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Articles 1 - 30 of 211
Full-Text Articles in Entire DC Network
Zonstien V. Judge-Advocate General, Aharon Barak, Dorit Beinisch, Ayala Procaccia
Zonstien V. Judge-Advocate General, Aharon Barak, Dorit Beinisch, Ayala Procaccia
Translated Opinions
Facts: Petitioners are reserve soldiers in the IDF, who refused to serve in the Administered Territories. They were subject to disciplinary proceedings, and were sentenced to their respective punishments. The subject of this petition is the decision of the Minister of Defense not to grant the petitioners an exemption from military reserve service.
Held: The Supreme Court held that exemptions from military service may be granted according to the discretion of the Minister of Defense, pursuant to section 26 of the Defense Service Law (Consolidated Version)-1986. The Court held that the question of granting exemptions to military service based on …
Yassin V. Ben-David, Aharon Barak, Dorit Beinisch, Izhak Englard
Yassin V. Ben-David, Aharon Barak, Dorit Beinisch, Izhak Englard
Translated Opinions
Facts: In the context of IDF operations against the terrorist infrastructure in areas of the Palestinian Authority (“Operation Defensive Wall”), thousands of suspects were detained. Due to overcrowding, some of these petitioners were transferred to the Kziot detention facility in the Negev region. Most of the detainees were detained pursuant to administrative detention orders. This petition concerns the detention conditions of these detainees.
Held: The Supreme Court held that the presumption of innocence should be applied to the detainees, as they are being held under administrative detention orders, and have neither been tried nor convicted. The Court further held that …
The Anti-Monopoly Origins Of The Patent And Copyright Clause, Tyler T. Ochoa, Mark Rose
The Anti-Monopoly Origins Of The Patent And Copyright Clause, Tyler T. Ochoa, Mark Rose
Faculty Publications
The British experience with patents and copyrights prior to 1787 is instructive as to the context within which the Framers drafted the Patent and Copyright Clause. The 1624 Statute of Monopolies, intended to curb royal abuse of monopoly privileges, restricted patents for new inventions to a specified term of years. The Stationers' Company, a Crown-chartered guild of London booksellers, continued to hold a monopoly on publishing, and to enforce censorship laws, until 1695. During this time, individual titles were treated as perpetual properties held by booksellers. In 1710, however, the Statute of Anne broke up these monopolies by imposing strict …
Are Police Free To Disregard Miranda?, Steven D. Clymer
Are Police Free To Disregard Miranda?, Steven D. Clymer
Cornell Law Faculty Publications
The First 'Establishment' Clause: Article Vii And The Post-Constitutional Confederation, Gary S. Lawson, Guy I. Seidman
The First 'Establishment' Clause: Article Vii And The Post-Constitutional Confederation, Gary S. Lawson, Guy I. Seidman
Faculty Scholarship
It is a great pleasure for academics to realize that fellow scholars sometimes read their work and take it seriously. We are genuinely flattered that Vasan Kesavan has chosen to comment on our article, When Did the Constitution Become Law?,1 and has done so with the intellectual rigor and generosity of spirit that characterizes his prodigious scholarship. 2 We are grateful to Mr. Kesavan for engaging us and grateful to the Notre Dame Law Review for accommodating the dialogue.
Constitutional Dignity And The Criminal Law, James E. Baker
Constitutional Dignity And The Criminal Law, James E. Baker
Georgetown Law Faculty Publications and Other Works
Criminal law is important because it helps to define who we are as a constitutional democracy. There is much that distinguishes our form of government from others, but certainly much of that distinction is found in the Bill of Rights and in two simple words: due process. All of which help to affirm the value and sanctity of the individual in our society. Broadly then, criminal law helps to define who we are as a nation that values both order and liberty.
That is what many of the greatest judicial debates are about, like those involving Holmes, Hand, Jackson, and …
An Institutional Approach To Legal Indeterminacy, Michael C. Dorf
An Institutional Approach To Legal Indeterminacy, Michael C. Dorf
Cornell Law Faculty Working Papers
For over a generation, academic jurisprudence and constitutional theory have attempted to reconcile, on the one hand, the rule of law and the Constitution's fundamentality with, on the other hand, the fact that legal and constitutional rules frequently do not produce determinate answers to concrete controversies. The approach of radical democrats who would abandon judicial review is unacceptable to all those who believe that some judicially enforceable limits on politics are needed to prevent majoritarian tyranny. At the same time, however, constitutional theories that attempt to justify judicial review have limited utility; at best they strike a compromise between the …
The War On Terrorism And The Constitution, Michael I. Meyerson
The War On Terrorism And The Constitution, Michael I. Meyerson
All Faculty Scholarship
Discussion of civil liberties during wartime often omit the fact that there can be no meaningful liberty at all if our homes and offices are bombed or our loved ones are killed or injured by acts of terror. The Government must be given the tools necessary to accomplish its vital mission. The first priority must be to win the war against terrorism. There are, however, other priorities. The United States, in its just battle for freedom, must ensure that freedom is preserved during that battle as well. Moreover, care must be taken so that an exaggerated cry of “emergency” is …
“Exceedingly Vexed And Difficult”: Games And The First Amendment, Michael T. Morley
“Exceedingly Vexed And Difficult”: Games And The First Amendment, Michael T. Morley
Scholarly Publications
No abstract provided.
