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Articles 1141 - 1156 of 1156
Full-Text Articles in Entire DC Network
The Logic Of Speech And Religion Rights In The Public Workplace, Scott R. Bauries
The Logic Of Speech And Religion Rights In The Public Workplace, Scott R. Bauries
Marquette Benefits and Social Welfare Law Review
No abstract provided.
Temporary Legislation's Finest Hour?: Towards A Proper Model Of Temporary Legislation In Israel שעתן היפה של הוראות השעה?: לקראת מודל ראוי של חקיקה זמנית בישראל, Ittai Bar-Siman-Tov
Temporary Legislation's Finest Hour?: Towards A Proper Model Of Temporary Legislation In Israel שעתן היפה של הוראות השעה?: לקראת מודל ראוי של חקיקה זמנית בישראל, Ittai Bar-Siman-Tov
Dr. Ittai Bar-Siman-Tov
This article discusses a major trend in Israeli legislation in recent years: the rise of temporary legislation in Israel. The first part of the article presents a first-of-its-kind empirical study that reveals that the Knesset is increasingly using temporary legislation, which is referred to in Israel as "temporary provisions." Against this background, the main purpose of the article is normative: to propose a model for proper use of temporary legislation in Israel. After reviewing the normative debate for and against temporary legislation, the article focuses on two central questions: When is it appropriate to make use of temporary legislation; and …
Formal And Informal Amendment Of The United States Constitution, Richard S. Kay
Formal And Informal Amendment Of The United States Constitution, Richard S. Kay
Richard Kay
This is the United States report submitted for the session on Formal and Informal Constitutional Amendment at the Twentieth Congress of the International Academy of Comparative Law to be held in Fukuoka, Japan in July, 2018. The report reviews the rules of Article V of the United States Constitution that sets out the rules for constitutional amendment and it provides a brief chronology of the twenty-eight amendments adopted to date. It notes a number of potential problems of interpretation associated with Article V. The report considers the widely held assumption that the United States Constitution is one of the hardest, …
Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson
Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson
Stephen E Henderson
We finally have a federal ‘test case.’ In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age. The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher. This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious.
As for ambition, the …
The Common-Law Exceptions Clause: Congressional Control Of Supreme Court Appellate Jurisdiction In Light Of British Precedent, Daniel Birk
Daniel Birk
No abstract provided.
Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe
Constitutional Clause Aggregation And The Marijuana Crimes, Scott W. Howe
Scott W. Howe
An important question for our time concerns whether the Constitution could establish a right to engage in certain marijuana-related activities. Several states have now legalized cannabis, within strict limits, for recreational purposes, and that number will grow. Yet, some states will not promptly legalize but, instead, continue to criminalize, or only “decriminalize” in minor ways, and the federal criminalization statutes also will likely survive for a time. There currently is no recognized right under the Constitution to possess, use, cultivate or distribute cannabis for recreational purposes, even in small amounts, and traditional, single-clause arguments for such a right are weak. …
The Property Question.Pdf, William A. Edmundson
The Property Question.Pdf, William A. Edmundson
William A. Edmundson
for presentation at the Property and Political Economy Conference at the Smith Institute,
Chapman University, April 20-21, 2018
The “property question” is the constitutional question whether a society’s basic resources are
to be publicly or privately owned; that is, whether these basic resources are to be available to
private owners, perhaps subject to tax and regulation, or whether instead they are to be
retained in joint public ownership, and managed by democratic processes. James Madison’s
approach represents a case in which prior holdings are taken for granted, and the property
question itself is kept off of the political agenda. By …
Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez
Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez
Stephen E Henderson
In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement’s collection of information can be cause for “anxiety,” meriting constitutional protection, even if subsequent uses of the information are tightly restricted. This change is significant. While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing.
