School of Law
Total Page：16
File Type：pdf, Size：1020Kb
Load more
Recommended publications
-
The Takings Jurisprudence of the Warren Court: a Constitutional Siesta
University of Chicago Law School Chicago Unbound Journal Articles Faculty Scholarship 1996 The Takings Jurisprudence of the Warren Court: A Constitutional Siesta Richard A. Epstein Follow this and additional works at: https://chicagounbound.uchicago.edu/journal_articles Part of the Law Commons Recommended Citation Richard A. Epstein, "The Takings Jurisprudence of the Warren Court: A Constitutional Siesta," 31 Tulsa Law Journal 643 (1996). This Article is brought to you for free and open access by the Faculty Scholarship at Chicago Unbound. It has been accepted for inclusion in Journal Articles by an authorized administrator of Chicago Unbound. For more information, please contact [email protected]. TULSA LAW JOURNAL Volume 31 Summer 1996 Number 4 THE TAKINGS JURISPRUDENCE OF THE WARREN COURT: A CONSTITUTIONAL SIESTA* Richard A. Epsteint I. EBB TIDE FOR PROPERTY RIGHTS ...................... 644 II. A CRITIQUE OF THE WARREN COURT DECISIONS ...... 650 A. The Prima Facie Case: A Taking of Private Property ............................................ 651 1. Water ........................................... 651 2. Overflight Easements ........................... 656 3. Lien Rights ..................................... 658 B. General Regulations................................. 660 1. Prohibition on Use ............................. 660 2. Contract Regulation ............................ 662 3. Rate of Return Regulation ..................... 664 4. Civil Rights Cases .............................. 666 III. POLICE POWER JUSTIFICATIONS -
<I>United States V. Morrison</I>
University of Pennsylvania Carey Law School Penn Law: Legal Scholarship Repository Faculty Scholarship at Penn Law 2015 Bait and Switch: Why United States v. Morrison is Wrong about Section Five Kermit Roosevelt III University of Pennsylvania Carey Law School Follow this and additional works at: https://scholarship.law.upenn.edu/faculty_scholarship Part of the Civil Rights and Discrimination Commons, Constitutional Law Commons, Courts Commons, Fourteenth Amendment Commons, Jurisprudence Commons, and the Public Law and Legal Theory Commons Repository Citation Roosevelt, Kermit III, "Bait and Switch: Why United States v. Morrison is Wrong about Section Five" (2015). Faculty Scholarship at Penn Law. 748. https://scholarship.law.upenn.edu/faculty_scholarship/748 This Article is brought to you for free and open access by Penn Law: Legal Scholarship Repository. It has been accepted for inclusion in Faculty Scholarship at Penn Law by an authorized administrator of Penn Law: Legal Scholarship Repository. For more information, please contact [email protected]. \\jciprod01\productn\C\CRN\100-3\CRN302.txt unknown Seq: 1 18-MAR-15 8:28 BAIT AND SWITCH: WHY UNITED STATES V. MORRISON IS WRONG ABOUT SECTION 5 Kermit Roosevelt III† In United States v. Morrison, the Supreme Court announced the rule that the Section 5 power cannot be used to regulate private individuals. This is one of the most meaningful and, thus far, durable constraints that the Court has placed on federal power. It is the more surprising, then, that it turns out to be based on essentially nothing at all. The Morrison Court asserted that its rule was derived by—indeed, “controlled by”—precedent, but a closer reading of the Reconstruction-era decisions it cites shows that this is simply not the case. -
David E. Bernstein, George Mason University School of Law
REVISITING YICK WO V. HOPKINS David E. Bernstein, George Mason University School of Law Illinois Law Review, Forthcoming George Mason University Law and Economics Research Paper Series 08-55 This paper can be downloaded without charge from the Social Science Research Network at http://ssrn.com/abstract_id=12629230 BERNSTEIN.DOC 8/25/2008 10:06:52 AM REVISITING YICK WO V. HOPKINS David E. Bernstein* Professor Jack Chin explains in his provocative article1 that Yick Wo v. Hopkins2—an ancient case with a narrow holding—has been cited as supporting modern constitutional doctrines that the Yick Wo Court did not even consider, much less adopt. Yick Wo was not a