Digital Commons Network^™

Saving Disparate Impact, Lawrence Rosenthal

Lawrence Rosenthal

No abstract provided.

Brief Opposing Mma, Brendan T. Beery

Brendan T Beery

Brief challenging the constitutionality of the MMA

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Mary Margaret Meg Penrose

Meg Penrose

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

Meg Penrose

This article provides one of the first substantive treatments of United States v. Windsor, the Supreme Court's recent same-sex marriage case. The article's thesis proposes lex loci celebrationis (the place of marriage) as the proper method for determining marriage for federal law purposes. Failure to adopt lex loci celebrationis may violate the Fifth Amendment equal protection guarantee or the constitutional right to travel. Further, adoption of the lex loci celebrationis standard furthers marital stability and predictability.

The Conflict Between Stare Decisis And Ov Erruling In Constitutional Adjudication, Steven J. Burton

steven J. burton

This article argues that the Constitution constrains the Supreme Court's power to overrule its constitutional precedents. It bases this argument on the Fifth Amendment's Due Process Clause and the conjunction of Marbury v. Madison, Martin v. Hunter's Lessee, Cohens v. Virginia, and the "case or controversy" limit on federal court jurisdiction.

The Conspiracy Origin Of The First Amendment, Steven R. Morrison

Steven R Morrison

Scholars and jurists have misunderstood the import of three seminal 1919 First Amendment cases—Schenck v. United States, Frohwerk v. United States, and Abrams v. United States—as primarily free speech cases. They are better understood as free assembly cases. This is important for two reasons. First, individuals’ speech has the intended First Amendment effect only when speakers combine into groups. Second, the 1919 cases were the beginning of substantive First Amendment law, and so have resulted in a First Amendment jurisprudence that favors individual rights over group rights. This is a constitutional and normative mistake. Combined with the first reason, the …

Majoritarian Judicial Review: The Case Of Taiwan, Chien-Chih Lin

Chien-Chih Lin

Whether, and to what extent, the practice of judicial review in the United States is counter-majoritarian has been contentiously debated since its inception. Yet, whether judicial review in nascent democracies functions in the same way has not been lucidly articulated. Based on docket records, agenda setting, and case studies of the Constitutional Court in Taiwan, this paper suggests that judicial review in Taiwan is majoritarian, rather than counter-majoritarian. Specifically, the Constitutional Court is more majoritarian in the field of fundamental rights than it is in separation-of-powers cases. This finding is contradictory to conventional wisdom since high courts in new democracies …

How Much Religious Freedom Can An Arab Muslim Expect In Europe?, Marcel Stuessi

Marcel Stüssi

How much religious freedom can an Arab Muslim expect in Europe?

Arab Muslims who come to the West for work and security are often strong believers. Reli-gious law requires them to follow specific religious practices that may appear unusual to the average European observer. This situation has caused strained relations between the local (mainstream) population and Muslim migrants.

To make the position of Arab Muslims living in Europe more tangible, imagine the following situation. Assume that Mahmoud, a devout young Muslim, left Damascus to live in Zurich, Switzerland. As a young professional he was fed up with both Syria’s political …

The Conflict Between Stare Decisis And Overruling In Constitutional Adjudication, Steven J. Burton

steven J. burton

There is a near-consensus among Supreme Court Justices and constitutional scholars that there is no significant law, and need not be a law, constraining the Court's power to overrule its constitutional precedents. This Essay/Article argues, to the contrary, that the Court's overruling power should be constitutionally constrained for essentially the same reasons that virtually every other federal government power is constrained. It proposes and defends a constitutional law of overruling.

The United States Supreme Court: A Creative Check Of Institutional Misdirection?, Fletcher N. Baldwin

Fletcher N. Baldwin

In the Comment which follows Professor Baldwin presents a brief for an extremely creative Supreme Court. In contrast to those who suggest limiting the function of the Court, either by subject matter or by judicial restraint, the author would have it protect the compact upon which the community is based, by taking an active role to insure that the compensation implied in the compact flows in fact not only to the community but to the individual.

Weighing One Constitutional Need Against Another, Alan E. Garfield

Alan E Garfield

No abstract provided.

Municipal Liability And Liability Of Supervisors: Litigation Significance Of Recent Trends And Developments, Karen Blum, Celeste Koeleveld, Joel B. Rudin, Martin A. Schwartz

Martin A. Schwartz

"The purpose of this presentation is to examine two recent Supreme Court decisions, Connick v. Thompson and Ashcroft v. Iqbal with an eye to their impact on how lower federal courts will assess such claims in the wake of new constraints imposed by these cases. The focus of the discussion will be on developments in single-incident liability cases after Connick and supervisory liability claims after Iqbal."

The Constitution Of Belarus: A Good First Step Towards The Rule Of Law, Gary M. Shaw

Gary M. Shaw

No abstract provided.

No Resolution In Sight In Debate On Gun-Control Laws, Alan E. Garfield

Alan E Garfield

No abstract provided.

