Digital Commons Network^™

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …

Eldred And Lochner: Copyright Term Extension And Intellectual Property As Constitutional Property, Paul M. Schwartz, William Michael Treanor

Paul M. Schwartz

Since the ratification of the constitution, intellectual property law in the United States has always been, in part, constitutional law. Among the enumerated powers that Article I of the Constitution vests in Congress is the power to create certain intellectual property rights. To a remarkable extent, scholars who have examined the Constitution's Copyright Clause have reached a common position. With striking unanimity, these scholars have called for aggressive judicial review of the constitutionality of congressional legislation in this area. The champions of this position--we refer to them as the IP Restrictors--represent a remarkable array of constitutional and intellectual property scholars. …

Estado Contra Sociedade, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Não é só o Estado que está doente. É também a sociedade, onde proliferam tristeza, vileza, vaidades ridículas, ódio figadal, fatuidade imensa, laxismos, preguiça, abatimento, oportunismo. A sociedade tem de encontrar em si forças para se regenerar, não podendo contar com um Estado ele próprio em desagregação.

A Reply To Jamal Greene, Katharine G. Young

Katharine G. Young

No abstract provided.

Democracy And Renewed Distrust: Equal Protection And The Evolving Judicial Conception Of Politics, Bertrall L. Ross

Bertrall L Ross

Judicial interpretations of the Equal Protection Clause have undergone a major transformation over the last fifty years. A Supreme Court once suspicious of the democratic losses of discrete and insular minorities, now closely scrutinizes their democratic victories. A Court once active in structuring the democratic process to be inclusive of racial and other minorities, now views minority representation in the political process as essentially irrelevant. A Court once deferential to exercises of congressional power that enhanced the equal protection rights of minorities, now gives Congress much less leeway.

What explains these shifts? An easy explanation is that the Supreme Court …

Constitutional Theory And Political Activism: Theorectical And Practical Problems Related To Social Fundamental Rights, Carlos Luiz Strapazzon, Rodrigo Goldschmidt

Carlos Luiz Strapazzon

The main purpose of this text is to provide a critical discussion about the use, in legal theory, of the compound term ¨judicial activism¨. The institutional environment of analysis of this work is the Brazilian constitutional democracy, its complete system of fundamental rights and mixed model of constitutionality control. The main hypothesis discussed here is that the contemporary theory of democracy and the fundamental rights, in institutional settings such as Brazil, offers less obscure solutions to explain news forms of judicial performance operated to protect fundamental rights to positive actions. For that purpose, the article analyzes the uses of the …

Children, Parents & The State: The Construction Of A New Family Ideology, Deseriee A. Kennedy

Deseriee A. Kennedy

More than twenty-five states allow courts to consider parental incarceration or conviction of a crime in determining whether to terminate parental rights. This problem is of increasing significance as a result of dramatic growth in incarceration rates, particularly among women who were often the primary and sole caretaker of their children before their imprisonment. Social scientists have recognized that the reality for parents in many communities is one of widespread and repeated incarceration, which has a devastating effect on families and communities. The problem is magnified by a failed drug policy and the Adoption and Safe Families Act, which, in …

Mr., Johnmary Jideobi

JOHNMARY CHUKWUKASI JIDEOBI Esq.

As the title of this article suggests, the preoccupation of this writer is to embark on a voyage of enquiry into the issues and controversies stirred by and surrounding the governorship election held on November 16th,2013 in Anambra State of Nigeria especially an in-depth examination of how far/well the institution of the Independent National Electoral Commission (hereinafter indiscriminately referred to as “the INEC” “the Commission” or “the Umpire” for the purposes of convenience and elimination of prolixity) discharged its constitutionally assigned onerous responsibility.

Against the background of the weighty allegations of administrative lapses resulting in “disappearance” of names of registered …

The Passing Of Nonsectarianism--Some Reflections On The School Prayer Case, Robert E. Rodes

Robert Rodes

Engel v. Vitale was a landmark case which marked a jurisprudential shift in the constitutional meaning of the Establishment Clause. This paper, written in the aftermath of this important case, reflects on, and contrasts, England's historical establishment of the Church with historical nonsectarianism in the United States. After analyzing the role which the tripartite Protestant-Catholic-Jew nonsectariansm played in society before Engle, the paper suggests that nonsectarianism served the beneficial purpose of directing the whole institutional structure of society toward the last end of human beings. With the passing of nonsectarianism, the nation is left with the problem of accurately and …

On Checking The Artifacts Of Canaan: A Comment On Levinson's "Confrontation", Thomas L. Shaffer

Thomas L. Shaffer

No abstract provided.