radical civil rights case decades ahead of its time. Rather, as Professor Chin con- cludes, “Yick Wo is entirely consistent with the other jurisprudence of the era: tolerant of racial classifications, sometimes protective of particu- lar fundamental rights, willing to police state interference with matters it regards as exclusively federal.”3 I disagree with Professor Chin, however, about some important in- terpretive details. In particular: • Professor Chin claims that Yick Wo was fundamentally a “treaty case,” and did not extend constitutional rights to Chinese alien residents of the United States. In fact, Yick Wo explicitly stated that the Chinese, as lawful residents of the United States, were entitled to the protections of the Fourteenth Amendment (and the 1866 Civil Rights Act),4 independent of the United States’s treaty with China. Moreover, the Court ultimately held that the laundry ordinances as enforced were unconstitutional, not that they violated treaty provisions; • Yick Wo was not, as Professor Chin alleges, an early example of Lochnerian “substantive due process” jurisprudence, but was, at best, a distant cousin to the Lochner line of cases; • Professor Chin is correct that Yick Wo was not fundamentally a “race case,” but he neglects the fact that the decision did have a * Professor, George Mason University School of Law. -
Supreme Court Decisions
The Worst Supreme 10Court Decisions By M. Kelly Tillery n April 9, 2010, just 11 days before his 90th birthday, U.S. Supreme Court Justice John Paul Stevens gave notice of his O retirement which will allow President Obama to appoint a second Supreme Court Justice less than two years into his first term. The nominee, Solicitor General Elena Kagan, will certainly endure lengthy, probing and sometimes inane examination in Senate confirmation hearings. Since nominees are often asked about past Supreme Court decisions and, if confirmed, will be asked to wrestle with monumental legal issues, perhaps an examination of how previous Supreme Court justices sometimes got it so wrong and did so much damage might be valuable for all. Only111humanbeingshaveservedonthenation’shighest U.S.113(1973)[legalizationofabortion]orKelo v. City of courtsinceitscreationonSept.24,1789bythefirstJudiciary New London545U.S.469(2005)[eminentdomaintakingfor Act.One-hundrednine(98percent)ofthoseunelectedjurists privatedeveloper].Afterselectionbaseduponthesecriteria have been white, only twoAfrican-American.All men (97 of my own design, I discovered, somewhat to my surprise, percent),exceptthreewomen. AllChristian(93.6percent), an interesting and disturbing common theme. Each one, as exceptsevenJews. shallbeseen,involvedtheshameful,disdainfultreatmentby From its first case, the uneventful and purely procedural thepowerfulofminoritiesandtheirrights.Andineach,the West v. Barnes,2U.S.401(1791),toitsmostrecentproviding courtsidedwiththepowerful,consigningtheminorityoften FirstAmendmentprotectionfor“crushvideos”(ifyouhave -
An Established Leader in Legal Education Robert R
An Established Leader In Legal Education Robert R. Bond, First Graduate, Class of 1943 “Although N. C. Central University School of Law has had to struggle through some difficult periods in its seventy-year history, the School of Law has emerged as a significant contributor to legal education and the legal profession in North Carolina.” Sarah Parker Chief Justice North Carolina State Supreme Court “Central’s success is a tribute to its dedicated faculty and to its graduates who have become influential practitioners, successful politicians and respected members of the judiciary in North Carolina.” Irvin W. Hankins III Past President North Carolina State Bar The NCCU School of Law would like to thank Michael Williford ‘83 and Harry C. Brown Sr. ‘76 for making this publication possible. - Joyvan Malbon '09 - Professor James P. Beckwith, Jr. North Carolina Central University SCHOOL OF LAW OUR MISSION The mission of the North Carolina Central University School of Law is to provide a challenging and broad-based educational program designed to stimulate intellectual inquiry of the highest order, and to foster in each student a deep sense of professional responsibility and personal integrity so as to produce competent and socially responsible members of the legal profession. 2 NCCU SCHOOL OF LAW: SO FAR th 70 Anniversary TABLE OF CONTENTS 70TH ANNIVERSARY EDITION 4 PORTRAITS OF THE DEANS 2009 NORTH CAROLINA CENTRAL UNIVERSITY 6 ROBERT BOND ‘43: The Genesis of North Carolina SCHOOL OF LAW Central University’s School of Law DEAN: 8 THE STARTING POINT RAYMOND C. PIERCE EDITOR: 12 THE EARLY YEARS MARCIA R. -