Article: No Child Left Behind: Why Race-Based Achievement Goals Violate The Equal Protection Clause, Ayriel Bland

Ayriel Bland

In 2002, No Child Left Behind (NCLB) was passed under President George W. Bush with the goal of increasing academic proficiency for all children in the United States by 2014. Yet, many states struggled to meet this goal and the Secretary of the U.S. Department of Education allowed states to apply for waivers and bypass the 2014 deadline. Some states implemented waivers though race-based achievement standards. For example, Florida in October 2012, established that by 2018, 74 percent of African American and 81 percent of Hispanic students had to be proficient in math and reading, in comparison to 88 percent …

All That Heaven Will Allow: A Statistical Analysis Of The Co-Existence Of Same Sex Marriage And Gay Matrimonial Bans, Deirdre Bowen

Deirdre M Bowen

This article offers the first analysis to date of national data evaluating whether defense of marriage acts (mini or super-DOMAs) preserve and stabilize the family. After finding that they do not—just as same sex marriage does not appear to destabilize families—the article analyzes what variables are, in fact, associated with family stability. Specifically, those variables are: families below the poverty line; men and women married three or more times; religiosity; percent conservative versus liberal in a state; disposable income; percent with bachelor’s degree; and median age of first marriage. Next, the article applies the sociological concepts of moral entrepreneurism and …

The Coming Constitutional Yo-Yo? Elite Opinion, Polarization, And The Direction Of Judicial Decision Making, Mark A. Graber

Mark Graber

This Article offers a more sophisticated account of elite theory that incorporates the crucial insights underlying claims that Justices with life tenure will protect minority rights and claims that the Supreme Court follows the election returns. Put simply, the direction of judicial decision making at a given time reflects the views of the most affluent and highly educated members of the dominant national coalition. The values that animate the elite members of the dominant national coalition help explain the direction of judicial decision making for the last eighty years. During the mid-twentieth century, most Republican and Democratic elites held more …

Same-Sex Marriage Case Puts High Court In A Pickle, Alan E. Garfield

Alan E Garfield

No abstract provided.

Popular Authorship And Constitution Making: Comparing And Contrasting The Drc And Kenya, James Thuo Gathii

James T Gathii

No abstract provided.

Marriage Based On Love And Trust, Not Multiplying, Alan E. Garfield

Alan E Garfield

No abstract provided.

Testimony Before The U.S. Commission On Civil Rights, Briefing On Peaceful Coexistence: Reconciling Non-Discrimination Principles With Civil Liberties, Michael A. Helfand

Michael A Helfand

No abstract provided.

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions, 2013 Edition, Garrett Power

Garrett Power

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland Francis King Carey School of Law. It is an “open content” casebook intended for classroom use in courses in Constitutional Law, Land Use Control, and Environmental Law and. It consists of 130 odd judicial opinions (most rendered by the U.S. Supreme Court) carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text considers both the personal right to liberty and the personal right in property. …

Dancing Around Equality: Public Schools And Prejudice At The Prom, Jeffrey S. Thomas

Jeffrey S. Thomas

No abstract provided.

Deadly Dicta: Roe’S “Unwanted Motherhood”, Gonzales’S “Women’S Regret” And The Shifting Narrative Of Abortion Jurisprudence, Stacy A. Scaldo

Stacy A Scaldo

For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. From the initial finding that the right to an abortion stemmed from a constitutional right to privacy[1], through the test applied and refined to determine when that right was abridged[2], to the striking of statutes found to over-regulate that right[3], the conversation from the Court’s perspective maintained a singular focus. Pro-life arguments focusing on the fetus as the equal or greater party of interest were systematically pushed aside by the Court.[4] The consequences of an unwanted pregnancy, or as …

The United States Constitution And Its History Through The Barristers And Political, Allen E. Shoenberger

Allen E Shoenberger

No abstract provided.

E Unum Pluribus: The Limitations On State Law Because Of Foreign Policy Uses Of State Law As A Gap Filler To Meet The International Obligations Of The United States, Llewellyn Gibbons

Llewellyn Joseph Gibbons

Unlike many nations where the ratification of a treaty immediately changes its internal laws, in the United States, unless the language of the treaty is self-executing, Congress must affirmatively change domestic laws to conform to the obligations of the treaty. Increasing, it is a modern trend for the United States to represent in international forums that the United States is in conformity with its international obligations because of state statutes or because of common law court decisions. This article looks whether the foreign policy representations of the United States to other countries (in the context of the international intellectual property …

The Campaign Finance Safeguards Of Federalism, Garrick B. Pursley

Garrick B. Pursley

This article provides the first systematic account of the relationship between campaign finance and federalism. Federalism—a fundamental characteristic of the constitutional structure—depends for its stability on political mechanisms. States and their advocates and representatives in Congress, federal agencies, political parties, intergovernmental lobbying groups, and other political forums work together to check federal interference with state governments. Entire normative theories of federalism depend on the assumption that this system of political safeguards is working effectively in the background. But the federalism and constitutional theory literatures lack a rigorous account of the effects of dramatic political change on pro-federalism political dynamics. Building …

In Defense Of Implied Injunctive Relief In Constitutional Cases, John F. Preis

John F. Preis

Tools To Fight Voter Suppression Still Are Needed, Alan E. Garfield

Alan E Garfield

No abstract provided.

Judicial Adjudication In Housing Rights In Brazil And Colombia: A Comparative Perspective, Vanice L. Valle

Vanice L. Valle

Cooperative constitutionalism is the watchword in the 21st. century, and the creation of a judicial network is an important tool to improve human rights protection. This paper intends to contribute in that field, reporting the constitutional framework and the main decisions held by the Brazilian and the Colombian Constitutional Courts in protecting housing rights. The comparison is justified by the historical proximity in the juridical transition in both countries – 1988 in Brazil and 1991 in Colombia –; and also by the clear inspiration that Colombia took in the Brazilian Constitution at the time of their Constituent Assembly. As the …