Incentives To Create Under A "Lifetime-Plus-Years" Copyright Duration: Lessons From A Behavioral Economic Analysis For Eldred V. Ashcroft, Avishalom Tor, Dotan Oliar

Avishalom Tor

In this Article, we highlight for the first time some of the significant but hitherto unrecognized behavioral effects of copyright law on individuals' incentives to create and then examine the implications of our findings for the constitutional analysis of Eldred v. Ashcroft. We show that behavioral biases - namely, individuals' optimistic bias regarding their future longevity and their subadditive judgments in circumstances resembling the extant rule of copyright duration - explain the otherwise puzzling lifetime-plus-years basis for copyright protection given to individual authors, and reveal how this regime provides superior incentives to create. Thus, insofar as the provision of increased …

The Supreme Court And The Politics Of Death, Stephen F. Smith

Stephen F. Smith

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians - legislators, prosecutors, and governors - have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less …

The Rehnquist Court And Criminal Procedure, Stephen F. Smith

Stephen F. Smith

No abstract provided.

The Last Days Of Erastianism: Forms In The American Church-State Nexus, Robert E. Rodes

Robert Rodes

In the long history of Christendom, an Erastian view of the relation between Church and State has existed in tension with a High Church view. This paper explores the current state of our current shopworn Erastian-like church-state nexus and considers what forces may bring a more relevant and effective institutional High Church witness into being. The fact that the United States has an Erastian-like church-state relation is borne out in a line of cases involving the judicial resolution of intra-church disputes and the effect to be given the mandates of ecclesiastical authority. It is also borne out in legislative and …

Religious Education And The Historical Method Of Constitution Interpretation - A Review Article, Robert Rodes

Robert Rodes

No abstract provided.

H. Jefferson Powell On The American Constitutional Tradition: A Conversation, Thomas L. Shaffer, John H. Robinson

John H. Robinson

No abstract provided.

Employment Discrimination: Recent Developments In The Supreme Court (Symposium: The Supreme Court And Local Government Law: The 1992-93 Term), Eileen Kaufman

Eileen Kaufman

At a symposium entitled, “The Supreme Court and Local Government Law; The 1992/93 Term”, Professor Eileen Kaufman spoke about the cases involving employment discrimination that were decided during that particular Term, Hazen Paper Company v. Biggins and St. Mary's Honor Center v. Hicks. While Hazen is an age discrimination case and St. Mary's is a Title VII case, they can be viewed as companion cases which serve to explain what an employment discrimination plaintiff must now establish when attempting to prove disparate treatment by indirect evidence. By way of preview, suffice it to say that plaintiff's task has been made …

(In)Comunicação E Cidadania, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Há problemas complexos na comunicação social de um tempo regido por uma Constituição formal democrática e social e simultaneamente dominado na realidade, no plano da comunicação social, por poderosas máquinas informativas ou desinformativas, seja administradas pelo Estado, seja por grupos económicos privados. Emergem assim atores sociais e fazedores de opinião e temas de discussão (ou não) que têm muito tempo de antena, por razões que não são claras. Porquê esses e não outros? E ficam na penumbra pessoas e temas cuja importância aconselharia a que fosse dado espaço. O presente artigo aponta algumas das disfunções da comunicação que pode realmente …

Is Medicaid Constitutional?, Timothy Stoltzfus Jost

Timothy S. Jost

Not available.

