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Articles 1 - 30 of 1123
Full-Text Articles in Entire DC Network
The Overlooked Communities Of Forced Displacement In The United States: Humanizing The Relocation Of Indigenous Tribes In The Face Of Climate Change, Jennifer O'Rourke
The Overlooked Communities Of Forced Displacement In The United States: Humanizing The Relocation Of Indigenous Tribes In The Face Of Climate Change, Jennifer O'Rourke
University of Cincinnati Law Review
No abstract provided.
Exploring An Establishment Clause Challenge To State Abortion Bans, Alex Pilla
Exploring An Establishment Clause Challenge To State Abortion Bans, Alex Pilla
Student Works
No abstract provided.
The Implications Of Free Exercise Clause Jurisprudence For State Abortion Bans, Kunjan Sunil Patel
The Implications Of Free Exercise Clause Jurisprudence For State Abortion Bans, Kunjan Sunil Patel
Student Works
No abstract provided.
Voices In Education Law Advocacy, Kristen E. Murray
Voices In Education Law Advocacy, Kristen E. Murray
Case Western Reserve Law Review
No abstract provided.
Free Exercise Of Abortion, Elizabeth Sepper
Free Exercise Of Abortion, Elizabeth Sepper
BYU Law Review
For too long, religion has been assumed to be in opposition to abortion. Abortions consistent with, motivated by, and compelled from religion have been erased from legal and political discourse. Since the fall of Roe v. Wade, free exercise claims against abortion bans have begun to correct course. Women and faith leaders in several states have filed suit, asserting their religious convictions in favor of abortion. They give form to the reality—as progressive theologians have long argued—that to have a child can be a sacred choice, but not to have a child can also be a sacred choice. And they …
Expert Knowledge, Democratic Accountability, And The Unitary Executive, Barry Sullivan
Expert Knowledge, Democratic Accountability, And The Unitary Executive, Barry Sullivan
Fordham Law Review
Proponents of the “unitary executive” theory hold that “all federal officers exercising executive power must be subject to the direct control of the President.” But how, as a constitutional matter, should such presidential control be defined, and how should it be effectuated? Unitarians are not united. Kevin H. Rhodes and Professor Steven G. Calabresi identify at least three distinct versions of the theory, which reflect a diversity of responses to those questions. The strongest or most aggressive version (which may also find the least support in the relevant jurisprudence) holds that the President may “supplant any discretionary executive action taken …
The President's Fourth Branch?, Bijal Shah
The President's Fourth Branch?, Bijal Shah
Fordham Law Review
Unitary executive theory has taken hold of the administrative state, motivated by the view that agencies constitute a rogue fourth branch of government. Emboldened by the U.S. Supreme Court, the President has begun to interfere with administrative accountability to important criteria including statutory procedural requirements that impact both public participation and administrative due process, the expectation that agencies engage neutral expertise to implement the law, and the obligations of judicial review. As a result, this Essay argues, rather than constituting a fourth branch that is unaccountable to the President, the administrative state has been encouraged by the President and courts …
Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson
Command And Control: Operationalizing The Unitary Executive, Gary S. Lawson
Faculty Scholarship
The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …
Inactive Exercise & Unequal Protection: Espinoza & Carson Under The Equal Protection Clause, Griffith B. Bludworth
Inactive Exercise & Unequal Protection: Espinoza & Carson Under The Equal Protection Clause, Griffith B. Bludworth
University of Cincinnati Law Review
No abstract provided.
Theorizing Social Movement Practices, Christopher Lomelín, Anna Peterson
Theorizing Social Movement Practices, Christopher Lomelín, Anna Peterson
The Journal of Social Encounters
This essay contributes to the systematic and expansive exploration of social movement practices by looking more closely at symbolic and instrumental practices, on the one hand, and works of mercy and structural transformation practices, on the other. The categories we have discussed, while far from perfect, provide valuable tools to understand social movement practices and thus movements in general. We argue that attention to practices can strengthen the systematic, comparative analysis of social movements both by calling attention to previously under-studied types of activities and by illuminating the relationships between different types of practices.
Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman
Movement On Removal: An Emerging Consensus On The First Congress, Jed Handelsman Shugerman
Faculty Scholarship
What did the “Decision of 1789” decide about presidential removal power, if anything? It turns out that an emerging consensus of scholars agrees that there was not much consensus in the First Congress.
Two more questions follow: Is the “unitary executive theory” based on originalism, and if so, is originalism a reliable method of interpretation based on historical evidence?
The unitary executive theory posits that a president has exclusive and “indefeasible” executive powers (i.e., powers beyond congressional and judicial checks and balances). This panel was an opportunity for unitary executive theorists and their critics to debate recent historical research questioning …
Major Questions About Presidentialism: Untangling The “Chain Of Dependence” Across Administrative Law, Jed Handelsman Shugerman, Jodi L. Short
Major Questions About Presidentialism: Untangling The “Chain Of Dependence” Across Administrative Law, Jed Handelsman Shugerman, Jodi L. Short
Faculty Scholarship
A contradiction about the role of the president has emerged between the Roberts Court’s Article II jurisprudence and its Major Questions Doctrine jurisprudence. In its appointment and removal decisions, the Roberts Court claims that the president is the “most democratic and politically accountable official in Government” because the president is “directly accountable to the people through regular elections,” an audacious new interpretation of Article II; and it argues that tight presidential control of agency officials lends democratic legitimacy to the administrative state. We identify these twin arguments about the “directly accountable president” and the “chain of dependence” as the foundation …
Religious Liberty For Religious Child-Welfare Organizations: Promises And Perils, Asma T. Uddin
Religious Liberty For Religious Child-Welfare Organizations: Promises And Perils, Asma T. Uddin
Notre Dame Law Review Reflection
In the 2015 case Obergefell v. Hodges, the U.S. Supreme Court held that states cannot deny same-sex couples access to marriage and its accompanying benefits. Some religious communities with traditional beliefs about marriage and sexuality responded to the ruling with strong concerns about its potential impact on their religious exercise.
One area of concern involved religious child-welfare organizations that work with the state to provide these services. In all states, there are two options for prospective parents seeking to adopt children. In the private system, birth parents voluntarily place their child up for adoption through a private organization. In …
Assisted Suicide, Forced Cooperation, And Coercion: Reflections On A Brewing Storm, Lucia A. Silecchia
Assisted Suicide, Forced Cooperation, And Coercion: Reflections On A Brewing Storm, Lucia A. Silecchia
Notre Dame Law Review Reflection
Because government funds to institutions and individuals finance a significant amount of medical care in the United States, the prospect of conditions or “strings” attached to that funding is an ever-present specter. Furthermore, the fact that institutions and individuals require licenses to provide medical care also raises these possibilities as the brave new world of medicine poses far more moral dilemmas than anticipated even a brief time ago.
This has led many institutions and individuals to refrain from various activities, believing that to do so would constitute direct or material cooperation in an evil activity. Their ability to avoid participation …
Mysterizing Religion, Marc O. Degirolami
Mysterizing Religion, Marc O. Degirolami
Notre Dame Law Review Reflection
A mystery of faith is a truth of religion that escapes human understanding. The mysteries of religion are not truths that human beings happen not to know, or truths that they could know with sufficient study and application, but instead truths that they cannot know in the nature of things. In the Letter to the Colossians, St. Paul writes that as a Christian apostle, his holy office is to “bring to completion for you the word of God, the mystery hidden from ages and from generations past.” Note that Paul does not say that his task is to make everybody …
When Life Begins: A Case Study Of The Unitarian Universalism Faith And Its Potential To Combat Anti-Abortion Legislation, Jennifer O'Rourke
When Life Begins: A Case Study Of The Unitarian Universalism Faith And Its Potential To Combat Anti-Abortion Legislation, Jennifer O'Rourke
University of Cincinnati Law Review
No abstract provided.
