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Due Process And Fundamental Rights, Martin A. Schwartz Jan 2000

Due Process And Fundamental Rights, Martin A. Schwartz

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No abstract provided.


The Tenth Amendment Among The Shadows: On Reading The Constitution In Plato's Cave, Jay S. Bybee Jan 2000

The Tenth Amendment Among The Shadows: On Reading The Constitution In Plato's Cave, Jay S. Bybee

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In Plato's Allegory of the Cave, he describes a cavernous chamber in which men are imprisoned. Although a large fire lights the cave, the prisoners cannot see the light source. Instead, they can only make out figures that dance and parade in front of them illuminated by the fire. The prisoners cannot even see the figures directly, only their shadows. Everything that the prisoners know about reality they have learned from the distorted shapes of the shadows dancing about the cave's walls. Socrates wonders, if a prisoner were suddenly freed and could see the objects themselves and not ...


Common Ground: Robert Jackson, Antonin Scalia, And A Power Theory Of The First Amendment, Jay S. Bybee Jan 2000

Common Ground: Robert Jackson, Antonin Scalia, And A Power Theory Of The First Amendment, Jay S. Bybee

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There are few cases that contrast more starkly than Justice Robert Jackson's opinion for the Court in West Virginia State Board of Education v. Barnette and Justice Antonin Scalia's majority opinion in Employment Division v. Smith. Although we praise Barnette for its soaring defense of the Free Speech Clause and excoriate Smith for its crabbed reading of the Free Exercise Clause, in fact, Justice Jackson and Justice Scalia are not so far apart. When we read Barnette and Smith in context, we will find that Justice Jackson and Justice Scalia treaded common ground with respect to the First ...


Toward The Restorative Constitution: A Restorative Justice Critique Of Anti-Gang Public Nuisance Injunctions, Joan W. Howarth Jan 2000

Toward The Restorative Constitution: A Restorative Justice Critique Of Anti-Gang Public Nuisance Injunctions, Joan W. Howarth

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Gang members from elsewhere congregated on lawns, on sidewalks, and in front of apartment complexes at all hours. They displayed a casual contempt for notions of law, order, and decency -- openly drinking, smoking dope, sniffing toluene, and even snorting cocaine laid out in neat lines on the hoods of residents' cars. San Jose prosecutors responded by obtaining and enforcing a broad injunction against the gangs and their members, based on the finding that the gangs' activities constituted a public nuisance. California prosecutors have sought such anti-gang public nuisance injunctions since 1987. Their constitutionality was in doubt for ten years until ...