Courts Commons^™

Direct Democracy And Hastily Enacted Statutes, John Copeland Nagle

Journal Articles

Phil Frickey qualifies as the leading explorer of the borderline between statutory interpretation and constitutional law. Frickey explores ways to mediate the borderline between statutory interpretation and constitutional adjudication in the context of direct democracy. His is an enormously helpful attempt to reconcile the constitutional issues discussed by Julian Eule and the statutory interpretation issues discussed by Jane Schacter. I agree with many of Frickey's suggestions. Indeed, I will suggest some additional devices that can perform the same role. But I wonder whether Frickey has proved more than he set out to accomplish. The problems of direct democracy are special, …

What's Quality Got To Do With It?: Constitutional Theory, Politics, And Education Reform, Phil Weiser

Publications

No abstract provided.

The Hollow Hope: Can Courts Bring About Social Change?, Ian Holloway

Dalhousie Law Journal

Coming as it does in the midst of all the palaver over political correctness within the American academic community, The Hollow Hope is, if nothing else, an opportune articulation of iconoclasm in the debate over civil rights and constitutional law in the United States.' Professor Rosenberg's questioning of the "cult of the court" provides a welcome expression of healthy skepticism towards an institution which conventional myth reveres beyond its due.

Abrams V. United States: Remembering The Authors Of Both Opinions, James F. Fagan Jr.

Touro Law Review

No abstract provided.

"I Vote This Way Because I'M Wrong": The Supreme Court Justice As Epimenides, John M. Rogers

Law Faculty Scholarly Articles

Possibly the most unsettling phenomenon in the Supreme Court's 1988 term was Justice White's decision to vote contrary to his own exhaustively stated reasoning in Pennsylvania v. Union Gas Co. His unexplained decision to vote against the result of his own analysis lends support to those who argue that law, or at least constitutional law, is fundamentally indeterminate. Proponents of the indeterminacy argument sometimes base their position on the allegedly inescapable inconsistency of decisions made by a multi-member court. There is an answer to the inconsistency argument, but it founders if justices sometimes vote, without explanation, on the basis of …

Administrative Failure And Local Democracy: The Politics Of Deshaney, Jack M. Beermann

Faculty Scholarship

This Essay is an effort to construct a normative basis for a constitutional theory to resist the Supreme Court's recent decision in DeShaney v. Winnebago County Department of Social Services.¹ In DeShaney, the Court decided that a local social service worker's failure to prevent child abuse did not violate the due process clause of the fourteenth amendment even though the social worker "had reason to believe" the abuse was occurring. ² Chief Justice Rehnquist's opinion for the Court held that government inaction cannot violate due process unless the state has custody of the victim, ³ thus settling a controversial …

Using The Constitution: Separation Of Powers And Damages For Constitutional Violations, James A. Thomson

Touro Law Review

No abstract provided.

Equality Theory, Marital Rape, And The Promise Of The Fourteenth Amendment, Robin West

Georgetown Law Faculty Publications and Other Works

During the 1980s a handful of state judges either held or opined in dicta what must be incontrovertible to the feminist community, as well as to most progressive legal advocates and academics: the so-called marital rape exemption, whether statutory or common law in origin, constitutes a denial of a married woman's constitutional right to equal protection under the law. Indeed, a more obvious denial of equal protection is difficult to imagine: the marital rape exemption denies married women protection against violent crime solely on the basis of gender and marital status. What possibly could be less rational than a statute …

Court-Appointed Attorneys: Old Problems And New Solutions, H. Patrick Furman

Publications

No abstract provided.

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

Publications

No abstract provided.

Political Law, Legalistic Politics: A Recent History Of The Political Question Doctrine, Robert F. Nagel

Publications

No abstract provided.

The Right Of Revolution: The Development Of The People's Right To Reform Government, Phillip B. Scott

West Virginia Law Review

No abstract provided.

Dialectical Federalism: A Tribute To The West Virginia Supreme Court Of Appeals, Gene R. Nichol

West Virginia Law Review

Over the course of the past decade, the West Virginia Supreme Court of Appeals has become something of a controversial institution. Allegedly seeking to "mold state government in its own image,"' the court has issued decisions restructuring the state property tax assessment and appraisal scheme, overseeing the funding of public education, invalidating a gubernatorial veto, expanding tort claims beyond the umbrella of workers compensation, and ordering emergency care for the homeless. As a result, the high court has, perhaps deservedly, "attained a reputation for dramatic intervention in public policy disputes.” As individual exercises of judicial authority, the court's determinations have …

Procedural Due Process: The Original Understanding, Edward J. Eberle

Law Faculty Scholarship

No abstract provided.

Silence As A Trial Strategy After Strickland And Cronic: Ineffective Assistance Of Counsel?Nic : The Ineffective Assistance Of Counsel?, Jo Ellen Silberstein

Touro Law Review

No abstract provided.

The Modern Misunderstanding Of Original Intent, H. Jefferson Powell

Faculty Scholarship

No abstract provided.

Can Mental Health Professionals Predict Judicial Decisionmaking? Constitutional And Tort Liability Aspects Of The Right Of The Institutionalized Mentally Disabled To Refuse Treatment: On The Cutting Edge, Michael L. Perlin

Touro Law Review

No abstract provided.