Copyright Preemption And The Right Of Publicity, Jennifer E. Rothman
Copyright Preemption And The Right Of Publicity, Jennifer E. Rothman
All Faculty Scholarship
This article addresses the conflict between an ever-expanding right of publicity and the federally guaranteed rights provided by copyright law. This conflict is highlighted in the Wendt v. Host International case in which the actors George Wendt and John Ratzenberger from Cheers used the right of publicity to prevent the show's creators from licensing the use of the Norm and Cliff characters in the decor of a chain of airport bars. Even though the licensing of the characters was explicitly allowed under copyright law, the Ninth Circuit held that the right of publicity prevented the creators from doing so. Similarly, …
Barake V. Minister Of Defense, Aharon Barak, Dorit Beinisch, Theodor Or
Barake V. Minister Of Defense, Aharon Barak, Dorit Beinisch, Theodor Or
Translated Opinions
Facts: This petition was submitted during IDF operations against the terrorist infrastructure in the areas of the Palestinian Authority. (“Operation Defensive Wall.”) Petitioners requested that the IDF be ordered to cease checking and removing the bodies of Palestinians that had been killed during the course of warfare in the Jenin refugee camp. Petitioners also requested that the IDF be ordered not to bury those ascertained to be terrorists in the Jordan valley cemetery. Petitioners request that the tasks of identifying and removing the bodies be the responsibility of medical teams and the Red Cross. Petitioners also request that the families …
Winking At Jubelirer’S Maneuvers, Bruce Ledewitz
Winking At Jubelirer’S Maneuvers, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
Hate Speech In The Constitutional Law Of The United States, William B. Fisch
Hate Speech In The Constitutional Law Of The United States, William B. Fisch
Faculty Publications
Our general reporter, Professor Pizzorusso, has given us “incitement to hatred” - primarily against a group of persons defined in terms of race, ethnicity, national origin, gender, religion, sexual orientation, and the like--as the working definition of “hate speech”, and asks to what extent such speech is constitutionally protected in the reporting countries. The United States of America are known at least in recent times for providing exceptionally broad protection for otherwise objectionable speech and expression, and hate speech is understood to be one of the areas in which they have positioned themselves further out on the speech-protective end of …
Campaign Finance Disclosure And Section 527 Of The Code: A Look At The District Court's Opinion In National Federation Of Republican Assemblies, Donald B. Tobin
Campaign Finance Disclosure And Section 527 Of The Code: A Look At The District Court's Opinion In National Federation Of Republican Assemblies, Donald B. Tobin
Faculty Scholarship
This report examines the decision of the U.S. District Court for the Southern District of Alabama in National Federation of Republican Assemblies v. United States, which dealt with section 527 political organizations.
The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley
The Law Of Nations And The Offenses Clause Of The Constitution: A Defense Of Federalism, Michael T. Morley
Scholarly Publications
No abstract provided.
Misclassifying Monetary Restitution, Colleen P. Murphy
Misclassifying Monetary Restitution, Colleen P. Murphy
Law Faculty Scholarship
No abstract provided.
The Federalism-Rights Nexus: Explaining Why Senate Democrats Tolerate Rehnquist Court Decision Making But Not The Rehnquist Court, Neal Devins
Faculty Publications
No abstract provided.
Equal Educational Opportunity By The Numbers: The Warren Court's Empirical Legacy, Michael Heise
Equal Educational Opportunity By The Numbers: The Warren Court's Empirical Legacy, Michael Heise
Cornell Law Faculty Publications
By drawing upon empirical social science evidence to inform a core tenet of the Court's understanding of equal education the Warren Court established one of its enduring - if under-appreciated - legacies: The increased empiricization of the equal educational opportunity doctrine. All three major subsequent legal efforts to restructure public schools and equalize educational opportunities among students - post-Brown school desegregation, finance, and choice litigation - evidence an increasingly empiricized equal educational opportunity doctrine. If my central claim is correct, it becomes important to consider the consequences of this development. I consider two in this Article and find both benefits …
What Is A Search? Two Conceptual Flaws In Fourth Amendment Doctine And Some Hints Of A Remedy, Sherry F. Colb
What Is A Search? Two Conceptual Flaws In Fourth Amendment Doctine And Some Hints Of A Remedy, Sherry F. Colb
Cornell Law Faculty Publications
No abstract provided.
A Fourth Amendment "Search" In The Age Of Technology: Postmodern Perspectives, Kathryn R. Urbonya
A Fourth Amendment "Search" In The Age Of Technology: Postmodern Perspectives, Kathryn R. Urbonya
Faculty Publications
No abstract provided.
To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne
To What Extent Does The Power Of Government To Determine The Boundaries And Conditions Of Lawful Commerce Permit Government To Declare Who May Advertise And Who May Not?, William W. Van Alstyne
Faculty Publications
No abstract provided.