"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan S. Chapman
"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan S. Chapman
Notre Dame Law Review
This Essay first attempts to understand how a contested Christian doctrine found its way into constitutional law. It does so through a reverse genealogy of ideas—an archaeology, perhaps. The Essay begins by sketching how U.S. constitutionalism, in both theory and doctrine, reflects the belief that the “arc of the moral universe is long, but it bends toward justice.” It then suggests that underlying this constitutional theme is a merger of two features of American civil religion: the tradition of treating the Declaration of Independence and the Constitution as the central texts of a sacred canon and the belief that America …
Centrality And Compliance: Unitary Vs. Federalist Political Systems In The Implementation Of The Kyoto Protocol In Argentina And Uruguay, Aidan Homan
Baker Scholar Projects
When Uruguay and Argentina first gained their respective independence in the early 1800s, they appeared to be following the same path of development As countries that came from the same Spanish colonization, share almost identical agricultural economies, and retain a close relationship, it is logical that they would follow similar trajectories. This assumption proves to be inaccurate in more ways than one, but most prominently within the environmental sphere. One way to analyze this difference in policy implementation lies in compliance with international environmental treaties which contain specific goals and limits for all parties involved. The Kyoto Protocol presents a …
Noncitizen Harboring And The Freedom Of Association, Shalini Bhargava Ray
Noncitizen Harboring And The Freedom Of Association, Shalini Bhargava Ray
North Carolina Law Review
No abstract provided.
Surveillance, State Secrets, And The Future Of Constitutional Rights, Laura K. Donohue
Surveillance, State Secrets, And The Future Of Constitutional Rights, Laura K. Donohue
Georgetown Law Faculty Publications and Other Works
The Supreme Court’s 2022 decision in Federal Bureau of Investigation v. Fazaga heralds a worrying trend. Over the past 15 years, as more information about how the government wields its foreign intelligence collection authorities on U.S. soil has become available, it has become clear that the government has repeatedly acted outside its constitutional and statutory limits, and at times, in flagrant disregard for judicial orders. As a result, dozens of cases challenging surveillance have been making their way through the courts. Unlike in prior eras, in certain cases it has become easier for litigants to establish an injury-in-fact in light …
Mysterizing Religion, Marc O. Degirolami
Mysterizing Religion, Marc O. Degirolami
Scholarly Articles
In this short essay, I suggest that "mysterizing" religion may change the stakes in some of the most controversial contemporary conflicts in law and religion. To mysterize (not a neologism, but an archaism) is to cultivate mystery about a subject, in the sense described above-to develop and press the view that a certain subject or phenom-enon is not merely unknown, but unknowable by human beings. At the very least, such mysteries are unknowable by those human beings who have charge of the secular legal order of earthly human affairs, Paul's "princes of this world." That is what I propose to …
A Unique Killing: Adoptive Parents Who Kill Their Adopted Children; Adopted Children Who Kill Their Adoptive Parents, Karen Greenberg, Daniel Pollack, Ellen Crane, Khaya Eisenberg
A Unique Killing: Adoptive Parents Who Kill Their Adopted Children; Adopted Children Who Kill Their Adoptive Parents, Karen Greenberg, Daniel Pollack, Ellen Crane, Khaya Eisenberg
Nova Law Review
No abstract provided.
