Jurisprudence Commons^™

Stanford V. Kentucky: The Minimum Age For The Maximum Penalty - Death, 23 J. Marshall L. Rev. 453 (1990), Alison R. Faltersack

UIC Law Review

No abstract provided.

Caplin & Drysdale, Chartered V. United States: Supreme Court Approves Attorney Fee Foreiture, 23 J. Marshall L. Rev. 471 (1990), Stephen M. Kightlinger

UIC Law Review

No abstract provided.

New York V. Sullivan: Shhh .... Don't Say The A Word - Another Outcome-Oriented Abortion Decision, 23 J. Marshall L. Rev. 753 (1990), Christopher C. Kendall

UIC Law Review

No abstract provided.

Back To Open Season On American Product Ingenuity: Bonito Boats, Inc. V. Thunder Craft, Inc., 24 J. Marshall L. Rev. 209 (1990), Alex Devience Jr.

UIC Law Review

No abstract provided.

The Corporate Personality In American Law: A Summary Review, Phillip Blumberg

Faculty Articles and Papers

No abstract provided.

Form And Function In The Administration Of Justice: The Bill Of Rights And Federal Habeas Corpus, Larry Yackle

Faculty Scholarship

Part I critiques the Report's insistence that accurate fact finding exhausts, or nearly exhausts, the objectives of criminal justice, identifies the fundamental role of the Bill of Rights in the American political order, and situates federal habeas corpus within that framework. Part II traces the Report's historical review of the federal habeas jurisdiction and critiques the Report's too-convenient reliance on selected materials that, on examination, fail to undermine conventional understandings of the writ's development as a postconviction remedy. Part III responds to the Report's complaints regarding current habeas corpus practice and refutes contentions that the habeas jurisdiction overburdens federal dockets …

Accountability To The Law, Walter F. Mondale

Touro Law Review

No abstract provided.

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

Touro Law Review

No abstract provided.

A Plea For Help: Pleading Problems In Section 1983 Municipal Liability Claims, Evan S. Schwartz

Touro Law Review

No abstract provided.

The Tempting Of America, Gerard V. Bradley

Journal Articles

THE TEMPTING OF AMERICA by Robert Bork. New York: The Free Press/Macmillan, 1990. Hdbd: pp. xiv-432.

In the concluding third of The Tempting of America Robert Bork recounts his unsuccessful fight to gain Senate confirmation to the Supreme Court.

Bork relates his war story to the rest of the book. In the first two-thirds of Tempting, he takes us on a grand tour of the Constitution's career, starting in the courts with Chief Justice John Marshall, on through the Civil War, Reconstruction, and New Deal eras. He finishes with a detailed examination of the Warren, Burger and Rehnquist Courts. …

Tribe's "Jurisprudence Of The Religion Clauses", Gerard V. Bradley

Journal Articles

Laurence Tribe has usefully been described as a constitutional apologist for liberal political causes. His conspicuous opposition to the nomination of Judge Robert Bork to the Supreme Court and his imaginative defenses of Roe v. Wade have fueled that image. Tribe's "jurisprudence of the religion clauses" both confounds and complicates the picture. He sees no constitutional difficulty with public education vouchers, and defends the Catholic Church against "pro-choicers" who would strip its tax-exempt status because of the Bishops' "pro-life" activities. Tribe thinks that a public school moment-of-silence can be consistent with the Constitution and carves out a considerable zone of …

Where To Draw The Guideline: Factoring The Fruits Of Illegal Searches Into Sentencing Guidelines Calculations, Cheryl G. Bader, David S. Douglas

Touro Law Review

No abstract provided.

Assumption Of Risk In New York Under Cplr 1411: Complete Bar Or Comparative Fault?, Thomas P. Lalor

Touro Law Review

No abstract provided.

Progressive And Conservative Constitutionalism, Robin West

Georgetown Law Faculty Publications and Other Works

American constitutional law in general, and fourteenth amendment jurisprudence in particular, is in a state of profound transformation. The "liberal-legalist" and purportedly politically neutral understanding of constitutional guarantees that dominated constitutional law and theory during the fifties, sixties, and seventies, is waning, both in the courts and in the academy. What is beginning to replace liberal legalism in the academy, and what has clearly replaced it on the Supreme Court, is a very different conception - a new paradigm - of the role of constitutionalism, constitutional adjudication, and constitutional guarantees in a democratic state. Unlike the liberal-legal paradigm it is …

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 …

The Meaning Of Equality And The Interpretive Turn, Robin West

Georgetown Law Faculty Publications and Other Works

The turn to hermeneutics and interpretation in contemporary legal theory has contributed at least two central ideas to modern jurisprudential thought: first, that the "meaning" of a text is invariably indeterminate -- what might be called the indeterminacy claim -- and second, that the unavoidably malleable essence of texts -- their essential inessentiality -- entails that interpreting a text is a necessary part of the process of creating the text's meaning. These insights have generated both considerable angst, and considerable excitement among traditional constitutional scholars, primarily because at least on first blush these two claims seem to inescapably imply a …