Race And The Development Of Law In America: Introduction To The Symposium, Robert A. Sedler
Race And The Development Of Law In America: Introduction To The Symposium, Robert A. Sedler
Law Faculty Research Publications
No abstract provided.
Federal Judicial Selection As War, Part Three: The Role Of Ideology, Michael J. Gerhardt
Federal Judicial Selection As War, Part Three: The Role Of Ideology, Michael J. Gerhardt
Faculty Publications
No abstract provided.
Rehnquist's Vietnam: Constitutional Separatism And The Stealth Advance Of Martial Law, Diane H. Mazur
Rehnquist's Vietnam: Constitutional Separatism And The Stealth Advance Of Martial Law, Diane H. Mazur
UF Law Faculty Publications
This Article argues that judicial deference to the military, at least as the principle is understood in contemporary decisions of the Court, is surprisingly recent and not at all constitutionally established. In fact, this deference departs from constitutional text and from a line of Supreme Court precedent concerning civilian-military relations extending back before the Civil War. Broad judicial deference to military discretion is only a creation of the post-Vietnam, all-volunteer military and, more specifically, only a creation of one single Justice of the Supreme Court, William H. Rehnquist.
In Greer v. Spock, First Amendment values were displaced narrowly in the …
Choice Programs And Market-Based Separationism, Paul E. Salamanca
Choice Programs And Market-Based Separationism, Paul E. Salamanca
Law Faculty Scholarly Articles
The Supreme Court's recent decision in Zelman v. Simmons-Harris appears to clear the way for a wide variety of educational and charitable choice plans. In this decision, the Court upheld against Establishment Cause Challenge a formally neutral school choice program that encompassed a wide variety of options in the public and private sector, including private sectarian schools. The Court reasoned that, when the government makes aid available to a broad class of recipients without regard to their religious or non-religious affiliation, and when the recipients have a genuine choice as to whether to obtain that aid from a religious or …
Section 7: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School
Section 7: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School
Supreme Court Preview
No abstract provided.
Ajuri V. Idf Commander In West Bank, Aharon Barak, Shlomo Levin, Theodor Or, Eliahu Mazza, Mishael Cheshin, Tova Strasberg-Cohen, Dalia Dorner, Dorit Beinisch, Jacob Turkel
Ajuri V. Idf Commander In West Bank, Aharon Barak, Shlomo Levin, Theodor Or, Eliahu Mazza, Mishael Cheshin, Tova Strasberg-Cohen, Dalia Dorner, Dorit Beinisch, Jacob Turkel
Translated Opinions
Facts: The IDF Commander in Judaea and Samaria made orders requiring three residents of Judaea and Samaria to live, for the next two years, in the Gaza Strip. The orders were approved by the Appeals Board. The three residents of Judaea and Samaria petitioned the High Court of Justice against the orders.
The petitioners argued that the orders were contrary to international law. In particular the petitioners argued that Judaea and Samaria should be regarded as a different belligerent occupation from the one in the Gaza Strip, and therefore the orders amounted to a deportation from one territory to another, …
The Rehnquist Court, Structural Due Process, And Semisubstantive Constitutional Review, Dan T. Coenen
The Rehnquist Court, Structural Due Process, And Semisubstantive Constitutional Review, Dan T. Coenen
Scholarly Works
Semisubstantive review, as I use that label, entails four key features. First, the subject matter of judicial inquiry is not the process applied in adjudicating a discrete dispute; rather, the matter at hand is the constitutionality of a statute or other generalized expression of legal policy. Second, some procedural omission by the lawmaker -- rather than an incurably substantive flaw in the end product of its work -- lays the groundwork for a judicial intervention that invalidates the challenged rule or negates how that rule otherwise would operate. It may be, for example, that a federal statute read as a …
Equal Protection Incorporation, Michael C. Dorf
Equal Protection Incorporation, Michael C. Dorf
Cornell Law Faculty Publications
In order to preserve a broad field of play for legislative and administrative action, courts do not subject most state action to exacting scrutiny under the Equal Protection Clause. For half a century, the principal exception has consisted of so-called suspect and semi-suspect classifications. Although the Supreme Court has articulated criteria for identifying such classifications, standing alone, none of these criteria is satisfactory, nor has the Court found any principled means of combining them. This Article proposes a judicial reading of the Equal Protection Clause, "equal protection incorporation", that roots the process of identifying suspect and semi-suspect classifications in constitutional …
Pay Equity: A Fundamental Human Right, Margot Young
Pay Equity: A Fundamental Human Right, Margot Young
All Faculty Publications
This paper undertakes the limited task of determining what interpretive consequences, if any, might flow from the removal of federal pay equity provisions from their current location in the Canadian Human Rights Act and placement of such provisions in their own stand-alone legislation. Part of the interpretive stance courts currently bring to their consideration of the federal pay equity provisions reflects the placement of these provisions within federal human rights legislation. Courts have held that human rights legislation has a special nature or quasi-constitutional status. This status results from the fundamental character of the values the legislation expresses and the …