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2006

Constitutional Law

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Signed, Sealed, Delivered, And ?: The Correlation Between Policy Areas, Signing, And Legal Ratification Of Organization Of American States’ Treaties By Member States., Alexandra R. Harrington Dec 2006

Signed, Sealed, Delivered, And ?: The Correlation Between Policy Areas, Signing, And Legal Ratification Of Organization Of American States’ Treaties By Member States., Alexandra R. Harrington

ExpressO

Abstract: Signed, Sealed, Delivered, and ?: The Correlation Between Policy areas, Signing, and Legal Ratification of Organization of American States’ Treaties by Member States.

Like any organization, the Organization of American States’ ability to affect lasting policy changes through treaties is only as strong as the will of the federal legislative bodies of its member states. No matter how lofty or well-meaning the OAS’s goals in any area or matter addressed by a treaty, or the number of OAS member states which sign onto a treaty reflecting these goals, under the OAS Charter, and the federal constitutions of most member ...


Restoring The Right Constitution?, Eduardo M. Peñalver Dec 2006

Restoring The Right Constitution?, Eduardo M. Peñalver

Cornell Law Faculty Publications

After years of relative neglect, the past few decades have witnessed a dramatic renewal of interest in the natural law tradition within philosophical circles. This natural law renaissance, however, has yet to bear much fruit within American constitutional discourse, especially among commentators on the left. In light of its low profile within contemporary constitutional debates, an effort to formulate a natural law constitutionalism is almost by definition an event worthy of sustained attention. In "Restoring the Lost Constitution," Randy Barnett draws heavily upon a natural law theory of constitutional legitimacy to argue in favor of a radically libertarian reading of ...


“Pick”Ering The Speech Rights Of Public School Teachers: Arguing For A Movement By Courts Toward The Hazelwood-Tinker Standard Under The First Amendment, Heather P. Bennett Dec 2006

“Pick”Ering The Speech Rights Of Public School Teachers: Arguing For A Movement By Courts Toward The Hazelwood-Tinker Standard Under The First Amendment, Heather P. Bennett

ExpressO

This Note addresses freedom of speech issues facing the nation's public schools, concentrating on the recent decision by the District Court for the Eastern District of Virginia, Lee v. York County School Division, for the final paper in my First Amendment course. Ultimately, this Note analyzes the court’s decision in this case and both standards set forth by the Supreme Court in dealing with free speech rights in the field of public education, which are currently creating a circuit split between the Courts of Appeals. The Note argues that the Hazelwood-Tinker standard applied to student speech should be ...


Child Statements In A Post-Crawford World: What The United States Supreme Court Failed To Consider With Regard To Child Victims And Witnesses, Allie Phillips Dec 2006

Child Statements In A Post-Crawford World: What The United States Supreme Court Failed To Consider With Regard To Child Victims And Witnesses, Allie Phillips

ExpressO

With the issuance of Crawford v. Washington, 514 U.S. 36 (2004), by the United States Supreme Court on March 8, 2004, wide spread confusion and concern swept through the nation’s prosecutorial community. The new rule announced in Crawford created too many questions and provided few answers by the Court. In particular, anxiety arose from the child protection community in regard to one primary issue: Are forensic interviews of child victims and witnesses, and other statements made by children, considered “testimonial statements” according to Crawford, thus requiring the child to take the witness stand? The Court further confused the ...


Making Law, Making War, Making America (Revised 12/6/06), Mary Dudziak Dec 2006

Making Law, Making War, Making America (Revised 12/6/06), Mary Dudziak

University of Southern California Legal Studies Working Paper Series

It is often said that “in times of war, law is silent,” but this essay argues that the experience of the twentieth century provides a sharp contrast to this old saying. It is not just that law was not silent during warfare, but that law provided a language within which war could be seen. War is not a natural category outside the law, but is in part produced by it. Across decades of conflict, law was a marker that defined for the nation some of those times when conflict would be contemplated as a “war,” and helped cabin other uses ...


