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Regulatory Taking Of Public Water And Land Resource Development Rights After Lucas, Jerome C. Muys

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

7 pages.

City Of Tigard And Takings Law, Richard D. Lazarus

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

10 pages.

Contains 1 page of references.

Agenda: Regulatory Takings And Resources: What Are The Constitutional Limits?, University Of Colorado Boulder. Natural Resources Law Center, Byron R. White Center For The Study Of American Constitutional Law

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

Sponsored by the University of Colorado's Natural Resources Law Center and the Byron R. White Center for American Constitutional Study.

Conference organizers, faculty and/or moderators included University of Colorado School of Law professors David H. Getches, Lawrence J. MacDonnell, Gene R. Nichol, Jr. and Mark Squillace.

Governmental regulation for environmental protection and other important public purposes can affect the manner in which land and natural resources are developed and used. The U.S. constitution (and most state constitutions) prohibit the government from "taking" property without payment of compensation. Originally intended to apply to situations where the government physically seized private property …

Girls Lean Back Everywhere: The Law Of Obscenity And The Assault On Genius By Edward De Grazia, Robert M. O'Neil

Cardozo Law Review

Such a headline from the 1990s reminds American readers that, however shameful may have been the treatment of obscenity and pornography in the United States during the past one hundred years, things could have been worse. Even so, the record here is hardly a source of pride-nor does the story have an altogether happy ending, if it has one at all. Yet it is a story that badly needs to be told, and never has it been better told than by Edward de Grazia in Girls Lean Back Everywhere.

Looking For Rights In All The Wrong Places: Resolving Custody Disputes In Divorce Proceedings, Katherine Hunt Federle

Cardozo Law Review

Eleven-year-old Shane P. left the office of his court-appointed law guardian in tears. Already upset by the escalating custody battle between his divorcing parents, Shane told his father that he wanted to "get rid of" his law guardian and subsequently sent her a letter notifying her that she was fired. Influenced, in part, by the case of Gregory K., Shane then retained the services of another attorney with funds provided by his father. Although the trial judge initially ruled that only the court could dismiss the law guardian who had been appointed to represent Shane's best interests, the judge subsequently …

Canada's New Immigration Act: An Affront To The Charter And Canada's Collective Conscience?, Mark Anthony Drumbl

Scholarly Articles

This essay explores the constitutionality of sections 46.01(1) and 19(1)(c.1)(i) of the federal Immigration Act. These sections empower immigration officials to exclude from the refugee determination process any claimant who has arrived in Canada via a "safe" third country or who has been determined to have committed a criminal offence in the home country, unless the claimant falls into several narrow exceptions provided by the statute. The author submits that these provisions violate the procedural requirements of fundamental justice guaranteed by section 7 of the Canadian Charter of Rights and Freedoms. A further investigation is made as to whether these …

Exploring The Constitutional Limits To Workfare And Learnfare, Mark Anthony Drumbl

Scholarly Articles

In recent times, there has been growing interest in the concepts of mandatory work and training programs for social assistance recipients. In this article, the author examines the social policy arguments for and against such programs. He also analyzes them from the perspective of the Charter of Rights. He concludes that mandatory work and training programs may be subject to legal challenge under the Charter of Rights unless participation is voluntary or the programs are carefully designed.

Is The Death Knell Sounding For Animal Rights - The Sacrifice Of Animals For Religious Purposes Under The Guise Of The First Amendment Right To The Free Exercise Of Religion, Mercedes A. Sanchez

St. Thomas Law Review

As a result of several Supreme Court decisions and a recent legislative enactment, it has become increasingly more difficult to protect animal rights through legislation. This is particularly true when the legislation is challenged as unduly encroaching upon the free exercise of religion. This comment questions the Court's most recent application of the strict scrutiny standard in free exercise challenges which effectively swept away the rights of animals. First, this comment discusses the evolution of animal legal rights. Next, this comment provides an overview of free exercise jurisprudence with particular emphasis on the test articulated in Employment Division, Department of …

Abortion Rights In America, Joan R. Bullock

Journal Publications

The purpose of this Article is to raise the question of whether abortion is an answer to the numerous inequalities that confront many women when there is an unwanted pregnancy, or whether abortion exacerbates the inequalities by encouraging the subordination of women to men. There is the additional question of whether the judicial system is the appropriate forum for deciding the abortion issue-an issue that invokes high emotions and one that is fraught with deeply held and divergent moral convictions. It is my opinion that abortion has provided women with only an illusion of choice rather than meaningful choice because …

