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Grutter's First Amendment, Paul Horwitz
Grutter's First Amendment, Paul Horwitz
University of San Diego Public Law and Legal Theory Research Paper Series
Most of the reaction to the Supreme Court's decision affirming the law school affirmative action policy at issue in Grutter v. Bollinger has focused on its Fourteenth Amendment implications. But Grutter also raises significant First Amendment issues. By reaffirming a First Amendment value of "educational autonomy," the Grutter Court raised a host of questions with implications not only for the constitutional law of academic freedom, but for First Amendment jurisprudence generally. This article therefore puts the Fourteenth Amendment to one side and provides a detailed analysis of the First Amendment implications of Grutter.
Some of the consequences of the Court's …
The Hollowness Of The Harm Principle, Steven D. Smith
The Hollowness Of The Harm Principle, Steven D. Smith
University of San Diego Public Law and Legal Theory Research Paper Series
Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …
Generic Constitutional Law, David S. Law
Generic Constitutional Law, David S. Law
University of San Diego Public Law and Legal Theory Research Paper Series
This paper seeks to articulate and explore the emerging phenomenon of generic constitutional law, here and in other countries. Several explanations are offered for this development. First, constitutional courts face common normative concerns pertaining to countermajoritarianism and, as a result, experience a common need to justify judicial review. These concerns, and the stock responses that courts have developed, amount to a body of generic constitutional theory. Second, courts employ common problem-solving skills in constitutional cases. The use of these skills constitutes what might be called generic constitutional analysis. Third, courts face overlapping influences, largely not of their own making, that …
A Case Study In The Banning Of Political Parties: The Pan-Arab Movement El Ard And The Israeli Supreme Court, Ron Harris
A Case Study In The Banning Of Political Parties: The Pan-Arab Movement El Ard And The Israeli Supreme Court, Ron Harris
ExpressO
Attempts to outlaw political groups that are alleged to approve the use of violence, to limit the expression of views that challenge the core values of democratic nation-states, and to ban radical, separatist, or religious political parties are more widespread in recent years than at any other time since 1945. They gave rise in the last few years to litigation in Constitutional Courts and Supreme Courts in Spain, Germany, Turkey, France, Israel, and Latvia, as well as in the European courts.
The present article tells the story of the encounter in the years 1959-1965 between the Pan-Arab national movement El …
“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin
“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin
ExpressO
No abstract provided.
Constitutional Crisis Over The Proposed Supreme Court For The United Kingdom, Peter L. Fitzgerald
Constitutional Crisis Over The Proposed Supreme Court For The United Kingdom, Peter L. Fitzgerald
ExpressO
No abstract provided.
The Right To Family Life And Civil Marriage Under International Law And Its Implementation In The State Of Israel, Yuval Merin
The Right To Family Life And Civil Marriage Under International Law And Its Implementation In The State Of Israel, Yuval Merin
ExpressO
The article deals with the protection of the right to family life under international law and its implementation in the State of Israel on three levels: protection of the family cell as a single unit; protection of the individuals comprising the family unit; and protection of the family in special circumstances (e.g., immigration rights).
The article begins by analyzing the characteristics of the right to family life and examining various definitions of the “family” under international and Israeli law. It also examines what it is that the right to family life encompasses and how it should be classified within the …
Beyond Rights: Legal Process And Ethnic Conflicts, Elena A. Baylis
Beyond Rights: Legal Process And Ethnic Conflicts, Elena A. Baylis
ExpressO
Unresolved ethnic conflicts threaten the stability and the very existence of multi-ethnic states. The realities of ethnic conflict are daunting: ethnic disputes tend to be both persistent and complex, and efforts to use democracy or ethnic-blind policies to deal with those conflicts tend to fail. While multi-ethnic states have struggled to devise political solutions for ethnic conflict, they have largely ignored the role that legal processes might play in resolving ethnic discord. But at certain crucial moments in the development of ethnic conflicts, legal processes such as mediation, adjudication, and constitutional interpretation might effectively address these disputes.
This article explores …
The Right To Trial By Jury In Environmental Cost-Recovery And Contribution Actions: United States V. England, Jonathan L. Mayes
The Right To Trial By Jury In Environmental Cost-Recovery And Contribution Actions: United States V. England, Jonathan L. Mayes
ExpressO
No abstract provided.