Nova Law Review Full Issue Volume 47, Issue 2
Command And Control: Operationalizing The Unitary Executive, Gary Lawson
Command And Control: Operationalizing The Unitary Executive, Gary Lawson
Fordham Law Review
The concept of the unitary executive is written into the Constitution by virtue of Article II’s vesting of the “executive Power” in the President and not in executive officers created by Congress. Defenders and opponents alike of the “unitary executive” often equate the idea of presidential control of executive action with the power to remove executive personnel. But an unlimitable presidential removal power cannot be derived from the vesting of executive power in the President for the simple reason that it would not actually result in full presidential control of executive action, as the actions of now-fired subordinates would still …
The Mystery Of The Leavenworth Oaths, M H. Hoeflich, Stephen M. Sheppard
The Mystery Of The Leavenworth Oaths, M H. Hoeflich, Stephen M. Sheppard
Faculty Articles
Lawyers have sworn an oath to be admitted to the Bar since the beginnings of the Anglo-American legal profession. The oath serves several extremely important purposes. First, it is the formal act that admits an individual into the Bar and confers upon the oath taker the right to perform the duties of an attorney in the jurisdiction in which the oath is given. Second, the oath admits the new attorney to the broader world of the legal profession and signifies that the new attorney has been judged by the oath giver as worthy of the right to practice law. Third, …
Noncitizen Harboring And The Freedom Of Association, Shalini Bhargava Ray
Noncitizen Harboring And The Freedom Of Association, Shalini Bhargava Ray
Articles
The United States has long criminalized assistance to unauthorized migrants. It is a crime to smuggle, transport, harbor, or encourage unauthorized migrants to remain in the country, regardless of the reasons for such aid. In response to recent federal harboring prosecutions of humanitarians assisting migrants at the U.S.- Mexico border, scholars and advocates have shown tremendous interest in a defense to liability under the Religious Freedom Restoration Act and the First Amendment's Free Speech Clause. But a comparative analysis of harboring law reveals that some foreign jurisdictions conceptualize harboring law and defenses to liability in terms of citizen-migrant associations rather …
Sincerity, Subjectivity & Religion: The Evolution Of Rfra From A Constitutional Shield To A Political Sword, Emily Kathryn Tubb
Sincerity, Subjectivity & Religion: The Evolution Of Rfra From A Constitutional Shield To A Political Sword, Emily Kathryn Tubb
Oklahoma Law Review
No abstract provided.
"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan Chapman
"The Arc Of The Moral Universe": Christian Eschatology And U.S. Constitutionalism, Nathan Chapman
Scholarly Works
At the heart of American constitutionalism is an irony. The United States is constitutionally committed to religious neutrality; the government may not take sides in religious disputes. Yet many features of constitutional law are inexplicable without their intellectual and cultural origins in religious beliefs, practices, and movements. The process of constitutionalization has been one of secularization. The most obvious example is perhaps also the most ideal of liberty of conscience that fueled religious disestablishment, free exercise, and equality was born of a Protestant view of the individual’s responsibility before God.
This Essay explores another overlooked instance of constitutional secularization. Many …
Becoming The Administrator-In-Chief: Myers And The Progressive Presidency, Andrea Scoseria Katz, Noah A. Roseblum
Becoming The Administrator-In-Chief: Myers And The Progressive Presidency, Andrea Scoseria Katz, Noah A. Roseblum
Scholarship@WashULaw
In a series of recent cases, the Supreme Court has mounted an assault on the administrative state, guided by a particular vision of Article II. According to the Court’s scheme, known as the theory of the unitary executive, all of government’s operations must be housed under one of three branches, with the single head of the executive branch shouldering a unique and personal responsibility for the administration of federal law. The Constitution is thus said to require that the President have expansive authority to supervise or control the government’s many agencies.
Guiding each of the Court’s recent decisions is Myers …
The Remains Of The Establishment Clause, Ira C. Lupu, Robert W. Tuttle
The Remains Of The Establishment Clause, Ira C. Lupu, Robert W. Tuttle
GW Law Faculty Publications & Other Works
The very first words of the Bill of Rights mark religion as constitutionally distinctive. Congress may not enact laws respecting an establishment of religion – in particular, acts of worship, religious instruction, or proselytizing. A pluralist, liberal democracy requires separation of civil government from these distinctively religious activities.
From the middle of the 20 th Century until Justice O’Connor’s retirement in 2005, the Supreme Court energetically animated that principle of distinctiveness. In a series of decisions in the last decade, however, the Court has upended its longstanding approach to what is distinctive about religion in constitutional law. Notably, this process …