The Constitution Of Reasons, Robin West

Georgetown Law Faculty Publications and Other Works

Cass Sunstein's book, The Partial Constitution, brings together a number of his constitutional law essays from the last ten years. During that time, Sunstein has argued, powerfully, for the unconstitutionality of regulatory constraints on access to abortion; for the constitutionality of and the need for regulation of violent pornography; for the constitutionality of limits on both campaign spending and congressional control over public broadcasting; for the deep consistency, conventional wisdom to the contrary notwithstanding, of the Court's repudiation of Lochner in 1937 with its 1974 decision in Roe v. Wade; for the view that we should accord far less deference …

Executive Autonomy, Judicial Authority And The Rule Of Law: Reflections On Constitutional Interpretation And The Separation Of Powers, Michel Rosenfeld

Cardozo Law Review

The United States Constitution is remarkably silent on the subject of ultimate responsibility for constitutional interpretation, despite its elaborate prescriptions for a scheme of separation of powers that interweaves elements of independence and of interdependence among the distinct branches of the federal government. It is hardly surprising, therefore, that there have been several disputes between the President and the Supreme Court concerning the scope of executive autonomy in constitutional interpretation. In recent years, moreover, the conflict between judicial authority and executive autonomy has been exacerbated by efforts to legitimize presidential interpretations of the Constitution that are inconsistent with Supreme Court …

The Constitution Outside The Courts, Frederick A.O. Schwarz Jr.

Cardozo Law Review

The forty-fourth Cardozo Lecture, delivered in memory of Benjamin N. Cardozo at the House of the Association on December 5, 1991.

Diversity And Discrimination In Our Midst: Musings On Constitutional Schizophrenia, Cultural Conflict, And 'Interculturalism' At The Threshold Of A New Century, Francisco Valdes

St. Thomas Law Review

This essay argues that the 1990s pose a postponed but inescapable challenge: the fulfillment of the nation's historic commitment to liberty/ equality ideals for all Americans, regardless of race/ethnicity, sex/gender, economic class or sexuality/sexual orientation. In pursuing this argument, this essay traces the historical and jurisprudential continuities regarding (non)liberty/(in)equality that has plagued the American constitutional order from inception to the present, and then focuses on current controversies. Part I sketches a brief history of the liberty/ equality and non-liberty/inequality cross-traditions embedded into American law and society at the nation's genesis in order to show how the cross-traditions work at cross-purposes …

Chase Court And Fundamental Rights: A Watershed In American Constitutionalism, The , Robert J. Kaczorowski

Faculty Scholarship

Three weeks before he died in May 1873, the frail and ailing Salmon P. Chase joined three of his brethren in dissent in one of the most important cases ever decided by the United States Supreme Court, the Slaughter-House Cases.1 This decision was a watershed in United States constitutional history for several reasons. Doctrinally, it represented a rejection of the virtually unanimous decisions of the lower federal courts upholding the constitutionality of revolutionary federal civil rights laws enacted in the aftermath of the Civil War. Institutionally, it was an example of extraordinary judicial activism in overriding the legislative will of …

The Role Of Public Opinion In Constitutional Interpretation, James G. Wilson

Law Faculty Articles and Essays

This Article seeks to answer two questions. First, to what degree has public opinion influenced American constitutional interpretation, both on and off the Supreme Court, over the past two centuries? Second, how much weight, if any, should constitutional decision-makers give to public opinion, however that protean concept is defined? The Article initially places these queries in a contemporary context by considering the extended discussion of public opinion in the Planned Parenthood v. Casey opinions of Justice Souter, Chief Justice Rehnquist, and Justice Scalia. Justice Souter partially relied on public opinion to not overrule the constitutional right to an abortion created …

On Property And Constitutionalism, Cass R. Sunstein

Cardozo Law Review

No abstract provided.

The Moment Of Constitutional Opportunity, Marci A. Hamilton

Cardozo Law Review

Professor Sunstein speaks perceptively to the debate over how the Eastern European countries should proceed following their sudden constitutional crises. The Eastern European framer would do well to keep his checklist of constitutional features at hand. Two aspects of his task, however, raise rather interesting and related questions. At base, I raise the question of whether Eastern Europe has reached the "moment of constitutional opportunity" that Professor Sunstein asserts it has.

