Legislation Commons^™

Unconstitutional Courses, Frederic M. Bloom

Publications

By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.

But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …

The Supreme Court, Democracy And Institutional Reform Litigation, Ross Sandler, David Schoenbrod

NYLS Law Review

No abstract provided.

Judicial Review Before Marbury, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

While scholars have long probed the original understanding of judicial review and the early judicial review case law, this article presents a study of the judicial review case law in the United States before Marbury v. Madison that is dramatically more complete than prior work and that challenges previous scholarship on the original understanding of judicial review on the two most critical dimensions: how well judicial review was established at the time of the Founding and when it was exercised. Where prior work argues that judicial review was rarely exercised before Marbury (or that it was created in Marbury), …

Revenge Of Mullaney V. Wilbur: United States V. Booker And The Reassertion Of Judicial Limits On Legislative Power To Define Crimes, The, Ian Weinstein

Faculty Scholarship

This article offers a historically grounded account of the twists and turns in the Supreme Court's sentencing jurisprudence from the end of World War II to the Court's stunning rejection of the Federal Sentencing Guidelines. The doctrinal shifts that have roiled this area of the law can best be understood as the Court's effort to respond to the changing political and social landscape of crime in America. In the mid 1970's, legislative activity in the criminal law was largely focused on Model Penal Code influenced recodification. In that era, the Supreme Court took power from an ascendant judiciary and gave …

Irresponsible Legislating: Reeling In The Aftermath Of Kelo, Patricia E. Salkin

Scholarly Works

No abstract provided.

Are Title Vi's Disparate Impact Regulations Valid?, Bradford Mank

Faculty Articles and Other Publications

This Essay, however, contends that section 602 disparate impact regulations in Tide VI are valid because Congress has implicitly sanctioned their creation, and explicitly approved them in subsequent related statutes.

Part II of this Essay discusses the legislative history of Tide VI, which suggests that Congress intended to give administrative agencies discretion to define "discrimination" in their Tide VI regulations as prohibiting either intentional conduct or actions having disparate impacts against racial minorities as long as the President approved such rules.

Part III illustrates that five different Congresses have enacted four subsequent related statutes that explicitly incorporate Tide VI disparate …

Electing The Supreme Court, Barry Friedman, Anna Harvey

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.

Environmental Law, Congress, And The Court's New Federalism Doctrine, Christopher H. Schroeder

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.

Congruence And Proportionality For Congressional Enforcement Powers: Cosmetic Change Or Velvet Revolution?, Elisabeth Zoller

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.

Sovereignty And Democracy: The States' Obligations To Their Citizens Under Federal Statutory Law, Lauren K. Robel

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.

Judicial Independence, Judicial Accountability, And The Role Of Constitutional Norms In Congressional Regulation Of The Courts, Charles G. Geyh

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.

Getting Off The Dole: Why The Court Should Abandon Its Spending Doctrine, And How A Too-Clever Congress Could Provoke It To Do So, Lynn A. Baker, Mitchell N. Berman

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.

Thayerian Deference To Congress And Supreme Court Supermajority Rule: Lessons From The Past, Evan H. Caminker

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.

Federalism And The Public Good: The True Story Behind The Religious Land Use And Institutionalized Persons Act, Marci A. Hamilton

Indiana Law Journal

Symposium: Congressional Power in the Shadow of the Rehnquist Court: Strategies for the Future held at Indiana University Law School, February 1-2, 2002.

Interpreting U.S. Treaties In Light Of Human Rights Values, Lori Fisler Damrosch

NYLS Law Review

No abstract provided.

Statutory Interpretation And Mr. Justice Rutledge, Nathaniel L. Nathanson

Indiana Law Journal

No abstract provided.

Should State Corporate Law Define Successor Liability - The Demise Of Cercla's Federal Common Law, Bradford Mank

Faculty Articles and Other Publications

During the 1980s and early 1990s, a series of decisions broadly interpreting the liability provisions of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCIA) appeared destined to transform corporate law practice. CERCIA does not directly address successor liability, but the statute's complex and contradictory legislative history arguably implies that Congress wanted federal courts to apply broad liability principles to achieve the statute's fundamental remedial goal of making polluters and their successors pay for cleaning up hazardous substances.

