Courts Commons^™

Unhappy Anniversary - Thirty Years Since Miller V. California: The Legacy Of The Supreme Court's Misjudgement On Obscenity, Daniel Mark Cohen

St. Thomas Law Review

If it is true, as Aristotle suggested, that man is by nature a political animal, the current state of American society demonstrates, to any who might doubt the proposition, that man is equally, if not more so, a sexual one. With successive blessings by the Supreme Court, and so, with legal and social impunity, the companion American realms of commerce and entertainment are now thoroughly suffused with images of an openly sexual nature and purpose. These images, generated with conscious calculation and without discrimination as to the age or interest of potential recipients, are employed primarily for pecuniary purpose-that is, …

Behind The Words: Interpreting The Hobbs Act Requirement Of "Obtaining Of Property From Another", 36 J. Marshall L. Rev. 295 (2003), Kristal S. Stippich

UIC Law Review

No abstract provided.

The Twenty-Eighth Amendment: Why The Constitution Should Be Amended To Grant Congress The Power To Legislate In Furtherance Of The General Welfare, 36 J. Marshall L. Rev. 327 (2003), Casey L. Westover

UIC Law Review

No abstract provided.

Mandamus As A Weapon Of "Class Warfare" In Sixth Amendment Jurisprudence: A Case Comment On United States V. Santos, 36 J. Marshall L. Rev. 733 (2003), John F. Costello Jr.

UIC Law Review

No abstract provided.

Title Vii Retaliation, A Unique Breed, 36 J. Marshall L. Rev. 925 (2003), David Anthony Rutter

UIC Law Review

No abstract provided.

The First Amendment In The Seventh Circuit: 2002, 36 J. Marshall L. Rev. 807 (2003), Donald L. Beschle

UIC Law Review

No abstract provided.

Constitutional Existence Conditions And Judicial Review, Matthew D. Adler, Michael C. Dorf

Faculty Scholarship

Although critics of judicial review sometimes call for making the entire Constitution nonjusticiable, many familiar norms of constitutional law state what we call "existence conditions" that are necessarily enforced by judicial actors charged with the responsibility of applying, and thus as a preliminary step, identifying, propositions of sub-constitutional law such as statutes. Article I, Section 7, which sets forth the procedures by which a bill becomes a law, is an example: a putative law that did not go through the Article I, Section 7 process and does not satisfy an alternative test for legal validity (such as the treaty-making provision …

Constitutional Courts: Opportunities And Pitfalls, Donald L. Horowitz

Faculty Scholarship

This memorandum considers how to design constitutional courts to be most effective. With reference to examples such as Hungary, Italy, and Russia, the article examines dimensions including jurisdiction, appointment and tenure, and the effect of judicial declarations of unconstitutionality. The article also examines how a carefully designed and properly limited constitutional court can aid the creation of the rule of law, with specific reference to Afghanistan.

The Dormant Commerce Clause And The Hormones Problem, Donald H. Regan

Book Chapters

It is obvious that no anti-discrimination regime can stop at forbidding explicit discrimination of the relevant sort. If only explicit discrimination is forbidden, lawmakers who want to discriminate can hide their discriminatory intentions behind facially neutral classifications that are nonetheless chosen because they differentially burden the protected class. So, we must be prepared to invalidate some facially neutral laws that have "discriminatory effect" or, as American lawyers often call it, "disparate impact." On the other hand, we cannot possibly invalidate all laws which have a disparate impact on a protected class; many perfectly reasonable laws adopted for completely innocent purposes …

The Creativity Of The Common-Law Judge: The Jurisprudence Of William Mitchell, Charles J. Reid Jr.

William Mitchell Law Review

Mitchell's presence graced the Minnesota Supreme Court for nearly nineteen years, from 1881 to 1900. His output was prodigious. He produced nearly 1600 judicial opinions. It has been estimated “that excluding Sundays, and allowing a month in each year for vacation, Judge Mitchell wrote one opinion in every three days for nineteen years.” Indeed, “[i]n point of numbers, his opinions exceed those of any other justice of the Supreme Court of his state, or the nation.” It is one aspect, perhaps the central aspect, the unifying theme of this prolific body of work, that is the focus of this essay: …

Supreme Court Section 1983 Decisions: (October 2001 Term), Martin A. Schwartz

Scholarly Works

No abstract provided.

