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Articles 1 - 21 of 21
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Challenging Defamatory Opinions As An Alternative To Media Self-Regulation, James F. Ponsoldt
Challenging Defamatory Opinions As An Alternative To Media Self-Regulation, James F. Ponsoldt
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This Essay analyzes defamation law as it applies to the media. Part I summarizes the state of defamation law prior to the 1990 Supreme Court decision in Milkovich v. Lorain Journal Co., when opinion was presumed immune from liability. Part II examines the holding in Milkovich, which suggests the potential liability for recklessly defamatory statements couched as or in the context of opinion. Part III reviews post-Milkovich decisions during the 1990's. This Essay concludes that the predictions of Milkovich were accurate in many jurisdictions and could apply to televised allegations during the coverage of the Clinton affair. …
Constitutional Remedies, Section 1983 And The Common Law, Michael L. Wells
Constitutional Remedies, Section 1983 And The Common Law, Michael L. Wells
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Constitutional tort law marries the substantive rights granted by the Constitution to the remedial mechanism of tort law. The sweeping language of 42 U.S.C. 1983 provides that "[e]very person who, under color of any [state law] subjects, or causes to be subjected, any [person] to the deprivation of any [constitutional rights] shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress." Constitutional tort suits raise, in a new context, many tort-like remedial questions relating to causation, immunity, and damages--and therein lies a problem. The usual source of answers to …
Remedies For The Misappropriation Of Intellectual Property By State And Municipal Governments Before And After Seminole Tribe: The Eleventh Amendment And Immunity Doctrines, Paul J. Heald, Michael L. Wells
Remedies For The Misappropriation Of Intellectual Property By State And Municipal Governments Before And After Seminole Tribe: The Eleventh Amendment And Immunity Doctrines, Paul J. Heald, Michael L. Wells
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Part I of this Article addresses relief available to intellectual property owners under the Takings Clause of the Fifth Amendment. Before Congress's express abrogation of state sovereign immunity in 1992, federal, state, and local governments were nonetheless potentially liable for misappropriations of intellectual property that constituted takings without just compensation. This examination of the Supreme Court's Fifth Amendment jurisprudence is also key to answering the critical question of whether federal patent, copyright, and trademark laws establish rights in “property” for the purposes of the Fourteenth Amendment, for only under section 5 of the Fourteenth Amendment may Congress abrogate a state's …
New York Public School Financing Litigation (Symposium: New York State Constitutional Law: Trends And Developments), Leon D. Lazer
New York Public School Financing Litigation (Symposium: New York State Constitutional Law: Trends And Developments), Leon D. Lazer
Scholarly Works
No abstract provided.
Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine
Unenumerated Constitutional Rights And Unenumerated Biblical Obligations: A Preliminary Study In Comparative Hermeneutics, Samuel J. Levine
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In his 1986 Yale Law Journal article, Robert Cover wrote of an explosion of legal scholarship placing interpretation at the crux of the enterprise of law. As part of the continuing emphasis on hermeneutics in constitutional interpretation, a body of literature has emerged comparing constitutional textual analysis to Biblical hermeneutics. This scholarship has been based on the recognition that, like the Constitution, the Bible functions as an authoritative legal text that must be interpreted in order to serve as the foundation for a living community. Levine looks at a basic hermeneutic device common to both Biblical and constitutional interpretation, the …
Reevaluating Substantive Due Process As A Source Of Protection For Psychiatric Patients To Refuse Drugs, William M. Brooks
Reevaluating Substantive Due Process As A Source Of Protection For Psychiatric Patients To Refuse Drugs, William M. Brooks
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No abstract provided.
Tort Law (Symposium: The Supreme Court And State And Local Government Law: The 1996-97 Term), Leon D. Lazer
Tort Law (Symposium: The Supreme Court And State And Local Government Law: The 1996-97 Term), Leon D. Lazer
Scholarly Works
No abstract provided.
How Does The New York Constitution Compare To The U.S. Constitution? (Annual Issue On New York State Law: Trends And Developments), Eileen Kaufman, Leon Friedman
How Does The New York Constitution Compare To The U.S. Constitution? (Annual Issue On New York State Law: Trends And Developments), Eileen Kaufman, Leon Friedman
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No abstract provided.
Deconstructing Homo[Genous] Americanus: The White Ethnic Immigrant Narrative And Its Exclusionary Effect, Sylvia R. Lazos
Deconstructing Homo[Genous] Americanus: The White Ethnic Immigrant Narrative And Its Exclusionary Effect, Sylvia R. Lazos
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This Article examines why the assumption of sameness is so pervasive in our society, and why the very idea of diversity is so resisted. The assumption and the corollary mandate to be the same are embedded in American cultural ideology, in how Americans think of themselves, in the stories that we tell regarding who we are and where we come from, in how we construct our values and norms, and in how Americans make sense of our chaotic social world. The assumption and mandate of sameness not only influence American culture, they also guide judges' thinking and decision-making in key …
Co-Opting Compassion: The Federal Victim's Rights Amendment, Lynne Henderson
Co-Opting Compassion: The Federal Victim's Rights Amendment, Lynne Henderson
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No abstract provided.
The Brady Act: Shot Down By The Tenth Amendment, Patricia A. Rooney
The Brady Act: Shot Down By The Tenth Amendment, Patricia A. Rooney
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No abstract provided.
Claims For Damages For Violations Of State Constitutional Rights – Analysis Of The Recent Court Of Appeals Decision In Brown V. New York; The Resolved And Unresolved Issues, Martin A. Schwartz
Claims For Damages For Violations Of State Constitutional Rights – Analysis Of The Recent Court Of Appeals Decision In Brown V. New York; The Resolved And Unresolved Issues, Martin A. Schwartz
Scholarly Works
No abstract provided.
