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Articles 1 - 26 of 26
Full-Text Articles in Entire DC Network
Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas
Correcting A Fatal Lottery: A Proposal To Apply The Civil Discrimination Standards To The Death Penalty, Joseph Thomas
Joseph Thomas
Claims of discrimination are treated differently in the death penalty context. Discrimination in employment, housing, civil rights and jury venire all use a burden-shifting framework with the preponderance of the evidence as the standard. Discrimination that occurs in death penalty proceedings is the exception to the rule -- the framework offers less protections; there is only one phase of argumentation, with a heightened evidentiary standard of “exceptionally clear proof.” With disparate levels of protections against discrimination, the standard and framework for adjudicating claims of discrimination in the death penalty is unconstitutional.
Death is different as a punishment. But does discrimination …
Do Bills Of Rights Matter?: An Examination Of Court Change, Judicial Ideology, And The Support Structure For Rights In Canada, Donald R. Songer, Susan W. Johnson, Jennifer Barnes Bowie
Do Bills Of Rights Matter?: An Examination Of Court Change, Judicial Ideology, And The Support Structure For Rights In Canada, Donald R. Songer, Susan W. Johnson, Jennifer Barnes Bowie
Osgoode Hall Law Journal
Competing theories regarding the development of a “rights revolution” in Canada have appeared in the judicial and constitutional literature in recent years. On the one hand, scholars argue that the profound effects often attributed to the Charter of Rights and Freedoms are substantially overstated, and conventional analyses have overlooked the more important role of changes in what is called the “support structure” for rights. Others have advanced a competing theory that the Charter created an expansion of civil liberties. We take advantage of an extensive dataset on the decisions of the Supreme Court of Canada to provide a more systematic …
Violating Due Process: The Case For Changing Texas State Trafficking Laws For Minors, Cristina M. Becker
Violating Due Process: The Case For Changing Texas State Trafficking Laws For Minors, Cristina M. Becker
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
A Justified Obligation: Counsel’S Duty To File A Requested Appeal In A Post-Waiver Situation, Lauren Gregorcyk
A Justified Obligation: Counsel’S Duty To File A Requested Appeal In A Post-Waiver Situation, Lauren Gregorcyk
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
The First Amendment: Religious Freedom For All, Including Muslims, Asma Uddin
The First Amendment: Religious Freedom For All, Including Muslims, Asma Uddin
Washington and Lee Journal of Civil Rights and Social Justice
No abstract provided.
The Supreme Judicial Court In Its Fourth Century: Meeting The Challenge Of The "New Constitutional Revolution", Charles H. Baron
The Supreme Judicial Court In Its Fourth Century: Meeting The Challenge Of The "New Constitutional Revolution", Charles H. Baron
Charles H. Baron
In the mid-19th century, when the United States was confronted with daunting changes wrought by its expanding frontiers and the advent of the industrial revolution, its state supreme courts developed the principles of law which facilitated the nation's growth into the great continental power it became. First in influence among these state supreme courts was the Supreme Judicial Court of Massachusetts-whose chief justice, Lemuel Shaw, came widely to be known as "America's greatest magistrate." It is this tradition that the court brings with it as it develops its place in the "new constitutional revolution" presently sweeping our state supreme courts. …
Fundamental Rights, Private Law, And Societal Constitution: On The Logic Of The So-Called Horizontal Effect, Florian Roedl
Fundamental Rights, Private Law, And Societal Constitution: On The Logic Of The So-Called Horizontal Effect, Florian Roedl
Indiana Journal of Global Legal Studies
The paper raises the issue of a normative justification of the horizontal effect of fundamental rights in private law. Justification in this sense means that the reasons given are neither functional nor instrumental, but that the reasons are supposed to be subject to the intrinsic logic of private law. In traditional doctrine, the reason usually given to confer horizontal effect to fundamental rights is a deferral to the constitution: The constitutional text decides whether and how fundamental rights apply to private legal relationships. This answer implies that fundamental rights are either logically or normatively alien to private law, that they …
Ordered Liberty: Response To Michael Dorf, James E. Fleming, Linda C. Mcclain
Ordered Liberty: Response To Michael Dorf, James E. Fleming, Linda C. Mcclain
Faculty Scholarship
We appreciate Michael Dorf’s serious engagement with our book and his conclusion that “it responds effectively to the charge that liberalism focuses on rights to the exclusion of responsibilities.”1 He charges us, however, with an “errant theodicy” – with making the “claim that we have . . . the freedoms we have in virtue of a freestanding principle that respectful treatment of persons requires granting them autonomy as responsibility.”2 He also criticizes us for deriving basic liberties from a “freestanding interest in autonomy.”3 In this response we aim to clarify our argument concerning responsibility as autonomy and to reject the …
Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz
Civil Rights Litigation From The October 2007 Term, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Sequestering Witnesses: Does The Practice Interfere With Defendants' Constitutional Rights?, Harold Baer Jr.
