Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- Seattle University School of Law (189)
- Universitas Indonesia (121)
- University of Michigan Law School (40)
- Northwestern Pritzker School of Law (30)
- Fordham Law School (7)
-
- University of Arkansas, Fayetteville (5)
- Maurer School of Law: Indiana University (4)
- Penn State Dickinson Law (4)
- Brooklyn Law School (3)
- Pepperdine University (3)
- Texas A&M University School of Law (3)
- UIC School of Law (3)
- University of Georgia School of Law (3)
- Villanova University Charles Widger School of Law (3)
- DePaul University (2)
- Notre Dame Law School (2)
- The Catholic University of America, Columbus School of Law (2)
- University of Connecticut (2)
- University of Oklahoma College of Law (2)
- University of Washington School of Law (2)
- Vanderbilt University Law School (2)
- Yeshiva University, Cardozo School of Law (2)
- American University Washington College of Law (1)
- Bellarmine University (1)
- Brigham Young University Law School (1)
- City University of New York (CUNY) (1)
- Columbia Law School (1)
- Emory University School of Law (1)
- Georgetown University Law Center (1)
- James Madison University (1)
- Keyword
-
- United States Supreme Court (30)
- Constitution (19)
- Law (15)
- Federalism (14)
- Regulation (9)
-
- Supreme Court (9)
- Constitutional interpretation (8)
- Discrimination (8)
- Justice (8)
- SFFA (8)
- Antitrust (7)
- Copyright (7)
- Morality (7)
- Racial justice (7)
- Affirmative Action (6)
- Bill of Rights (6)
- Constitutional law (6)
- ESG (6)
- History (6)
- Investment (6)
- Jurisprudence (6)
- Racial discrimination (6)
- Separation of powers (6)
- Substantive due process (6)
- Birth control (5)
- Contraceptive (5)
- Decision making (5)
- Diversity (5)
- Education (5)
- Efficiency (5)
- Publication Year
- Publication
-
- Seattle University Law Review (187)
- "Dharmasisya” Jurnal Program Magister Hukum FHUI (121)
- Northwestern University Law Review (27)
- Articles (18)
- Michigan Law Review (17)
-
- Fordham Law Review (7)
- Arkansas Law Review (5)
- Dickinson Law Review (2017-Present) (4)
- Northwestern Journal of Law & Social Policy (3)
- Pepperdine Law Review (3)
- Texas A&M Law Review (3)
- Villanova Environmental Law Journal (1991 - ) (3)
- Catholic University Law Review (2)
- Faculty Articles (2)
- Faculty Scholarship (2)
- Indiana Journal of Law and Social Equality (2)
- Indiana Law Journal (2)
- Notre Dame Law Review (2)
- Reviews (2)
- UIC Law Review (2)
- Vanderbilt Law Review (2)
- Washington Law Review (2)
- American Indian Law Journal (1)
- BYU Law Review (1)
- Brooklyn Journal of Corporate, Financial & Commercial Law (1)
- Brooklyn Journal of International Law (1)
- Brooklyn Law Review (1)
- Buffalo Law Review (1)
- Cardozo Journal of Equal Rights & Social Justice (1)
- DePaul Business & Commercial Law Journal (1)
- Publication Type
Articles 421 - 450 of 452
Full-Text Articles in Public Law and Legal Theory
Chicago, Post-Chicago, And Neo-Chicago, Daniel A. Crane
Chicago, Post-Chicago, And Neo-Chicago, Daniel A. Crane
Reviews
Of all of Chicago's law and economics conquests, antitrust was the most complete and resounding victory. Chicago, of course, is a synecdoche for ideological currents that swept through and from Hyde Park beginning in the 1950s and reached their peak in the 1970s and 1980s. From early roots in antitrust and economic regulation, the Chicago School branched outward, first to adjacent fields like securities regulation, corporate law, property, and contracts, and eventually to more distant horizons like sexuality and family law. Predictably, the Chicago School exerted its greatest influence in fields closely tied to commercial regulation. But never did Chicago …
Constitutional Interpretation And Judicial Review: A Case Of The Tail Wagging The Dog, Michael Halley
Constitutional Interpretation And Judicial Review: A Case Of The Tail Wagging The Dog, Michael Halley
Michigan Law Review First Impressions
A response to John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 2003 (2009). Professor John Manning's analysis of the Supreme Court's recent federalism decisions works as a platform to further the cause of textualism. His argument fails to persuade, however, because the textualism he says the Court should embrace in federalism cases is antithetical to the atextual nature of the Court's jurisdiction to adjudicate the constitutionality of legislation. Manning prefaces his work by telling readers that his analysis is not an end in itself. His aim, rather, is to "use the methodology" the …
Limits Of Interpretivism, Richard A. Primus
Limits Of Interpretivism, Richard A. Primus
Articles
Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. This picture is relatively simple, and Justice Markman apparently approves of its simplicity. But matters may in fact be a good deal more complex.