United States Court of Appeals for the Sixth Circuit
No. 14-5297 IN THE United States Court of Appeals for the Sixth Circuit VALERIA TANCO, ET AL., Plaintiffs-Appellees, v. WILLIAM EDWARD “BILL” HASLAM, ET AL., Defendants-Appellants. On Appeal from the United States District Court for the Middle District of Tennessee, No. 3:13-cv-01159 (Hon. Aleta A. Trauger) BRIEF AMICI CURIAE OF CATO INSTITUTE AND CONSTITUTIONAL ACCOUNTABILITY CENTER IN SUPPORT OF PLAINTIFFS-APPELLEES AND AFFIRMANCE Elizabeth B. Wydra* Ilya Shapiro Douglas T. Kendall CATO INSTITUTE Judith E. Schaeffer 1000 Massachusetts Ave., NW David H. Gans Washington, DC 20001 CONSTITUTIONAL (202) 842-0200 ACCOUNTABILITY CENTER 1200 18th St., NW, Ste. 501 Washington, DC 20036 (202) 296-6889 [email protected] *Counsel of Record Counsel for Amici Curiae CORPORATE DISCLOSURE STATEMENT Pursuant to Rule 26.1 of the Federal Rules of Appellate Procedure, amici state that neither organization is a publicly-held corporation, nor do they issue stock or have parent corporations. Amici are non-profit 501(c)(3) organizations. i TABLE OF CONTENTS Corporate Disclosure Statement .................................................................. i Table of Contents ......................................................................................... ii Table of Authorities .................................................................................... iii Interest of the Amici Curiae ....................................................................... 1 Summary of Argument ............................................................................... -
Originalism and Same-Sex Marriage
ARTICLES Originalism and Same-Sex Marriage STEVEN G. CALABRESI* & HANNAH M. BEGLEY** This article examines the original meaning of the equal- ity guarantee in American constitutional law. It looks are the seventeenth, eighteenth, and nineteenth century roots of the modern doctrine, and it concludes that the Fourteenth Amendment bans the Hindu Caste system, European feudal- ism, the Black Codes, the Jim Crow laws, and the common law's denial to women of equal civil rights to those held by men. It then considers the constitutionality of bans on same sex marriage from an Originalist perspective, and it con- cludes that State laws banning same sex marriage violate the Fourteenth Amendment. INTRODUCTION .............................................................................648 I. HISTORY OF CONSTITUTIONAL EQUALITY GUARANTEES ...........654 II. SEXUAL ORIENTATION .............................................................699 INTRODUCTION One of the most important public civil rights issues of the mod- ern era is whether the Fourteenth Amendment to the U.S. Constitu- tion, as originally understood and modified by reading it through the lens of the Nineteenth Amendment, protects a right to same-sex * Clayton J. & Henry R. Barber Professor of Law, Northwestern Pritzker School of Law; Visiting Professor of Fall 2013-2015 Yale University; Visiting Scholar, 2015-2016 Brown University. ** Brown University, Class of 2015. 648 2016] ORIGINALISM AND SAME-SEX MARRIAGE 649 marriage. We believe it does, and we seek in this article to briefly explain why we reach the conclusion we do. Further, we hope to add additional academic support for Justice Kennedy’s recent majority opinion in Obergefell v. Hodges,1 which we found to be lacking in originalist justification. -
Equal Protection Minus Strict Scrutiny Plus Benign Classification Equals What ? Equality of Opportunity