The Constitutionality Of The Partial-Birth Abortion Ban Of 2003, Katherine R. Atkinson Dec 2006

The Constitutionality Of The Partial-Birth Abortion Ban Of 2003, Katherine R. Atkinson

ExpressO

Evaluates the constitutionality of the Partial-Birth Abortion Ban Act of 2003, beginning with a general discussion of relevant abortion procedures and jurisprudence. The Article then analyzes the Act using the void for vagueness doctrine, the undue burden test, and the Court's analysis in Stenberg, ultimately concluding the Act is unconstitutionl.


The Constitution's Political Deficit, Robin West Dec 2006

The Constitution's Political Deficit, Robin West

Georgetown Law Faculty Publications and Other Works

Professor Levinson has wisely called for an extended conversation regarding the possibility and desirability of a new Constitutional Convention, which might be called so as to correct some of the more glaring failings of our current governing document. Chief among those, in his view, are a handful of doctrines that belie our commitment to democratic self-government, such as the two-senators-per-state makeup of the United States Senate and the Electoral College. Perhaps these provisions once had some rhyme or reason to them, but, as Levinson suggests, it is not at all clear that they do now. They assure that our legislative ...


Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook Dec 2006

Crumbs From The Master's Table: The Supreme Court, Pro Se Defendants And The Federal Guilty Plea Process, Julian A. Cook

Scholarly Works

This Article will commence with a review of the rather significant evolution of Rule 11, including a review of several pertinent Supreme Court decisions that have helped shape its current structure. Thereafter, the predominant judicial methodology for conducting Rule 11 hearings will be discussed. Specifically, this Article will take a brief but critical look at, inter alia, the examination techniques employed by the judiciary when conducting Rule 11 hearings, and conclude that the process typically employed inadequately assesses whether a defendant's guilty plea was entered into knowingly and voluntarily. Next, this Article will discuss two very recent Supreme Court ...


Privilege Through Prayer: Examining Bible-Based Prison Rehabilitation Programs Under The Establishment Clause, Nathaniel J. Odle Dec 2006

Privilege Through Prayer: Examining Bible-Based Prison Rehabilitation Programs Under The Establishment Clause, Nathaniel J. Odle

ExpressO

In early June of 2006, an Iowa federal judge found a publicly-funded prison ministry to be in violation of the Establishment Clause and ordered it stopped. The program in question, the InnerChange Freedom Initiative, conceived and maintained by Prison Fellowship Ministries, utilized an overtly Christian model to rehabilitate inmates through spiritual and moral regeneration. In the eyes of the court, the failure of the state of Iowa to provide a reasonable secular alternative had the primary effect of advancing religion and fostered excessive governmental entanglement under a traditional Lemon analysis. Equally important in the court’s decision was the lack ...


The United States Supreme Court And The Second Amendment, Stefan B. Tahmassebi Dec 2006

The United States Supreme Court And The Second Amendment, Stefan B. Tahmassebi

ExpressO

In the media and in the legislative arena there has been much debate about the holdings of the United States Supreme Court in regard to the Second Amendment. Some gun control proponents assert that the Supreme Court has held that the Second Amendment is a "collective right;" a right of the "collective" and not of any individual. Are they correct? Other gun control proponents assert that the Second Amendment has not been incorporated and is not effective against state government action. Firearms rights proponents assert that the Supreme Court has held that the Second Amendment protects the right of the ...


Broadcast Technology As Diversity Opportunity: Exchanging Market Power For Multiplexed Signal Set- Asides, Michael M. Epstein Dec 2006

Broadcast Technology As Diversity Opportunity: Exchanging Market Power For Multiplexed Signal Set- Asides, Michael M. Epstein

Federal Communications Law Journal

This Article proposes an access system based on a theory of quid pro quo: a bargained.for-exchange in which broadcasters would trade media access for market power. Under this quid pro quo approach, the FCC would administer a scaled metric whereby the greater a media company's audience reach, the more access that company must provide to citizens with diverse and local content. Since digital technology permits broadcasters to "multiplex" their television signal bandwidth into multiple signal programming streams, an opportunity exists for the government to require public access to one or more of these programming streams in return for ...


You Said What? The Perils Of Content-Based Regulation Of Public Broadcast Underwriting Acknowledgments, Andrew D. Cotlar Dec 2006

You Said What? The Perils Of Content-Based Regulation Of Public Broadcast Underwriting Acknowledgments, Andrew D. Cotlar

Federal Communications Law Journal

Public broadcast stations in the United States are forbidden to air promotional announcements in exchange for payment from commercial entities. However, these stations must acknowledge any financial contribution from donors that support particular programs without promoting the goods and services offered by those donors. While the FCC has attempted to maintain the conceptual distinction between promotional and nonpromotional information, it has struggled to apply this distinction within the context of an evolution in advertising practice.