Obama's Antitrust Agenda, Daniel A. Crane
Obama's Antitrust Agenda, Daniel A. Crane
Articles
Antitrust law is back in vogue. After years in the wilderness, antitrust enforcement has reemerged as a hot topic in Washington and in the legal academy. In one heady week inMay of 2009, a frontpage story in the New York Times reported the dramatic decision of Christine Varney —theObama administration’s new AntitrustDivision head—to jettison the entire report onmonopolization offenses released by the Bush JusticeDepartment just eightmonths earlier. In a speech before the Center for American Progress, Varney announced that the Justice Department is “committed to aggressively pursuing enforcement of Section 2 of the Sherman Act.” As if to prove that …
Linkline's Institutional Suspicions, Daniel A. Crane
Linkline's Institutional Suspicions, Daniel A. Crane
Articles
Antitrust scholars are having fun again. Not so long ago, they were the poor, redheaded stepchildren of the legal academy, either pining for the older days of rigorous antitrust enforcement or trying to kill off what was left of the enterprise. Other law professors felt sorry for them, ignored them, or both. But now antitrust is making a comeback of sorts. In one heady week in May of 2009, a front-page story in the New York Times reported the dramatic decision of Christine Varney-the Obama Administration's new Antitrust Division head at the Department of Justice-to jettison the entire report on …
When Should Original Meanings Matter?, Richard A. Primus
When Should Original Meanings Matter?, Richard A. Primus
Articles
Constitutional theory lacks an account of when each of the familiar sources of authority-text, original meaning, precedent, and so on-should be given weight. The dominant tendency is to regard all sources as potentially applicable in every case. In contrast, this Article proposes that each source of authority is pertinent in some categories of cases but not in others, much as a physical tool is appropriate for some but not all kinds of household tasks. The Article then applies this approach to identify the categories of cases in which original meaning is, or is not, a valid factor in constitutional decisionmaking.
Judicial Power And Mobilizable History, Richard A. Primus
Judicial Power And Mobilizable History, Richard A. Primus
Articles
One contribution that law professors can make to constitutional discourse, I suggest, is the nurturing of new mobilizable histories. A "mobilizable history," as I will use the term, is a narrative, image, or other historical source that is sufficiently well-known to the community of constitutional decisionmakers so as to be able to support a credible argument in the discourse of constitutional law. It draws upon materials that are within the collective memory of constitutional interpreters; indeed, a necessary step in nurturing a new mobilizable history is to introduce new information into that collective memory or to raise the prominence of …
The Business Of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy Of Justice George Sutherland, 10 Wm. & Mary Bill Rts. J. 249 (2002), Samuel R. Olken
UIC Law Open Access Faculty Scholarship
In The Business of Expression: Economic Liberty, Political Factions And The Forgotten First Amendment Legacy of Justice George Sutherland, Samuel Olken traces the dichotomy that emerged in constitutional law in the aftermath of the Lochner era between economic liberty and freedom of expression. During the 1930s, while a deeply divided United States Supreme Court adopted a laissez faire approach to economic regulation, it viewed with great suspicion laws that restricted the manner and content of expression. During this period, Justice George Sutherland often clashed with the majority consistently insisting that state regulation of private economic rights bear a close and …
Cost-Benefit Default Principles, Cass R. Sunstein
Cost-Benefit Default Principles, Cass R. Sunstein
Michigan Law Review
Courts should be reluctant to apply the literal terms of a statute to mandate pointless expenditures of effort. . .. Unless Congress has been extraordinarily rigid, there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value. It seems bizarre that a statute intended to improve human health would .. . lock the agency into looking at only one half of a substance's health effects in determining the maximum level for that substance. [I]t is only where there is "clear congressional intent to …
Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier
Uncoupling The Law Of Takings, Michael A. Heller, James E. Krier
Articles