Constitutional Remedies For Underinclusive Statutes: A Critical Appraisal Of Heckler V. Mathews, Bruce K. Miller

Faculty Scholarship

The power of the federal courts to remedy injuries caused by constitutional violations is a fundamental assumption of our constitutional scheme. The Supreme Court's equal protection decisions of the past generation illustrate the extent to which we take this power completely for granted. When confronted with a statute that denies a litigant's fifth or fourteenth amendment right to equal treatment, the Court has rarely limited itself to a simple declaration that the statute is unconstitutional. Such declarations, rather, have been routinely accompanied by awards of often substantial relief to the persons injured by the unconstitutional inequality. The author analyzes Heckler …

An Attack On Categorical Approaches To Freedom Of Speech, Pierre J. Schlag

Publications

No abstract provided.

California V. Grace Brethren Church, Lewis F. Powell Jr

Supreme Court Case Files

No abstract provided.

Disqalification Of Justices And The Constitutional Status Of The Judicial Budget: State Ex Rel. Bagley V. Blankenship, Kathleen Duffield

West Virginia Law Review

No abstract provided.

Separation Of Powers And The Scope Of Federal Equitable Remedies, Robert F. Nagel

Publications

No abstract provided.

Competency To Stand Trial In Federal Courts: Conceptual And Constitutional Problems, William T. Pizzi

Publications

No abstract provided.

Judicial Review: Its Influence Abroad, Donald P. Kommers

Journal Articles

The doctrine of judicial review, having been nourished in a legal culture and socio-political environment favorable to its growth, is America’s most distinctive contribution to constitutional government. Judicial review as historically practiced in the United States was duly recorded abroad, with varying degrees of influence and acceptability. During the nineteenth and early twentieth centuries, the influence of judicial review was most conspicuous in Latin America, where it was adopted as an articulate principle of numerous national constitutions, while most European nations consciously rejected it as incompatible with the prevailing theory of separation of powers. Germany, Austria, and Switzerland, although marginally …

Comparative Judicial Review And Constitutional Politics, Donald P. Kommers

Journal Articles

Donald P. Kommers reviews Richard D. Baker's Judicial Review in Mexico: A Study of the Amparo Suit (Austin and London: University of Texas Press, 1971); B. L. Strayer's Judicial Review of Legislation in Canada (Toronto: University of Toronto Press, 1968); Heinz Laufer's Verfassungsgerichtsbarkeit und politischer Prozess (Tiibingen: J.C.B. Mohr [Paul Siebeck ], 1968); Mauro Cappelletti's Judicial Review in the Contemporary World (Indianapolis: The Bobbs-Merrill Company, Inc., 1971); Edward McWhinney's Judicial Review (4th ed.) (Toronto: University of Toronto Press, 1969); Richard E. Johnston's The Effect of Judicial Review on Federal-State Relations in Australia, Canada, and the United States (Baton Rouge: Louisiana …

Legislative Purpose, Rationality, And Equal Protection, Robert F. Nagel

Publications

No abstract provided.

Judicial Control Over Passport Policy, Leon Hurwitz

Cleveland State Law Review

This paper is concerned with the judiciary's role in influencing both the procedure and substance of one particular aspect of foreign policy, namely, the passport policy of the State Department. That a decision regarding passports is a foreign policy decision has long been advanced by the President and Secretary of State. It is generally accepted that the issuance and regulation of passports is an integral part of the general conduct of American foreign relation

The French Conseil D' Etat: A Case Study In Boundary Maintenance, Robert Carp, Harrell Rodgers

Vanderbilt Journal of Transnational Law

Very little is known about the role that courts play in the total political system of a nation. In two recent works Professors Walter Murphy and Joseph Tanenhaus have centered attention on this question and have isolated some of the major functions of courts and developed several working hypotheses concerning these functions. They suggest that one of the major functions of constitutional courts consists of "defining the rules of the political game and determining the boundaries of authority between competing public officials as well as the boundaries between governmental authority and individual liberty." In approving or disapproving the acts of …

Constitutional Rights In Juvenile Court, Joseph L. Rubin

Cleveland State Law Review

On June 20, 1966, the United States Supreme Court noted that it had probable jurisdiction in the case of In Re Gault. Ten months and three weeks later, the Supreme Court reached a landmark decision on judicial handling of juvenile delinquency matters. On May 15, 1967, the court handed down a ruling that many of the constitutional procedural protections previously observed only in adult trials are also applicable to children in juvenile court proceedings. This decision portends a major change in the manner in which most of the nation's three thousand juvenile courts have been functioning. The significance of this …

Recent Cases, Law Review Staff

Vanderbilt Law Review

Constitutional Law--Due Process of Law--Constitutionality of the Federal Youth Corrections Act in Its Application to Youthful Criminal Offenders

================================

Constitutional Law--Legislative Power--Infringement of Constitutional Guaranties by Demands of Legislative Investigating Committees for the Production of Membership Lists

================================

Courts--Process--Immunity of Nonresident Defendants in Federal Criminal Actions from Service of State Civil Process

================================

Damages--Installment Verdict in Tort Action

================================

Domestic Relations--Separation--Suit by Mentally Incompetent Wife

================================

Interstate Commerce--Hobbs Act--"Robbery" Provision Construed as Requiring Proof of Common Law Elements of Offense

================================

Taxation--Income--Determination of "Useful Life" of a Business Asset for Purposes of Depreciation

=================================

Taxation--Income--Full Payment of Tax Deficiency as …