law Center

Philip A. Hart Memorial Lecture

On April 6, 1989, Dean, Alan B. Morrison of George Washington Law, delivered the Georgetown Law Center’s ninth Annual Philip A. Hart Memorial Lecture: "A ‘Non-Power’ Looks at Separation of Powers."

Dean Morrison is the Lerner Family Associate Dean for Public Interest & Public Service at GW Law. He is responsible for creating pro bono opportunities for students, bringing a wide range of public interest programs to the law school, encouraging students to seek positions in the non-profit and government sectors, and assisting students find ways to fund their legal education to make it possible for them to pursue careers …

The Yonkers Case: Separation Of Powers As A Yardstick For Determining Official Immunity, Amy Walsh

Fordham Urban Law Journal

The author examines the application of the official immunity doctrine to a situation where a federal district court issued contempt citations to local legislators in Yonkers who refused to pass legislation as required by a consent decree. The author argues that the function test for official immunity is by its very nature conclusory, and thus courts, in close cases, should use a separation of powers analysis to inform their application of the function test. Courts should deploy this separation of powers analysis by finding that where an official act was based on a mixture of powers, a rebuttable presumption should …

History And Executive Removal Power: Morrison V. Olson And Separation Of Powers, John L. Gedid

Campbell Law Review

Why have there been such wide divergences in the cases involving executive power to remove? This Article attempts a partial answer to that puzzle.

A Two-Tiered Theory Of Consolidation And Separation Of Powers, David S. Yassky

Elisabeth Haub School of Law Faculty Publications

This Note explores the jurisprudential implications of the New Deal watershed and elaborates a post-New Deal theory of allocation of governmental power. Part I begins with a discussion of the Federalist theory of separation of powers. For the Federalists, two conditions ensured an effective separation. First, governmental branches must be institutionally independent; each must be free from control by the others. Second, the branches must be functionally specialized; each must wield a distinct component of governmental power, so that the assent of all three is required for government action.

Until the New Deal, the Supreme Court incorporated this theory into …

Public Programs, Private Deciders: The Constitutionality Of Arbitration In Federal Programs, Harold H. Bruff

Publications

No abstract provided.

A Comment On The Rule Of Law Model Of Separation Of Powers, Robert F. Nagel

Publications

No abstract provided.

Independent Counsel And The Constitution, Harold H. Bruff

Publications

No abstract provided.

Stare Decisis And Constitutional Adjudication, Henry Paul Monaghan

Faculty Scholarship

Despite endless literature urging that constitutional adjudication be severed from explorations into the understandings at the creation of the Constitution, original understanding continues to play a prominent role in the Supreme Court's jurisprudence. For the Court, originalism seemingly provides a legitimate ground for decisionmaking; for the people, it provides assurances against judicial usurpation of power properly belonging to other branches of government, or retained by the people themselves.

But difficulties with originalism emerge once the existing constitutional order is actually examined. The Supreme Court's repeated invocations of the Framers' understanding notwithstanding, a significant portion of our constitutional order cannot reasonably …

Federalism, Separation Of Powers, And Individual Liberties, Dennis G. Lagory

Vanderbilt Law Review

In a world that the Framers hardly could have anticipated, the Constitution remains a singularly effective instrument for the pres- ervation of individual liberty. In its allocation of power between the states and the federal government, it provides Americans with multiple champions of their rights--the federal government, which protects a liberty that is constantly evolving to adapt traditional values to new realities, and the state governments, which protect the basic liberties to which mankind has always been entitled. In its allocation of power between the branches of the federal government, the Constitution provides us with a polity possessing powers adequate …

Do The United States Sentencing Guidelines Deprive Defendants Of Due Process?, Bradford Mank

Faculty Articles and Other Publications

It is difficult to determine whether due process requires individualized sentencing because sentencing goals and practices have varied greatly during the course of this nation's history. A court applying Judge Bork's original intent doctrine of constitutional interpretation would probably reach a result different from that reached by a court employing a more liberal view of due process protections.1o It is likely that liberals and conservatives on the current Supreme Court would disagree on whether the Guidelines violate due process.

This article argues that the Guidelines can be saved and can satisfy due process requirements if the Supreme Court interprets the …

The Removal Power And The Federal Deficit: Form, Substance, And Administrative Independence, Jonathan L. Entin

Kentucky Law Journal

No abstract provided.

Terrorism And The Constitution, Christopher L. Blakesley

Scholarly Works

How do terrorism and the Iran-Contra hearings relate to the Constitution? My thesis is that there is a tendency for the executive of this or any nation to eschew even constitutionally mandated avenues of problem solving considered to be cumbersome, inefficient, or inimical to the executive’s vision of the national interest in foreign affairs. There is also a tendency to consider one’s own conduct and the conduct of one’s allies and friends to be justified when it is directed at goals deemed by the executive branch to be good. Constitutional provisions based on the checks and balances and separation of …

On The Constitutional Status Of The Administrative Agencies, Harold H. Bruff

Publications

No abstract provided.

Formal And Functional Approaches To Separation-Of-Powers Questions – A Foolish Inconsistency?, Peter L. Strauss

Faculty Scholarship

Is it possible to give contemporary shape to the principles of constitutional structure we know as "separation of powers"? That question was sharply presented once again on the final day of the Supreme Court's most recent Term, when it decided two cases raising separation-of-powers issues. In Bowsher v. Synar, the subject of this symposium, the Court found constitutional fault in Congress's asserted expansion of its own powers at the expense of the President's article II authority. Commodity Future Trading Commission v. Schor, far less widely noted, upheld against constitutional challenge Congress's assignment to an administrative adjudicator of the …

The Rise And Fall Of The "Doctrine" Of Separation Of Powers, Philip B. Kurland

Michigan Law Review

As the Constitution of the United States nears its two hundredth anniversary, there is a frenzy of celebration. However awesome the accomplishment, I submit that it is no slander to recognize that the 1787 document was born of prudent compromise rather than principle, that it derived more from experience than from doctrine, and that it was received with an ambivalence in no small part attributable to its ambiguities. Indeed, its most stalwart supporters doubted its capacity for a long life. It should not be surprising, then, that even today there is disagreement over whether the Constitution of 1787 is now …

The Legislative Veto, The Constitution, And The Courts, Robert F. Nagel

Publications

No abstract provided.

Bowsher V. Synar, Lewis F. Powell Jr.

Supreme Court Case Files

No abstract provided.

Justice Sandra Day O'Connor: Trends Toward Judicial Restraint

Washington and Lee Law Review

No abstract provided.

The Separation Of Governmental Powers Under The Constitution Of Kentucky: A Legal And Historical Analysis Of L.R.C. V. Brown, Sheryl G. Snyder, Robert M. Ireland

Kentucky Law Journal

No abstract provided.

Bring Back The Legislative Veto: A Proposal For A Constitutional Amendment, Rodney A. Smolla

Scholarly Articles

None available.

Judicial Review And The President's Statutory Powers, Harold H. Bruff

Publications

No abstract provided.

Constitutionalism, Bureaucracy, And Corporatism, Lawrence G. Baxter

Faculty Scholarship

No abstract provided.

Constitutional Law - Gender-Based Discrimination - Separation Of Powers - The Total Exclusion Of Women From The Military Selective Service Act Does Not Violate Due Process, Elizabethanne M. Dilworth

Villanova Law Review (1956 - )

No abstract provided.