Sequestering Witnesses: Does The Practice Interfere With Defendants' Constitutional Rights?, Harold Baer Jr.
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Keynote Address: The Evolution And Importance Of Creating A Civil Right To Counsel, Wade Henderson
Keynote Address: The Evolution And Importance Of Creating A Civil Right To Counsel, Wade Henderson
Touro Law Review
No abstract provided.
Ideological Voting Applied To The School Desegregation Cases In The Federal Courts Of Appeals From The 1960’S And 70’S, Joe Custer
Joe Custer
This paper considers a research suggestion from Cass Sunstein to analyze segregation cases from the 1960's and 1970's and whether three hypothesis he projected in the article "Ideological Voting on Federal Courts of Appeals: A Preliminary Investigation," 90 Va. L. Rev. 301 (2004), involving various models of judicial ideology, would pertain. My paper considers Sunstein’s three hypotheses in addition to other judicial ideologies to try to empirically determine what was influencing Federal Court of Appeals Judges in regard to Civil Rights issues, specifically school desegregation, in the 1960’s and 1970’s.
The Jury As Constitutional Identity, Andrew G. Ferguson
The Jury As Constitutional Identity, Andrew G. Ferguson
Andrew G Ferguson
This article seeks to re-conceptualize jury service in America. It suggests a new theory that looks at jury service not as a discrete task, but an on-going constitutional identity. Building off a historical tradition that dates from the Founding, but can be traced through the Suffrage Movement and the Civil Rights Era, this theory focuses on reclaiming the lost constitutional connection of jury service.
Juries once existed at the core of American constitutional identity. At the founding of the country, jury service and voting were twin political rights, equal in stature and importance. Some founders even considered the jury more …
Think Of The Children: Advancing Marriage Equality By Renewing The Focus On Same-Sex Adoption Litigation, Jacob M. Reif
Think Of The Children: Advancing Marriage Equality By Renewing The Focus On Same-Sex Adoption Litigation, Jacob M. Reif
Jacob M Reif
No abstract provided.
The Supreme Court Continues Its Journey Down The Ever Narrowing Paths Of Section 1983 And The Due Process Clause: An Analysis Of Parratt V. Taylor, Robert E. Palmer
The Supreme Court Continues Its Journey Down The Ever Narrowing Paths Of Section 1983 And The Due Process Clause: An Analysis Of Parratt V. Taylor, Robert E. Palmer
Pepperdine Law Review
After nearly a century of quiet slumber, the Supreme Court awoke the sleeping giant. In the past two decades, 42 U.S.C. §1983 has evolved into a judicial Frankenstein monster. Unable to control the beast, the Court has attempted to restrict the creature's movements by unnecessarily limiting its constitutional source. If followed to its logical conclusion, the Court's narrow reading of the Constitution may ultimately demote all due process violations to state tort remedies. This note traces the legislative and judicial evolution of section 1983 as well as the statute's present interaction with the due process clause. The vehicle for this …
Journalists, Trespass, And Officials: Closing The Door On Florida Publishing Co. V. Fletcher , Kent R. Middleton
Journalists, Trespass, And Officials: Closing The Door On Florida Publishing Co. V. Fletcher , Kent R. Middleton
Pepperdine Law Review
No abstract provided.
The New American Privacy, Richard J. Peltz-Steele
The New American Privacy, Richard J. Peltz-Steele
Faculty Publications
Conventional wisdom paints U.S. and European approaches to privacy at irreconcilable odds. But that portrayal overlooks a more nuanced reality of privacy in American law. The free speech imperative of U.S. constitutional law since the civil rights movement shows signs of tarnish. And in areas of law that have escaped constitutionalization, such as fair-use copyright and the freedom of information, developing personality norms resemble European-style balancing. Recent academic and political initiatives on privacy in the United States emphasize subject control and contextual analysis, reflecting popular thinking not so different after all from that which animates Europe’s 1995 directive and 2012 …
Firearms Policy And The Black Community: An Assessment Of The Modern Orthodoxy, Nicholas J. Johnson
Firearms Policy And The Black Community: An Assessment Of The Modern Orthodoxy, Nicholas J. Johnson
Faculty Scholarship
The heroes of the modern civil rights movement were more than just stoic victims of racist violence. Their history was one of defiance and fighting long before news cameras showed them attacked by dogs and fire hoses. When Fannie Lou Hamer revealed she kept a shotgun in every corner of her bedroom, she was channeling a century old practice. And when delta share cropper Hartman Turnbow, after a shootout with the Klan, said “I don’t figure I was being non-nonviolent, (yes non-nonviolent) I was just protecting my family”, he was invoking an evolved tradition that embraced self-defense and disdained political …
Legal Punishment As Civil Ritual: Making Cultural Sense Of Harsh Punishment, Spearit
Legal Punishment As Civil Ritual: Making Cultural Sense Of Harsh Punishment, Spearit
Articles
This work examines mass incarceration through a ritual studies perspective, paying explicit attention to the religious underpinnings. Conventional analyses of criminal punishment focus on the purpose of punishment in relation to legal or moral norms, or attempt to provide a general theory of punishment. The goals of this work are different, and instead try to understand the cultural aspects of punishment that have helped make the United States a global leader in imprisonment and execution. It links the boom in incarceration to social ruptures of the 1950s and 1960s and posits the United States’ world leader status as having more …
Parallel Investigations Between Administrative And Law Enforcement Agencies: A Question Of Civil Liberties, Shiv Narayan Persaud
Parallel Investigations Between Administrative And Law Enforcement Agencies: A Question Of Civil Liberties, Shiv Narayan Persaud
Journal Publications
No abstract provided.