Beyond offering a careful reading of Birchfield, this Article has two goals. …
The Supreme Court's Political Docket: How Ideology And The Chief Justice Control The Court's Agenda And Shape Law, Benjamin B. Johnson
The Supreme Court's Political Docket: How Ideology And The Chief Justice Control The Court's Agenda And Shape Law, Benjamin B. Johnson
Benjamin Johnson
The Supreme Court is unique among federal courts in that it chooses - using the writ of certiotari - which cases it will decide. Justice Brennan once noted that this discretionary power is "second to none in importance." This article examines the institutional politics behind this certiorari process. Specifically, it uses an original dataset of Justices' agenda-setting votes from 1986 to 1993 to show how Justices use the rules that govern certiorari to pursue ideological goals. In addition, and in contrast to existing qualitative accounts, the data suggest some Justices queue off of the Chief Justice's vote giving the Chief's …
The [̶T̶A̶K̶I̶N̶G̶S̶] Keepings Clause: An Analysis Of Framing Effects From Labeling Constitutional Rights, Donald J. Kochan
The [̶T̶A̶K̶I̶N̶G̶S̶] Keepings Clause: An Analysis Of Framing Effects From Labeling Constitutional Rights, Donald J. Kochan
Donald J. Kochan
Did you know that the “Takings Clause” was not called the “Takings Clause” by any court before 1955? That was the first time that any court of any jurisdiction referred to the provisions regarding takings of private property in either the federal or state constitutions under the label “Taking Clause.” Did you know that justices of the U.S. Supreme Court did not use that moniker “Taking Clause” in any opinion before 1978? Given this history, the phrase “takings clause,” whether an apt descriptor or not, certainly cannot be justified as the dominant way to refer to these provisions by contemporaneous …
Reasoning Through Clashes Between Religion And Equality: Case Law, Skeptics, And Social Coherence, Michael A. Helfand
Reasoning Through Clashes Between Religion And Equality: Case Law, Skeptics, And Social Coherence, Michael A. Helfand
Michael A Helfand
A review of Nelson Tebbe's new book, Religious Freedom in An Egalitarian Age (Harvard University Press, 2017). Forthcoming 2018.
When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand
When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand
Michael A Helfand
In this chapter, I explore how judges—and, more generally, U.S. courts—deal with legal disputes when they must consider not only laws and facts, but also religion, or maybe even more precisely, theology. Indeed, in a wide range of circumstances, judges are confronted with cases where the outcome in some way or another requires them to issue a decision that is predicated, to varying to degrees, on a theological question upon which there is some debate. While in American law the ostensibly simple answer to this question is simply that the Constitution prohibits courts from adjudicating religious questions, the reality is …
Implied Consent To Religious Institutions: A Primer And A Defense, Michael A. Helfand
Implied Consent To Religious Institutions: A Primer And A Defense, Michael A. Helfand
Michael A Helfand
One of the recent fault lines over religious liberty is the scope of protections afforded religiously motivated institutions and corporations. Courts and scholars all seem to agree that such religious institutions deserve some degree of protection. But there remains significant debate over the principles that should guide judicial decisions addressing the circumstances in which religiously motivated institutions should, and in which circumstances they should not, receive the law’s protection.
In this Article, I expound, and defend, my proposed “implied consent” framework for addressing religious institutional claims. Such a framework grounds the authority of religious institutions not in a degree of …
Sexual Orientation And Gender Identity Discrimination, Holning Lau
Sexual Orientation And Gender Identity Discrimination, Holning Lau
Holning Lau
Laws concerning sexual orientation and gender identity (SOGI) have undergone a sea change. Still, legal protections against SOGI discrimination vary widely around the world. As jurisdictions wrestle with whether and how to protect people against SOGI discrimination, several conceptual questions emerge. This Brill volume reviews and discusses legal developments and scholarly commentary concerning these questions. Specifically, this volume examines the following five questions: (1) Is SOGI discrimination encompassed by existing laws prohibiting discrimination based on sex? (2) Should sexual orientation and gender identity be considered protected categories in and of themselves? (3) Is there a standard sequence of steps for …
From Loving To Obergefell: Elevating The Significance Of Discriminatory Effects, Holning Lau
From Loving To Obergefell: Elevating The Significance Of Discriminatory Effects, Holning Lau
Holning Lau
Loving v. Virginia and Obergefell v. Hodges are both landmark Supreme Court cases that advanced marriage equality. In Obergefell, the Court invalidated bans on same-sex marriage by building upon precedent it set nearly five decades earlier in Loving, which declared antimiscegenation laws unconstitutional. Indeed, commentators often describe Loving as an important precursor to Obergefell. Yet Obergefell’s reasoning deviated from that of Loving. The differences between the two cases are all too often overlooked. This Essay thus seeks to address this blind spot by drawing attention to a critical distinction: Loving and Obergefell differ in their …
Introduction To Constraining The Executive, Tom Campbell
Introduction To Constraining The Executive, Tom Campbell
Tom Campbell
The essays in this symposium illuminate aspects of the task of keeping the executive branch within its constitutionally appointed boundaries. The symposium was conceived before the 2016 elections, so its plan was not directed toward the current president. Nevertheless, it is inescapable that, writing after those elections, the authors took recent developments into account. The lessons to be learned from these essays, however, have more permanent application than simply for the immediate present. In this introduction, I review the articles of the symposium hoping to highlight the valuable contribution to separation of powers jurisprudence that each offers for the long …