The law of takings couples together matters that should be treated independently. The conventional view, shared by courts and commentators alike, has been that any takings case can be resolved in one of two ways: either there is a taking and compensation is due, or there is no taking and no compensation is due. These results are fine as long as one holding or the other serves the two central concerns of the Takings Clause - eficiency and justice. But a problem arises when the two purposes behind the law of takings come into cordhct, as they readily might. It …
Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki
Finding The Constitution: An Economic Analysis Of Tradition's Role In Constitutional Interpretation, Adam C. Pritchard, Todd J. Zywicki
Articles
In this Article, Professor Pritchard and Professor Zywicki examine the role of tradition in constitutional interpretation, a topic that has received significant attention in recent years. After outlining the current debate over the use of tradition, the authors discuss the efficiency purposes of constitutionalism--precommitment and the reduction of agency costs--and demonstrate how the use of tradition in constitutional interpretation can serve these purposes. Rejecting both Justice Scalia's majoritarian model, which focuses on legislative sources of tradition, and Justice Souter's common-law model, which focuses on Supreme Court precedent as a source of tradition, the authors propose an alternative model--the "finding model"-- …
Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier
Making Something Out Of Nothing: The Law Of Takings And Phillips V. Washington Legal Foundation, Michael A. Heller, James E. Krier
Articles
Phillips v. Washington Legal Foundation held that interest on principal amounts deposited into IOLTA accounts is the property of the various clients who handed over the money but expressed no view as to whether the Texas IOLTA program worked a taking, or, if it did, whether any compensation was due. The debates among the justices about the meaning of private property, argued in terms of contextual and conceptual severance, are unlikely to prove fruitful. We elaborate a better approach in terms of the underlying purposes of just compensation. We conclude that efficiency and justice are best served by uncoupling matters …
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Deterrence And Distribution In The Law Of Takings, Michael A. Heller, James E. Krier
Articles
Supreme Court decisions over the last three-quarters of a century have turned the words of the Takings Clause into a secret code that only a momentary majority of the Court is able to understand. The Justices faithfully moor their opinions to the particular terms of the Fifth Amendment, but only by stretching the text beyond recognition. A better approach is to consider the purposes of the Takings Clause, efficiency and justice, and go anew from there. Such a method reveals that in some cases there are good reasons to require payment by the government when it regulates property, but not …
Permissible Accommodation Of Religion And The Alternative Burden, Ei Ichiro Takahata
Permissible Accommodation Of Religion And The Alternative Burden, Ei Ichiro Takahata
LLM Theses and Essays
In this thesis, the author discusses the extent to which the government can afford to give accommodation within the limits of the Establishment Clause. In Chapter II, the author reviews the theory of the permissible accommodation referred to in the Supreme Court of the United States. In Chapter III, the author examines scholarly debates on the accommodation. Then, the author discusses German and Japanese law of the accommodation in Chapter IV. There, those cases suggest the possibility of alternative burdens on religious believers. The alternative burdens are considered the price of the accommodation. The author concludes that the government has …
Equality And Freedom Of Speech (Eighteenth Annual Law Review Symposium: Demise Of The First Amendment? Focus On Rico And Hate Crime Litigation), Terrance Sandalow
Equality And Freedom Of Speech (Eighteenth Annual Law Review Symposium: Demise Of The First Amendment? Focus On Rico And Hate Crime Litigation), Terrance Sandalow
Other Publications
The editors responsible for today's symposium have posed an alarming question: whether we are witnessing the demise of the First Amendment. I want to dispel at the outset any anxiety the question may have aroused. The First Amendment is alive and well; indeed, it is thriving. I believe, though I cannot prove, that public respect for the values it expresses has never been greater than it has been in recent years. Whether or not I am correct in that belief, however, it is certain that constitutional protections against governmental efforts to limit speech and other forms of expressive activity are …