The Promises Of Freedom: The Contemporary Relevance Of The Thirteenth Amendment, William M. Carter Jr.
The Promises Of Freedom: The Contemporary Relevance Of The Thirteenth Amendment, William M. Carter Jr.
Articles
This article, an expanded version of the author's remarks at the 2013 Honorable Clifford Scott Green Lecture at the Temple University Beasley School of Law, illuminates the history and the context of the Thirteenth Amendment. This article contends that the full scope of the Thirteenth Amendment has yet to be realized and offers reflections on why it remains an underenforced constitutional norm. Finally, this article demonstrates the relevance of the Thirteenth Amendment to addressing contemporary forms of racial inequality and subordination.
The First Amendment, Equal Protection, And Felon Disenfranchisement: A New Viewpoint, Janai S. Nelson
The First Amendment, Equal Protection, And Felon Disenfranchisement: A New Viewpoint, Janai S. Nelson
Faculty Publications
This Article engages the equality principles of the First Amendment and the Equal Protection Clause to reconsider the constitutionality of one of the last and most entrenched barriers to universal suffrage—felon disenfranchisement. A deeply racialized problem, felon disenfranchisement is additionally and independently a legislative judgment as to which citizen's ideas are worthy of inclusion in the electorate. Relying on a series of cases involving state interests in protecting the ballot and promoting its intelligent use, this Article demonstrates that felon disenfranchisement is open to attack under the Supreme Court's fundamental rights jurisprudence when it is motivated by a desire to …
The Causal Context Of Disparate Vote Denial, Janai S. Nelson
The Causal Context Of Disparate Vote Denial, Janai S. Nelson
Faculty Publications
For nearly fifty years, the Voting Rights Act of 1965 ("VRA") and its amendments have remedied racial discrimination in the electoral process with unparalleled muscularity. Modern vote denial practices that have a disparate impact on minority political participation, however, increasingly fall outside the VRA's ambit. As judicial tolerance of disparate impact claims has waned in other areas of law, the contours of Section 2, one of the VRA's most powerful provisions, have also narrowed to fit the shifting landscape. Section 2's "on account of race" standard to determine discrimination in voting has evolved from one of quasi-intent determined by a …
The Dignity Of Equality Legislation, Olatunde C.A. Johnson
The Dignity Of Equality Legislation, Olatunde C.A. Johnson
Faculty Scholarship
In Congressional Power to Effect Sex Equality, Patricia Seith argues that legal and social science commentary on the ratification failure of the Equal Rights Amendment ("ERA") does not properly account for the legislative gains achieved by the Economic Equity Act ("Equity Act"). In drawing attention to the Equity Act, Seith's account challenges common explanations of the source of women's equality gains, particularly the narratives offered by legal commentators who typically focus on the role of the Constitution and the courts. As Seith points out, the conventional account in legal history focuses on the effectuation of a "de facto ERA," …
Inclusion, Voice, And Process-Based Constitutionalism, Colleen Sheppard
Inclusion, Voice, And Process-Based Constitutionalism, Colleen Sheppard
Osgoode Hall Law Journal
This article explores a growing emphasis on process issues in the elaboration of constitutional rights and freedoms, focusing on the Canadian Charter of Rights and Freedoms. In a diverse range of contexts, judges are framing constitutional rights and freedoms in terms of the processes and practices they require, rather than in terms of specific constitutionally mandated substantive outcomes. Thus, constitutional rights have been interpreted to require a duty to negotiate, a duty to consult, a duty to accommodate, and entitlements to participate in democratic governance. The growing emphasis on processes and practices is positive to the extent that it resonates …
Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Carpet Under The Law), Sarah Deer, Cecilia Knapp
Muscogee Constitutional Jurisprudence: Vhakv Em Pvtakv (The Carpet Under The Law), Sarah Deer, Cecilia Knapp
Faculty Scholarship
In 1974, a group of Mvskoke citizens from Oklahoma sued the federal government in federal court. Hanging in the balance was the future of Mvskoke self-determination. The plaintiffs insisted that their 1867 Constitution remained in full effect, and that they still governed themselves pursuant to it. The United States argued that the constitution had been nullified by federal law passed in the early 1900s.
To find in favor of the plaintiffs, the court would have to rule that the United States had been ignoring the most basic civil rights of Mvskoke citizens and flouting the law for over seventy years. …