Pace Law Review Volume 11 Issue 2 Winter 1991 Article 1 January 1991 Equal Protection Minus Strict Scrutiny Plus Benign Classification Equals What ? Equality of Opportunity Johnny C. Parker Follow this and additional works at: https://digitalcommons.pace.edu/plr Recommended Citation Johnny C. Parker, Equal Protection Minus Strict Scrutiny Plus Benign Classification qualsE What ? Equality of Opportunity, 11 Pace L. Rev. 213 (1991) Available at: https://digitalcommons.pace.edu/plr/vol11/iss2/1 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact [email protected]. PACE LAW REVIEW Volume 11 Winter 1991 Number 2 Articles Equal Protection minus Strict Scrutiny plus Benign Classification Equals What? Equality of Opportunity Johnny C. Parkert I. Introduction Since the signing of the Declaration of Independence no so- cial issue has caused more concern and controversy than that of race.1 Voluminous studies document the sociological and eco- nomic impact which ethnic and racial prejudices have played in t Associate Professor of Law, University of Tulsa School of Law; B.A., 1982, Univer- sity of Mississippi; J.D., 1984, University of Mississippi School of Law; LL.M., 1987, Columbia University School of Law. 1. Justice Taney in 1856 observed that the statement: "We hold these truths to be self evident: that all men are created equal; that they are endowed by their Creator with certain unalienable rights; that among them are life, liberty, and the pursuit of happiness . -
Legislation Especially for the Negro?
Wycoff: LEGISLATION ESPECIALLY FOR THE NEGRO? THE BLACK PRESS RESPONDS TO LEGISLATION ESPECIALLY FOR THE NEGRO? THE BLACK PRESS RESPONDS TO EARLY SUPREME COURT CIVIL RIGHTS DECISIONS David Wycofft I. INTRODUCTION ....................... 2. We object to being put on a level with II. THE FOURTEENTH AND FIFTEENTH them ............................. 68 AMENDMENTS BECOME BUT HIDEOUS VII. CONCLUSION .......................... 71 M O CKERIES ............................ III. EARNESTLY DISCUSSING THE I. INTRODUCTION DECISIO NS ............................. The years 1873-1883 form perhaps the most im- IV. FEDERALISM ........................... portant decade in United States constitutional history.' A. PRESERVING THE MAIN FEATURES OF In the course of deciding a steady stream of cases in- THE GENERAL SYSTEM ................ volving the Thirteenth, Fourteenth and Fifteenth B. THE CAUSE OF ALL OUR WOES ....... amendments, 2 the Supreme Court laid the basis for the V. CLASS LEGISLATION ................... next century of the constitutional law of civil rights and VI. CLASS LEGISLATION IN THE BLACK civil liberties. Unfortunately, it was a "dreadful dec- PR E SS .................................. ade." In decision after decision, the Court struck down A. THE BANE OF THE NEGRO Is federal laws designed to protect civil rights and civil lib- LEGISLATION ESPECIALLY FOR THE erties, and devitalized the new amendments. N EGRO .............................. These early civil rights decisions of the United B. The Negro Is A Citizen And Must Be States Supreme Court provoked a significant response Protected ............................ in the African American community. Discussion of the 1. The same rights as are enjoyed by other decisions, especially the Civil Rights Cases (1883), was 4a people ............................ major theme in the African American press of the time. t Law Clerk, Honorable James T. -
14Th Amendment US Constitution
FOURTEENTH AMENDMENT RIGHTS GUARANTEED PRIVILEGES AND IMMUNITIES OF CITIZENSHIP, DUE PROCESS AND EQUAL PROTECTION CONTENTS Page Section 1. Rights Guaranteed ................................................................................................... 1565 Citizens of the United States ............................................................................................ 1565 Privileges and Immunities ................................................................................................. 1568 Due Process of Law ............................................................................................................ 1572 The Development of Substantive Due Process .......................................................... 1572 ``Persons'' Defined ................................................................................................. 1578 Police Power Defined and Limited ...................................................................... 1579 ``Liberty'' ................................................................................................................ 1581 Liberty of Contract ...................................................................................................... 1581 Regulatory Labor Laws Generally ...................................................................... 1581 Laws Regulating Hours of Labor ........................................................................ 1586 Laws Regulating Labor in Mines ....................................................................... -