Girls Lean Back Everywhere: The Law Of Obscenity And The Assault On Genius, Chapter 30, Edward De Grazia

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Machiavelli And The Politics Of Welfare, National Health, And Old Age: A Comparative Perspective Of The Policies Of The United States And Canada, Camilla Watson

Scholarly Works

This Article maintains that in order to fully comprehend the politics of welfare, retirement security, and national health coverage, it is necessary to examine Machiavellian principles in relation to the variables of economic development and inter-party competition. If the principles of Machiavelli are applied in a slightly different and more constructive manner, they may facilitate reform of the American welfare, retirement, and national health systems. Now that the political balance in the United States has shifted from the conservative to the liberal, the time is ripe to consider reforming the entire Social Security system and instituting a comprehensive national health …

Street Harassment And The Informal Ghettoization Of Women, Cynthia Grant Bowman

Cornell Law Faculty Publications

No abstract provided.

Ackerman's Proposal For Popular Constitutional Lawmaking: Can It Realize His Aspirations For Dualist Democracy?, Philip J. Weiser

Publications

No abstract provided.

Defendants' Brief In The School Finance Case: Mcduffy V. Robertson: An Excerpt And A Summary, Douglas H. Wilkins, Robert H. Blumenthal, Mary Connaughton

Faculty Scholarship

The wisdom of promoting public education in the Commonwealth was recognized by the earliest settlers, the framers of the Constitution, and many subsequent legislatures, officials, educators and citizens. The opinions of the Department, the Secretary of Education, the Governor and various educators, contained in the stipulation, demonstrate that a policy of supporting public education is as important today as ever.²

The implementation of this policy goal by the Legislature and municipalities involves choices that are at the heart of representative government: how much public money to raise, how best to allocate the money among education and the many other …

A Comment On Cass Sunstein's Equality, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

Grassroots Voices: Local Action And National Military Policy, Stephanie A. Levin

Buffalo Law Review

No abstract provided.

Back To The Future: Original Intent As A Means For Vitalizing The Fourteenth Amendment In The Context Of Race, Raneta J. Lawson

St. Thomas Law Review

Donald E. Lively's book The Constitution and Race exposes in a methodological way the historical origin of the conflict between symbolism and substance in the context of race. Lively chronicles two centuries of constitutional jurisprudence pertaining to race from the initial deferral of race-based issues at the nation's founding to the modem day catering to majoritarian interests that continues to subordinate racial concerns. Throughout this jurisprudential retrospective, Lively demonstrates how race-based considerations have permeated nearly every aspect of society and yet such considerations remain significantly unattended because of national policies that ultimately indulge competing priorities. Lively argues that a recognition …

Unfocused Governmental Interests, Robert F. Nagel

Publications

No abstract provided.

Altruistic Communities And The Responsible Use Of Legal Power, John W. Ragsdale Jr

Faculty Works

When an animate, conscious body - individual, collective, economic or political - is imbued with a strong central vision or focus, the ongoing actions of the body automatically become coordinated and subordinated to the dictates of that core imagery. When the center is affirmative and qualitative, then the body has a distinct capacity for self-sufficiency, endurance, and equilibrium. If, however, the central focus is negative or linear, then the capacity for internal homeostasis is greatly lessened. A core of fear, anger, or endless material craving can prompt the exercises of power that herein will be called irresponsible. Such exercises of …

A Constitutional Right Of Religious Exemption: An Historical Perspective, Philip A. Hamburger

Faculty Scholarship

Did late eighteenth-century Americans understand the Free Exercise Clause of the United States Constitution to provide individuals a right of exemption from civil laws to which they had religious objections? Claims of exemption based on the Free Exercise Clause have prompted some of the Supreme Court's most prominent free exercise decisions, and therefore this historical inquiry about a right of exemption may have implications for our constitutional jurisprudence. Even if the Court does not adopt late eighteenth-century ideas about the free exercise of religion, we may, nonetheless, find that the history of such ideas can contribute to our contemporary analysis. …

Experimenting With The "Right To Die" In The Laboratory Of The States, Thomas A. Eaton, Edward J. Larson

Scholarly Works

The purposes of this Article are twofold. Our first purpose is to reexamine the legal foundations of a patient's right to refuse treatment. The Court's equivocal handling of the federal constitutional issues in Cruzan v. Director, Missouri Department of Health invites a closer look at state constitutional, statutory and common law. The source of the underlying right will affect state experimentation with substantive and procedural rules in this area. Our second purpose is to describe the current status of the states' experiments with the right to die. That is, we elaborate in more detail on the state constitutional, statutory and …

Abortion And The Law: A Problem Without A Solution?, Robert F. Drinan S.J.

Michigan Law Review

A Review of Abortion: The Clash of Absolutes by Laurence H. Tribe