Notably, a number of courts rejected state corporate law principles that usually limit the liability of successor corporations and instead …

The Reconceptualization Of Legislative History In The Supreme Court, Charles Tiefer

All Faculty Scholarship

In 1995, the Supreme Court began to embrace a approach to interpreting Congressional intent. From that year forward, the Breyers-Stevens model of legislative history, or "institutional legislative history," has seen significant success, emerging in the shadows of the success Justice Scalia's enjoyed while promoting his brand of textualism in the early 1990s. In developing a new way to view Congressional intent, Justices Breyers and Stevens synthesize information gathered from congressional report details, preferably attached to bill drafting choices, thereby renouncing Scalia's reliance on the purposes espoused by the Congressional majority. This new approach, the author contends, rejuvenated the court's approach …

Preemption & Human Rights: Local Options After Crosby V. Nftc, Robert Stumberg

Georgetown Law Faculty Publications and Other Works

In June 2000, the Supreme Court held in Crosby v. National Foreign Trade Council (NFTC) that federal sanctions against Burma preempted the Massachusetts Burma law. With its "Burma Law," Massachusetts sought to replicate the anti-Apartheid boycott, one of the most successful human rights campaigns in history. Massachusetts' Burma law authorized state agencies to exercise a strong purchasing preference in favor of companies that do not conduct business in Burma unless the preference would impair essential purchases or result in inadequate competition.

In Crosby, the Court held that Congress preempted the Massachusetts Burma law when it adopted federal sanctions on …

Mr. Justice Holmes's Constitutionally Crooked Path Part Ii: The State Sovereignty Jurisdictional Stopgap , Mitchell B. Weiss

Cleveland State Law Review

This article analyzes the last turn in Justice Holmes's constitutionally crooked path, largely by penetrating to the very core of the Supreme Court's recent decision in Alden v. Maine. Part I therefore traces the Court's waffling attitude towards the division of regulatory power between the state and federal governments. Then, against this backdrop, Part II takes the jurisdictional turn by analyzing the Court's most recent attempt to resuscitate the Tenth Amendment's check on Congress's Commerce Power. To sharpen the focus, much of this article will focus on the Fair Labor Standards Act, a federal statute that always seems to sit …

Right To Jury Trial, Supreme Court, Dutchess County: People V. Mcintosh

Touro Law Review

No abstract provided.

Self-Incrimination, Supreme Court, Bronx County: Seabrook V. Johnson

Touro Law Review

No abstract provided.

The Clean Air Act Amendments Of 1990 And An Unbridled Spending Power: Will They Survive On The Supreme Court's Road To Substantive Federalism, Mark A. Miller

Cleveland State Law Review

The question remains as to how far the Supreme Court will go in its refortification of the Tenth Amendment. This Note explores emerging federalism trends and evaluates the CAA in light of a stronger state sovereignty that is appearing on the constitutional horizon. Parts II and III examine the CAAA and the constitutional problems engendered by the Act. Part IV examines current Tenth Amendment and Spending Clause jurisprudence, and illustrates that the CAAA is a classic example of how Congress has been able to circumvent the Tenth Amendment with its Spending power. Part V presents a new view of federalism …

Understanding Mahon In Historical Context, William Michael Treanor

Georgetown Law Faculty Publications and Other Works

Despite its enormous influence on constitutional law, Pennsylvania Coal Co. v. Mahon is just such an opinion; the primary purpose of the author’s article Jam for Justice Holmes: Reassessing the Significance of Mahon is to clarify Holmes's intent by placing the opinion in historical context and in the context of Holmes's other opinions. While other scholars have also sought to place Mahon in context, his account differs in large part because of its recognition, as part of the background of Mahon, of a separate line of cases involving businesses affected with a public interest.

The author argues that at …

Equal Protection, Supreme Court, New York County: Walter V. City Of New York Police Department

Touro Law Review

No abstract provided.

Right To Counsel, Supreme Court, Queens County: People V. Bell

Touro Law Review

No abstract provided.

Political Association, Supreme Court, Appellate Division, Third Department: Kalkstein V. Dinapoli

Touro Law Review

No abstract provided.

Right To A Speedy Trial, Supreme Court, Appellate Division, Second Department: People V. Coplin

Touro Law Review

No abstract provided.

Right To Jury Trial, Supreme Court, Appellate Division, Second Department: Hynes V. Tomei Court

Touro Law Review

No abstract provided.

Separation Of Powers, Supreme Court, Appellate Division, Third Department: Dorst V. Pataki

Touro Law Review

No abstract provided.