Jurisprudence Commons^™

Freedom Of Discrimination?:The Conflict Between Public Accommodations' Freedom Association And State Anti-Discrimination Laws, 37 J. Marshall L. Rev. 125 (2003), Gregory J. Wartman

UIC Law Review

No abstract provided.

Balancing As Art: Justice White And The Separation Of Powers, William J. Wagner

Scholarly Articles

In more than one key opinion, Justice Byron White cited Justice Robert H. Jackson's concept of the "art of governing" as the cornerstone of his own approach to separation-of-powers problems.' In Youngstown Sheet & Tube Co. v. Sawyer, Justice Jackson had written:

The actual art of governing under our Constitution does not and cannot conform to judicial definitions of the power of any of its branches based on isolated clauses or even single Articles torn from context. While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable …

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: …

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 …

Six Opinions By Mr. Justice Stevens: A New Methodology For Constitutional Cases?, Robert F. Nagel

Publications

No abstract provided.

Constitutional Legitimacy, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

The problem of constitutional legitimacy is to establish why anyone should obey the command of a constitutionally-valid law. A lawmaking system is legitimate if there is a prima facie duty to obey the laws it makes. Neither "consent of the governed" nor "benefits received" justifies obedience. Rather, a prima facie duty of obedience exists either (a) if there is actual unanimous consent to the jurisdiction of the lawmaker or, in the absence of consent, (b) f laws are made by procedures which assure that they are not unjust. In the absence of unanimous consent, a written constitution should be assessed …

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 …

Marbury V. Madison And Modern Judicial Review, Robert F. Nagel

Publications

This Article compares the realist critique of Marbury with several revisionist defenses of that decision. Realists claim to see Marbury as essentially political and thus as the fountainhead of modern judicial review. Revisionists claim to see the decision as legalistically justified and thus inconsistent with current practices. Close examination, however, indicates that, despite sharp rhetorical differences, these two accounts are largely complementary rather than inconsistent. Each envisions Marbury as embodying elements of both political realism and legal formalism. Once the false argument about whether Marbury was either political or legal is put aside, it is possible to trace the influence …

Justice White And Judicial Review, Philip J. Weiser

Publications

No abstract provided.

The Effect Of The Supreme Court's Eleventh Amendment Jurisprudence On Environmental Citizen Suits: Gotcha!, Hope M. Babcock

Georgetown Law Faculty Publications and Other Works

The current Supreme Court has substantially expanded the scope of protection from lawsuits accorded to states by the Eleventh Amendment and narrowed the exceptions to its application. As a result, many people are finding they are unable to vindicate federal rights in any court when the defendant is a state or a state agency. The most recent example of this is the Court's decision in South Carolina State Ports Authority v. Federal Maritime Commission, in which the Court extended the reach of the Eleventh Amendment to private administrative enforcement actions against states, thus forsaking completely any connection to the …

Alternative Forms Of Judicial Review, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

The invention in the late twentieth century of what I call weak-form systems of judicial review provides us with the chance to see in a new light some traditional debates within U.S. constitutional law and theory, which are predicated on the fact that the United States has strong-form judicial review. Strong- and weak-form systems operate on the level of constitutional design, in the sense that their characteristics are specified in constitutional documents or in deep-rooted constitutional traditions. After sketching the differences between strong- and weak-form systems, I turn to design features that operate at the next lower level. Here legislatures …

Constitutional Borrowing And Nonborrowing, Lee Epstein, Jack Knight

Faculty Scholarship

No abstract provided.

Threats, Free Speech, And The Jurisprudence Of The Federal Criminal Law, G. Robert Blakey, Brian J. Murray

BYU Law Review

No abstract provided.

The Virtue Of Vagueness In Takings Doctrine, Marc R. Poirier

Cardozo Law Review

In discussions of regulatory takings law, there appears to be an almost universal assumption that its vagueness is a bad thing, a mysterious dysfunction. This article argues that the vagueness in takings doctrine is quite functional and entirely appropriate. Since considerable vagueness turns out to be inevitable, this is just as well. Happily, over time, specific resource use conflicts and transitions sometimes do crystallize out into more predictable forms of law - new rules and customs about specific types of property. Within these specific and limited regimes, we can and should aspire to rules defining the circumstances under which the …

Expanded Rights Through State Law: The United States Supreme Court Shows State Courts The Way, Robert L. Brown

The Journal of Appellate Practice and Process

No abstract provided.

A Subversive Strand Of The Warren Court, Gary Peller

Washington and Lee Law Review

No abstract provided.

Causation, Constitutional Principles, And The Jurisprudential Legacy Of The Warren Court, Michelle Adams

Washington and Lee Law Review

No abstract provided.

Come Back To The Nickel And Five:* Tracing The Warren Court's Pursuit Of Equal Justice Under Law, Jim Chen

Washington and Lee Law Review

No abstract provided.

The Warren Court, Criminal Procedure Reform, And Retributive Punishment, Darryl K. Brown

Washington and Lee Law Review

No abstract provided.

Irreparability Resurrected?: Does A Recalibrated Irreparable Injury Rule Threaten The Warren Court's Establishment Clause Legacy?, Doug Rendleman

Washington and Lee Law Review

No abstract provided.

How The Supreme Court Delivers Fire And Ice To State Criminal Justice, Ronald F. Wright

Washington and Lee Law Review

No abstract provided.

Productive Silence On Carl Schmitt: Constrained Ignorance Or Concluded Reappraisal? A Reply To Detlev F. Vagts, Carl Schmitt In Context: Reflections On A Symposium, Emanuel Richter

Cardozo Law Review

No abstract provided.

United States V. Drayton: Supreme Court Upholds Standards For Police Conduct During Bus Searches, Andera K. Mitchell

American University Law Review

No abstract provided.

Marbury Ascendant: The Rehnquist Court And The Power To "Say What The Law Is", Timothy Zick

Washington and Lee Law Review

No abstract provided.

Unsheathing Alexander's Sword: Lapides V. Board Of Regents Of The University System Of Georgia, Eric S. Johnson

American University Law Review

No abstract provided.

The Concept Of Equality In Civil Procedure, William B. Rubenstein

Cardozo Law Review

No abstract provided.

How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw Jr.

Michigan Law Review

Bismarck famously remarked: "Laws are like sausages. It's better not to see them being made." This witticism applies with peculiar force to constitutional law. Judges and commentators examine the sausage (the Supreme Court's doctrine), but ignore the messy details of its production. Maxwell Stearns has demonstrated, with brilliant originality, that the Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing "social choice" economic theory, Professor Stearns argues that the Court, like all multimember decisionmaking bodies, strives to formulate rules that promote both rationality and fairness (p. 4). Viewed through the lens …

Religion, The Rule Of Law, And The Good Of The Whole: A View From The Clergy, Marci A. Hamilton

Articles

No abstract provided.

The Evolution Of The "Essential Nexus": How State And Federal Courts Have Applied Nollan And Dolan And Where They Should Go From Here, J. David Breemer

Washington and Lee Law Review

No abstract provided.

Our Supermajoritarian Constitution, John O. Mcginnis, Michael B. Rappaport

Articles

No abstract provided.