The Voice Of Reason—Why Recent Judicial Interpretations Of The Antiterrorism And Effective Death Penalty Act’S Restrictions On Habeas Corpus Are Wrong, Judith L. Ritter

Judith L Ritter

By filing a petition for a federal writ of habeas corpus, a prisoner initiates a legal proceeding collateral to the direct appeals process. Federal statutes set forth the procedure and parameters of habeas corpus review. The Antiterrorism and Effective Death Penalty Act (AEDPA) first signed into law by President Clinton in 1996, included significant cut-backs in the availability of federal writs of habeas corpus. This was by congressional design. Yet, despite the dire predictions, for most of the first decade of AEDPA’s reign, the door to habeas relief remained open. More recently, however, the Supreme Court reinterpreted a key portion …

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 …

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 …

The Scope Of Congress's Thirteenth Amendment Enforcement Power After City Of Boerne V. Flores, Jennifer Mason Mcaward

Jennifer Mason McAward

Section Two of the Thirteenth Amendment grants Congress power “to enforce this article by appropriate legislation.” In Jones v. Alfred H. Mayer Co., the Supreme Court held that Section Two permits Congress to define the “badges and incidents of slavery” and pass “all laws necessary and proper” for their abolition. Congress has passed a number of civil rights laws under this understanding of its Section Two power. Several commentators have urged Congress to expansively define the “badges and incidents of slavery” and use Section Two to address everything from racial profiling to discrimination on the basis of gender and sexual …

Congressional Authority To Interpret The Thirteenth Amendment: A Response To Professor Tsesis, Jennifer Mason Mcaward

Jennifer Mason McAward

This essay explores the proper scope of Congress’s power to enforce the Thirteenth Amendment’s prohibition on slavery and involuntary servitude. It reviews the historical context surrounding the drafting of the Thirteenth Amendment enforcement power, and it points to structural constitutional considerations relevant to the understanding of that power. It concludes by suggesting some related topics that deserve further exploration.

Settled Versus Right: Constitutional Method And The Path Of Precedent, Randy J. Kozel

Randy J Kozel

No abstract provided.

Avoiding Constitutional Questions As A Three-Branch Problem, William K. Kelley

William K. Kelley

This article criticizes the cardinal rule of statutory construction known as the avoidance canon - that statutes must be interpreted to avoid raising serious constitutional questions - as failing to respect the proper constitutional roles of both Congress and the Executive. It argues that the avoidance canon in practice cannot be grounded in legislative supremacy, which is the common justification for it offered by the Supreme Court, because it assumes without foundation that Congress would always prefer not to come close to the constitutional line in enacting statutes. Instead, the avoidance canon creates pressure for courts to adopt statutory meanings …

The Export Clause And The Constitutionality Of A Cap And Trade Mitigation Policy For Carbon Dioxide, Ross Astoria

Ross Astoria

The Export Clause of the Constitution prohibits the taxing of “Articles exported from any State.” In this paper I examine the effect that Export Clause jurisprudence might have on the choice of national carbon dioxide mitigation policies. I conclude that it is unlikely that a “downstream” price on carbon dioxide emissions could include exported hydrocarbons. One corollary is that, since cap and trade policies are “downstream” pricing mechanism, it would be difficult, perhaps impossible, to craft cap and trade so as to cover exported hydrocarbons. In contrast, an “upstream” carbon tax does not suffer from this constitutional infirmity. I therefore …

Religion, Division, And The First Amendment, Richard W. Garnett

Richard W Garnett

Nearly thirty-five years ago, in Lemon v. Kurtzman, Chief Justice Warren Burger declared that state programs or policies could excessive(ly) - and, therefore, unconstitutionally - entangle government and religion, not only by requiring or allowing intrusive public monitoring of religious institutions and activities, but also through what he called their divisive political potential. Chief Justice Burger asserted also, and more fundamentally, that political division along religious lines was one of the principal evils against which the First Amendment was intended to protect. And from this Hobbesian premise about the inten(t) animating the First Amendment, he proceeded on the assumption that …

Supreme Court Wrestles With Prayer At Public Meetings, Alan E. Garfield

Alan E Garfield

No abstract provided.

Religion And Group Rights: Are Churches (Just) Like The Boy Scouts?, Richard W. Garnett

Richard W Garnett

What role do religious communities, groups, and associations play - and, what role should they play - in our thinking and conversations about religious freedom and church-state relations? These and related questions - that is, questions about the rights and responsibilities of religious institutions - are timely, difficult, and important. And yet, they are often neglected.

It is not new to observe that American judicial decisions and public conversations about religious freedom tend to focus on matters of individuals' rights, beliefs, consciences, and practices. The special place, role, and freedoms of groups, associations, and institutions are often overlooked. However, if …