Protecting Basic Rights Of Citizens, Ellen Catsman Freidin, Ann C. Mcginley
Protecting Basic Rights Of Citizens, Ellen Catsman Freidin, Ann C. Mcginley
Scholarly Works
Revision 9 suggests three important changes to the basic rights provision of the Florida Constitution. First, it would add “female and male alike” to define “natural persons who are equal before the law.” This change expressly recognizes equality of the sexes. Second, it would prohibit the government from depriving a person of any right because of the person’s national origin. Finally, the revision prohibits the government from depriving a person of any right because of “physical disability,” replacing the currently existing protection for “physical handicap.”
Affirmative Action Awash In Confusion: Backward-Looking-Future-Oriented Justifications For Race-Conscious Measures, Ann C. Mcginley
Affirmative Action Awash In Confusion: Backward-Looking-Future-Oriented Justifications For Race-Conscious Measures, Ann C. Mcginley
Scholarly Works
The Third Circuit Court of Appeals, sitting en banc, decided Taxman v. Board of Education of the Township of Piscataway, in August 1996. Eight judges agreed that he Board of Education of Piscataway Township, New Jersey violated Title VII of the Civil Rights Act by using race, in accordance with its affirmative action policy, to break a tie between two teachers in the Business Department at Piscataway High School when determining which teacher to lay off. A strong dissent by Chief Judge Sloviter was joined by two other Court of Appeals judges. The majority decision is remarkable in its breadth, …
Forum Shopping For Arbitration Decisions: Federal Courts' Use Of Antisuit Injunctions Against State Courts, Jean R. Sternlight
Forum Shopping For Arbitration Decisions: Federal Courts' Use Of Antisuit Injunctions Against State Courts, Jean R. Sternlight
Scholarly Works
Arbitration clauses, which are supposed to do away with litigation, have ironically spawned many complicated and expensive court fights. Some of the most complex cases involve both forum shopping by the parties and jurisdictional turf battles between federal and state courts. Federal courts have, on quite a few occasions, actually gone so far as to enjoin a state court from continuing to consider a pending case because the federal court concluded that the matter ought to be arbitrated. The Supreme Court, however, has never ruled on whether or when such "arbitral antisuit injunctions" are permissible. In Moses H. Cone Memorial …
Race, Angst And Capital Punishment: The Burger Court's Existential Struggle, Katherine R. Kruse
Race, Angst And Capital Punishment: The Burger Court's Existential Struggle, Katherine R. Kruse
Scholarly Works
This article chronicles the Burger Court's inability to fashion a suitable remedy for racism in the discretionary system of capital sentencing. The article discusses the Court's initial response, “remedial paralysis,” which is evident, not only in McGautha v. California, where the Court refused to find that the Due Process Clause was violated by standardless death sentencing, but also in Furman v. Georgia, where the Court decided to abolish the death penalty. The article further explores the Court's reinstatement of the death penalty, and two of the Court's forays into “bad faith” denial that sustained the death penalty, particularly the Court's …
The Federal System As Bill Of Rights: Original Understandings, Modern Misreadings, Thomas B. Mcaffee
The Federal System As Bill Of Rights: Original Understandings, Modern Misreadings, Thomas B. Mcaffee
Scholarly Works
In the modern era, we have almost completely lost track of the relationship that the Framers of the United States Constitution perceived between the structure of our federal system and the protection of popular rights. At least two obvious components of this confusion persist. First, as we have come to think of rights almost exclusively in terms of the claims of individuals against the government, we have lost the ability to hear the Framers' voices referring to rights held by the people in their collective capacity, including the rights of the people within each of the sovereign states to be …
Business Subsidies And The Dormant Commerce Clause, Dan T. Coenen
Business Subsidies And The Dormant Commerce Clause, Dan T. Coenen
Scholarly Works
In this Article, I seek to respond to the Court's overture with a treatment of of subsidies under the dormant Commerce Clause that moves progressively from the general to the specific. Part I examines key Supreme Court cases to show that the basic question of whether state business subsidies are constitutional remains open and important. Part II then turns to how that question should be resolved, focusing on whether subsidies are fairly distinguishable from ostensibly equivalent, and concededly unlawful, discriminatory tax relief. The thrust of Part II is that both precedent and policy support the traditional, pre-West Lynn Creamer" view …
Does New York's Death Penalty Statute Violate The New York Constitution? (Symposium: New York State Constitutional Law: Trends And Developments), Richard Klein, Hon. Stewart F. Hancock, Jr., Christopher Quinn
Does New York's Death Penalty Statute Violate The New York Constitution? (Symposium: New York State Constitutional Law: Trends And Developments), Richard Klein, Hon. Stewart F. Hancock, Jr., Christopher Quinn
Scholarly Works
No abstract provided.
Rethinking The Supreme Court’S Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine
Rethinking The Supreme Court’S Hands-Off Approach To Questions Of Religious Practice And Belief, Samuel J. Levine
Scholarly Works
In recent years, the United States Supreme Court has shown an increasing unwillingness to engage in deciding matters that relate to the interpretation of religious practice and belief. While the Justices have articulated valid concerns concerning these cases, courts should not allow these concerns to deter them from making decisions vital to the effective adjudication of Free Exercise and Establishment Clause cases. In fact, it appears that as a result of the Court's increasing refusal to consider carefully the religious questions central to many cases, the Court often tends to group together religious claims and practices, regardless of the relative …
Section 1983 Litigation, Martin A. Schwartz, George C. Pratt
Section 1983 Litigation, Martin A. Schwartz, George C. Pratt
Scholarly Works
No abstract provided.