The Constitutionality Of An Executive Spending Plan, Paul E. Salamanca

Law Faculty Scholarly Articles

Operation of government in the absence of appropriations has become relatively common in the United States, particularly when projected expenses exceed projected revenue, making adoption of a budget a difficult task for the legislature. This Article focuses on the budget crisis in the Commonwealth of Kentucky from 2002 through 2003. In Part I, this Article recapitulates the history of the spending plan, including the action filed in Franklin Circuit Court to affirm its constitutionality. In Part II, this Article discusses certain theoretical, historical, and legal principles that inform analysis of the plan. In Part III, it considers certain deviations and …

Thermal Imaging And The Fourth Amendment: The Role Of The Katz Test In The Aftermath Of Kyllo V. United States, Gregory Gomez

NYLS Law Review

No abstract provided.

In Praise Of The Rule Of Law, The Role Of Judges, And The Right To Shop, Nadine Strossen

NYLS Law Review

No abstract provided.

Jon O. Newman And The Abortion Decisions: A Remarkable First Year, Andrew D. Hurwitz

NYLS Law Review

No abstract provided.

Jon Newman’S Theory Of Disparagement And The First Amendment In The Administrative State, Edward L. Rubin

NYLS Law Review

No abstract provided.

Remarks Of Seth P. Waxman At The Memorial Observance For Justice Byron R. White, United States Supreme Court, Seth P. Waxman

Georgetown Law Faculty Publications and Other Works

Members of the Court, members of the family, and friends of Justice White- Alone among today's speakers, I met Justice White only late in his life. Growing up in the law, my relationship with him was the one many kids today have with Michael Jordan - I wanted to be "like White" -like the kind of man he was. I still have that aspiration. Like Byron White, I served in the Department of Justice and was altered forever by that honorable institution. And - like Justice White, in my own lesser way, I strove within the walls of this institution …

Designing Judicial Review: A Comment On Schauer, Emily Sherwin

Cornell Law Faculty Publications

In his characteristically lucid paper, Neutrality and Judicial Review, Frederick Schauer revisits the meaning and plausibility of Herbert Wechsler’s argument for neutral principles in constitutional adjudication. Unlike some critics, Schauer takes the argument seriously, on its own terms, and does an excellent job of sorting through the different ideas that lie behind it. Schauer identifies four different versions of the argument for neutrality. At least three of these are drawn from Wechsler’s 1959 article. Schauer is particularly interested in a fourth version, which favors neutrality in the design and management of the institution of judicial review.

Stare Decisis And Due Process, Amy Coney Barrett

Journal Articles

In this Article, I argue that the preclusive effect of precedent raises due-process concerns, and, on occasion, slides into unconstitutionality. The Due Process Clause requires that a court give a person notice and an opportunity for a hearing before depriving her of life, liberty or property. Because of this requirement, courts have held in the context of issue preclusion that as a general rule, judicial determinations can bind only parties. The preclusion literature asserts that this parties only requirement does not apply to stare decisis because stare decisis, in contrast to issue preclusion, is a flexible doctrine. Yet stare decisis …

Quirin Revisited, Carl W. Tobias

Law Faculty Publications

Six decades ago, the U.S. Supreme Court decided Ex parte Quirin, in which the Justices determined that President Franklin Delano Roosevelt possessed the requisite constitutional authority to institute and use a military commission.

On November 13, 2001, President George W. Bush promulgated an Executive Order (Bush Order) that authorized the establishment and application of military commissions as well as purported to eliminate whatever jurisdiction federal courts might have by statute and to deny federal court access to individuals prosecuted or detained for terrorism. The Bush administration substantially premised that the Order and jurisdiction-stripping proviso on Ex parte Quirin. It has …

Dialectic And Revolution: Confronting Kelsen And Gadamer On Legal Interpretation, Hans Lindahl

Cardozo Law Review

This paper examines the general structure and conditions of legal interpretation that arise from confronting Gadamer's philosophical hermeneutics with a determinate conception of legal interpretation suggested by Kelsen's Pure Theory of Law. The Gadamerian question, "What defines legal interpretation as interpretation?", suggests that Kelsen's reference to legal norms as "schemes of interpretation" must be radicalized: a hermeneutic circularity or dialectic is at work in the law, such that the legal interpretation of reality also changes, to a lesser or greater extent, the principle of interpretation - the legal norm. The Kelsenian question, "What defines interpretation as legal interpretation?", suggests …

Thayerian Deference To Congress And Supreme Court Supermajority Rules: Lessons From The Past (Symposium: Congressional Power In The Shadow Of The Rehnquist Court: Strategies For The Future), Evan H. Caminker

Articles

Over the past eight years, the Supreme Court has been unusually aggressive in its exercise ofjudicial review over federal statutes challenged on federalism grounds. Eleven times the Court has invalidated provisions in federal statutes after determining that Congress exceeded the scope of its limited regulatory authority. In ten of the eleven cases, the vote was 5-4 with the identical five-Justice conservative majority (Chief Justice Rehnquist and Justices O'Connor, Scalia, Kennedy, and Thomas) controlling the decision.