Virtues And Voices, Lawrence B. Solum

Georgetown Law Faculty Publications and Other Works

This essay explores two ideas that have recently played an important role in discourse about the American constitutional order. The first idea has emerged from the revival of civic republicanism. The republican revival has focused our attention on the classical conception of civic virtue. Our basic social arrangements ought to nourish a citizenry with the characteristics of mind and will that promote human flourishing. The second idea, expressed in critical race theory and feminist jurisprudence, is that we have an obligation as a society and as scholars to attend to excluded voices. The juxtaposition of these two themes offers an …

Justice Scalia And The Elusive Idea Of Discrimination Against Interstate Commerce, Richard B. Collins

Publications

No abstract provided.

Meeting The Enemy, Robert F. Nagel

Publications

No abstract provided.

Mastery, Slavery, And Emancipation, Guyora Binder

Journal Articles

Hegel's dialectic of master and slave in the Phenomenology of Mind portrays a master unable to win genuine recognition from a slave because unwilling to confer it. The dialectic implies that freedom has to be conceived as association based on mutual respect, rather than independence. This article offers a communitarian interpretation of emancipation inspired by Hegel's dialectic of master and slave. It proceeds from an account of slave society which, like Hegel's dialectic, equates slavery with the denial of social recognition. This account argues that the experience of slave society led both the masters and the slaves to conceive of …

Judge Richard Posner's Wealth Maximization Principle: Another Form Of Utilitarianism?, Robin F. Grant

Cardozo Law Review

No abstract provided.

Arizona V. Roberson: The Supreme Court Expands Suspects' Rights In The Custodial Interrogation Setting, 22 J. Marshall L. Rev. 685 (1989), Thomas N. Radek

UIC Law Review

No abstract provided.

The Movement To Assimilate The American Indians: Jurisprudential Study, John W. Ragsdale Jr

Faculty Works

In 1934, the United States made a revolutionary shift in Indian policy. Laws were passed that ended most assimilation measures and began, instead, a preservation and promotion of tribalism. Why did this happen? What changes in American thought, politics and economy could precipitate such a reversal? Felix Cohen, a former special assistant to the Attorney General, and known as the "Blackstone of American Indian Law," noted: "Like the miner's canary, the Indian marks the shifts from fresh air to poison gas in our political atmosphere; and our treatment of Indians, even more than our treatment of other minorities, reflects the …

In The Beginning: The Washington Supreme Court A Century Ago, Charles H. Sheldon, Michael Stohr-Gillmore

Seattle University Law Review

This Article will discuss (1) the politics that influenced the drafting of the judicial article (article IV) in the constitutional convention; (2) the election of the first five members of the bench and the backgrounds of those inaugural judges; (3) the particular approach toward judicial review adopted by these five jurists (activism-restraint); and (4) the personal relations among these members of the supreme court. This Article will provide a personal perspective of the first five judges and their court.

Police Trespass And The Fourth Amendment: A Wall In Need Of Mending, 22 J. Marshall L. Rev. 795 (1989), Clifford S. Fishman

UIC Law Review

No abstract provided.

Are Constitutional Cases Political?, Brian Slattery

Articles & Book Chapters

To argue that constitutional adjudication is political does not carry us very far unless we go on to specify what the pursuit of politics entails, the goals it seeks to attain, and the basic principles informing its practice. The word political has no clearly defined meaning in modern usage. Rather, it has the chameleon-like capacity to change colours so as to blend with a variety of different conceptual backgrounds. Of course, if we adopt an Aristotelian notion of politics as the pursuit of the common good of a community and the individual goods of its members, we can agree that …

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

Publications

No abstract provided.

Section 1983, Martin A. Schwartz, Honorable George C. Pratt, Leon Friedman

Touro Law Review

No abstract provided.

Fourth Amendment, William E. Hellerstein

Touro Law Review

No abstract provided.

Law, Literature, And The Celebration Of Authority, Robin West

Georgetown Law Faculty Publications and Other Works

Richard Posner's new book, Law and Literature: A Misunderstood Relation, is a defense of “liberal legalism” against a group of modern critics who have only one thing in common: their use of either particular pieces of literature or literary theory to mount legal critiques. Perhaps for that reason, it is very hard to discern a unified thesis within Posner's book regarding the relationship between law and literature. In part, Posner is complaining about a pollution of literature by its use and abuse in political and legal argument; thus, the “misunderstood relation” to which the title refers. At times, Posner suggests …