What Is A Postmodern Constitutionalism?, J. M. Balkin
What Is A Postmodern Constitutionalism?, J. M. Balkin
Michigan Law Review
I begin with a puzzle. It must certainly strike one as odd that the subject of postmodern constitutional law arises at a time when the actual arbiters of the Constitution - the federal judiciary and in particular the Supreme Court of the United States - appear to be more conservative than they have been for many years, and indeed, are likely to remain so for the foreseeable future. Postmodernism is often associated with what is new, innovative, and on the cutting edge of cultural development. Yet if we were to define the elements of a postmodern constitutional culture, it would …
The Interpreters, Kenneth L. Karst
The Interpreters, Kenneth L. Karst
Michigan Law Review
A Review of Justice as Translation: An Essay in Cultural and Legal Criticism by James Boyd White
The Fee Awards Act Of 1976: Examining The Foundation For Legislative Reform Of Attorney's Fees Shifting, 18 J. Marshall L. Rev. 77 (1984), Randall R. Rader
The Fee Awards Act Of 1976: Examining The Foundation For Legislative Reform Of Attorney's Fees Shifting, 18 J. Marshall L. Rev. 77 (1984), Randall R. Rader
UIC Law Review
No abstract provided.
Legislative Formality, Administrative Rationality, Harold H. Bruff
Legislative Formality, Administrative Rationality, Harold H. Bruff
Publications
No abstract provided.
Justice And The Bureaucratization Of Appellate Courts, Joseph Vining
Justice And The Bureaucratization Of Appellate Courts, Joseph Vining
Articles
The author notes the growing bureaucratization of appellate justice in the United States and, in particular, the drafting of opinions by law clerks rather than by judges. Taking the Supreme Court of the United States as an example, and comparing its internal procedure with that of large administrative agencies, he questions whether the method of analysis familiarly used by lawyers to arrive at an authoritative statement of law is applicable to legal texts bureaucratically produced. He suggests that legal method and its presuppositions are ultimately associated with the authority of law, and concludes that there may be critical losses not …
Constitutional Interpretation, Terrance Sandalow
Constitutional Interpretation, Terrance Sandalow
Articles
"[We] must never forget," Chief Justice Marshall admonished us in a statement pregnant with more than one meaning, "that it is a constitution we are expounding."' Marshall meant that the Constitution should be read as a document "intended to endure for ages.to come, and, consequently, to be adapted to the various crises of human affairs."'2 But he meant also that the construction placed upon the document must have regard for its "great outlines" and "important objects."'3 Limits are implied by the very nature of the task. There is not the same freedom in construing the Constitution as in constructing a …
Privacy In Connecticut, Arthur E. Sutherland
Privacy In Connecticut, Arthur E. Sutherland
Michigan Law Review
Occasionally a judgment of our Supreme Court, delivered in a superficially petty case, suddenly before our startled eyes displays fundamentals of our constitutional theory. Thus, in Griswold v. Connecticut, holding unconstitutional an 1879 Connecticut statute forbidding all persons to use contraceptive devices, the Court found it necessary to discover a "right of privacy" latent in the Bill of Rights and incorporated into the due process clause of the fourteenth amendment. The outcome of the case is satisfying; all nine Justices joined in saying, in one way or another, that Connecticut's statute was nonsense. I am happy to see this …
Nine Justices In Search Of A Doctrine, Thomas I. Emerson
Nine Justices In Search Of A Doctrine, Thomas I. Emerson
Michigan Law Review
To the ordinary layman, Griswold v. Connecticut seemed easy. But to the lawyer it was somewhat more difficult. The lawyer's problem with the case was that the issues did not readily fit into any existing legal pigeonhole. Actually, there were five possibilities. The case could have been dealt with under the equal protection clause, the first amendment, substantive due process, the right of privacy, or, in extremis, the ninth amendment. In order to strike down the statute under any of these doctrines, however, the Court would be forced to enter uncharted waters. Whatever course the Court took, its action …
The Griswold Penumbra: Constitutional Charter For An Expanded Law Of Privacy?, Robert G. Dixon Jr.