The Constitution in the Supreme Court: 1921-1930
THE CONSTITUTION IN THE SUPREME COURT: 1921-1930 DAVID P. CURRIE* The selection of William Howard Taft to succeed Edward D. White as Chief Justice in 1921 was followed by three additional appointments in the next two years: George Sutherland, Pierce Butler, and Edward T. Sanford replaced William R. Day, Mahlon Pitney, and John H. Clarke. The upshot was something of a reign of terror for state and federal legislation.' White himself had been no great supporter of progressive legislation, and neither Day nor Pitney was in later terms a flaming liberal. The last two, however, had frequently voted with Holmes, Brandeis, and Clarke to sustain social legislation against due process attacks. Sutherland, But- ler, and Sanford, like Taft, tended to cast their lot with Van Devanter, McReynolds, and McKenna, who had been frequent dissenters in sub- stantive due process cases before 1921; thus a vocal minority became a solid majority within a two-year period. The replacement of McKenna by Harlan F. Stone in 1925 merely increased the number of regular dis- senters from two to three.2 * Harry N. Wyatt Professor of Law, University of Chicago. Thanks to Mary Beth Gose for managing the computer; to Nelson Lund, David Vandermeulen, Steve Rowland, and Richard Cray Donaldson for useful seminar papers; and to Albert Alschuler, Frank Easterbrook, Richard Helm- holz, Richard Posner, Carol Rose, Geoffrey Stone, Cass Sunstein, and William Van Alstyne for helpful criticism. 1. See Brown, Due Process of Law, Police Power, and the Supreme Court, 40 HARv. L. REV. 943, 944 (1927) ("[I]n the six years since 1920 the Supreme Court has declared social and economic legislation unconstitutional under the due process clauses of either the Fifth or the Fourteenth Amendment in more cases than in the entire fifty-two previous years ... -
Frank W. Ballance, Jr. 1942–
FORMER MEMBERS H 1971–2007 ������������������������������������������������������������������������ Frank W. Ballance, Jr. 1942– UNITED STATES REPRESENTATIVE H 2003–2004 DEMOCRAT FROM NORTH CAROLINA he first African American elected to the state and, after switching to the Republican Party, for a seat on Tlegislature from eastern North Carolina since the the Warren County Commission in 1974. Ballance soon Reconstruction Era, Frank Ballance won election to the returned to the Democratic Party “to my people, where U.S. House in 2002, succeeding Representative Eva my votes are.”2 In 1982, Ballance became the first black Clayton in a district that included much of coastal North in roughly a century to be elected to the statehouse from Carolina. During an 18-month tenure in the House that the eastern section of the state, defeating a white lawyer was abbreviated by health problems and a probe into his to represent a newly redrawn district. A local newspaper management of a nonprofit foundation, Ballance served on published the story under the headline “Free at Last.” the Agriculture Committee—an important assignment for Ballance recalled, “Among the black community, there his predominantly rural, farm-based constituency. was great excitement that a new day had dawned and Frank Winston Ballance, Jr., was born in Windsor, things would be different.”3 He served from 1983 to 1987 North Carolina, on February 15, 1942, to Frank Winston in the North Carolina state house of representatives. He and Alice Eason Ballance. His mother, noted one political was unsuccessful in his bid for a nomination to the North activist in eastern North Carolina, was the “political wheel” Carolina senate in 1986 but was elected two years later of Bertie County, organizing drives for voter registration and served in the upper chamber from 1989 to 2002.