Confrontation As A Hot Topic: The Virtues Of Going Back To Square One, Richard D. Friedman

Articles

I have been working so obsessively on the accused's right to confront the witnesses against him 1 that I am gratified that the organizers of this conference have designated confrontation as one of the "hot topics" of Evidence law. I am not so egotistical as to think that my work has made confrontation into a hot topic; I am just glad to know that I am working where a good deal of action is, and that other scholars recognize that confrontation is an important area in which dramatic changes may be occurring.

Crawford V. Washington, Richard D. Friedman

Articles

On June 9, by granting certiorari in Crawford v. Washington, 02-9410, the Supreme Court signaled its intention to enter once again into the realm of the Confrontation Clause, in which it has found itself deeply perplexed. This time there was a difference, however, because the grant indicated that the Court might be willing to rethink its jurisprudence in this area. Crawford, like Lee v. Illinois, 476 U.S. 530 (1986), and Lilly v. Virginia, 527 U.S. 116 (1999), presents a classic case of what might be called station-house testimony. Michael Crawford was accused of stabbing another man. His wife, Sylvia, was …

Constitutional Dignity And The Criminal Law, James E. Baker

Georgetown Law Faculty Publications and Other Works

Criminal law is important because it helps to define who we are as a constitutional democracy. There is much that distinguishes our form of government from others, but certainly much of that distinction is found in the Bill of Rights and in two simple words: due process. All of which help to affirm the value and sanctity of the individual in our society. Broadly then, criminal law helps to define who we are as a nation that values both order and liberty.

That is what many of the greatest judicial debates are about, like those involving Holmes, Hand, Jackson, and …

The War On Terrorism And The Constitution, Michael I. Meyerson

All Faculty Scholarship

Discussion of civil liberties during wartime often omit the fact that there can be no meaningful liberty at all if our homes and offices are bombed or our loved ones are killed or injured by acts of terror. The Government must be given the tools necessary to accomplish its vital mission. The first priority must be to win the war against terrorism. There are, however, other priorities. The United States, in its just battle for freedom, must ensure that freedom is preserved during that battle as well. Moreover, care must be taken so that an exaggerated cry of “emergency” is …

Towards Tribal Sovereignty And Judicial Efficiency: Ordering The Defenses Of Tribal Sovereign Immunity And Exhaustion Of Tribal Remedies, Kirsten Matoy Carlson

Michigan Law Review

In 1985, the Narragansett Indian Tribe ("Tribe") created the Narragansett Indian Wetuornuck Housing Authority ("Authority"). The Authority, which acts on the Tribe's behalf in its housing development and operations, entered into a contract with the Ninigret Development Corporation for the construction of a low-income housing development. After construction began, disputes developed over how to proceed with the construction. When conciliation efforts failed, the Authority cancelled the contract. The Narragansett Tribal Council, the governing body of the Tribe, followed the forum selection clause in the contract and notified the disputants that it would hold a hearing to resolve the dispute. Ninigret …

Medicaid And The Unconstitutional Dimensions Of Prior Authorization, Jagan Nicholas Ranjan

Michigan Law Review

The political outcry over prescription drug costs has been one of the most vociferous in recent memory. From tales depicting renegade seniors sneaking cheap prescriptions of Vioxx out of Tijuana across the border, to the promises of reduced prices made by front-runners during the 2000 Presidential election, the calls for lower drug prices have been forceful and demanding. This war for lower-priced pharmaceuticals fought by consumers, interest groups and politicians against the pharmaceutical industry itself has recently developed yet another front. The latest battle is over Medicaid. The new victims are the poor. Presently, federal statutory provisions in the Medicaid …

The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley

Scholarly Publications

No abstract provided.

Suspecting The States: Supreme Court Review Of State-Court State-Law Judgments, Laura S. Fitzgerald

Michigan Law Review

At the Supreme Court these days, it is unfashionable to second-guess states' fealty to federal law without real proof that they are ignoring it. As the Court declared in Alden v. Maine: "We are unwilling to assume the States will refuse to honor the Constitution or obey the binding laws of the United States. The good faith of the States thus provides an important assurance that 'this Constitution, and the Laws of the United States which shall be made in Pursuance thereof ... shall be the supreme Law of the Land.'" Accordingly, without proof that a state has "systematic[ally]" …