The Griswold Penumbra: Constitutional Charter For An Expanded Law Of Privacy?, Robert G. Dixon Jr.
Michigan Law Review
The comments that follow are divided into a brief review, for purposes of perspective, of the elusive nature of "privacy" as developed in American law to date, and an attempted rigorous analysis of the privacy aspects of Griswold. A final section suggests that effectuation of the new constitutional right of marital privacy necessarily or derivatively implies a corollary right of access to birth control information and devices-a right which should have been more clearly articulated by the Court.
Penumbras, Peripheries, Emanations, Things Fundamental And Things Forgotten: The Griswold Case, Paul G. Kauper
Penumbras, Peripheries, Emanations, Things Fundamental And Things Forgotten: The Griswold Case, Paul G. Kauper
Michigan Law Review
The varying theories followed in the several opinions in the Griswold case can be fully understood and appreciated only in the context of the tortuous but fascinating history of the judicial interpretation of the fourteenth amendment.
The Right Of Privacy: Emanations And Intimations, Robert B. Mckay
The Right Of Privacy: Emanations And Intimations, Robert B. Mckay
Michigan Law Review
When Louis Brandeis and Samuel Warren wrote in 1890 of "The Right to Privacy," they sought a means of protecting against unwelcome newspaper attention to social activities in the Warren household. Addressing their argument to the private law of torts, they presumably did not anticipate constitutional protection for other rights under the claim of privacy. Nevertheless, seventy· five years later that concept, now called the "right of privacy," was used by the Supreme Court of the United States in Griswold v. Connecticut to describe a constitutional right. Some members of the Court said the new right was within the "penumbra" …
Justice Joseph Story: A Study Of The Legal Philosophy Of A Jeffersonian Judge, Morgan D. Dowd
Justice Joseph Story: A Study Of The Legal Philosophy Of A Jeffersonian Judge, Morgan D. Dowd
Vanderbilt Law Review
Few studies have sought to explicate the legal philosophy of Joseph Story despite his enormous reputation as scholar, Supreme Court justice and professor at the Harvard Law School. Worse still, there has been little critical analysis of nineteenth-century concepts and statements of the law.' The purpose of this essay, then, is to examine the validity of Story's legal theories and to evaluate his work as a major contributor to American public law. As a result of this study,it is hoped that progress can be made toward a greater understanding of the man, the justice, and his philosophy of law.
Church And State: Cooperative Separatism, Paul G. Kauper
Church And State: Cooperative Separatism, Paul G. Kauper
Michigan Law Review
Nothing is better calculated to stimulate argument, arouse controversy, excite the emotions and even produce intense visceral reactions than a discussion of church-state relations. Always a subject of lively interest, it has received added attention and emphasis in recent months. Perhaps at no time in at least the modem era of American history have the questions of the proper relationship between religion and government been more thoroughly publicized and explored, and the issues more widely debated, than during the period beginning with the presidential campaign of 1960.
The Supreme Court-October 1959 Term, Bernard Schwartz
The Supreme Court-October 1959 Term, Bernard Schwartz
Michigan Law Review
A country's constitutional law is but a reflection of its political, economic, and social life. Not unnaturally, the external conditions of any particular period are bound to have their effects in the legal sphere as well-especially in the field of public law. This is as true of the United States as it is of other countries. From this point of view, the constitutional jurisprudence of the American Supreme Court is only the juristic mirror of the different stages through which American history has passed. 'Our jurisprudence is distinctive,' said Justice Jackson on the 150th anniversary of the Supreme Court, 'in …
Full Faith And Credit To Judgments And Public Acts, Kurt H. Nadelmann
Full Faith And Credit To Judgments And Public Acts, Kurt H. Nadelmann
Michigan Law Review
Interest here is concentrated on full faith and credit for public acts. But what led to insertion of the command respecting public acts cannot be divorced historically from the study of the command of full faith for judgments. The whole field, therefore, has been included in the reexamination. Clarifications obtainable on the "judgments" side, it will be seen, help also on the "public acts" side. On both sides there are historical facts which deserve greater attention than has been hitherto given, and if, as a result, some of the myths surrounding the' Lawyers Clause are exploded, the rethinking may have …