As a result, many noncommercial educational licensees find it difficult to apply the FCC's rules. A careful analysis of how the FCC underwriting determinations ...


Conflicting Commerce Clauses: How Raich And American Trucking Dishonor Their Doctrines, John W. Moorman Dec 2006

Conflicting Commerce Clauses: How Raich And American Trucking Dishonor Their Doctrines, John W. Moorman

William & Mary Bill of Rights Journal

No abstract provided.


The Contradiction Between Equal Protection's Meaning And Its Legal Substance: How Deliberate Indifference Can Cure It, Derek W. Black Dec 2006

The Contradiction Between Equal Protection's Meaning And Its Legal Substance: How Deliberate Indifference Can Cure It, Derek W. Black

William & Mary Bill of Rights Journal

This Article highlights the inherent ambiguities of racial antidiscrimination's core legal language: "equal protection under the law" and "discrimination based on race." It then analyzes how and why the Court has never answered fundamental questions regarding the meaning of these terms. Thus, this Article answers these fundamental questions itself by exploring the original intent behind the Equal Protection Clause. Against this backdrop, this Article reveals how the Court's standard for assessing discrimination claims, the intent doctrine, assumes a meaning for equal protection that is inconsistent with its original meaning. Rather than reflecting equal protection's meaning, the standard ...


Towards A Common Law Originalism, Bernadette Meyler Dec 2006

Towards A Common Law Originalism, Bernadette Meyler

Cornell Law Faculty Publications

Originalists' emphasis upon William Blackstone's "Commentaries on the Laws of England" tends to suggest that the common law of the Founding era consisted in a set of determinate rules that can be mined for the purposes of constitutional interpretation. This Article argues instead that disparate strands of the common law, some emanating from the colonies and others from England, some more archaic and others more innovative, co-existed at the time of the Founding. Furthermore, jurists and politicians of the Founding generation were not unaware that the common law constituted a disunified field; indeed, the jurisprudence of the common law ...


Kelo's Moral Failure, Laura S. Underkuffler Dec 2006

Kelo's Moral Failure, Laura S. Underkuffler

Cornell Law Faculty Publications

No abstract provided.


Party On: The Right To Voluntary Blanket Primaries, Margaret P. Aisenbrey Dec 2006

Party On: The Right To Voluntary Blanket Primaries, Margaret P. Aisenbrey

Michigan Law Review

Political parties have unique associational rights. In party primaries, party members associate to further their common political beliefs, and more importantly, to nominate candidates. These candidate are the "standard bearer[s]" for the political party-the people who "best represent[ ] the party's ideologies and preferences." The primary represents a "crucial juncture at which the appeal to common principles may be translated into concerted action, and hence to political power in the community." Because the primary is such a critical moment for the political party, the party's asso-ciational rights are most important at this time.


Bormann Revisited: Using The Penn Central Test To Determine The Constitutionality Of Right-To-Farm Statutes, Jeffiy R. Gittins Dec 2006

Bormann Revisited: Using The Penn Central Test To Determine The Constitutionality Of Right-To-Farm Statutes, Jeffiy R. Gittins

BYU Law Review

No abstract provided.


Working Toward Democracy: Thurgood Marshall And The Constitution Of Kenya, Mary L. Dudziak Dec 2006

Working Toward Democracy: Thurgood Marshall And The Constitution Of Kenya, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This Article is a work of transnational legal history. Drawing upon new research in foreign archives, it sheds new light on the life of Thurgood Marshall, exploring for the first time an episode that he cared very deeply about: his work with African nationalists on an independence constitution for Kenya. The story is paradoxical, for Marshall, a civil rights legend in America, would seek to protect the rights of white landholders in Kenya who had gained their land through discriminatory land laws, but were soon to lose political power. In order to understand why Marshall would take pride in entrenching ...


Dumbo's Feather: An Examination And Critque Of The Supreme Court's Use, Misuse, And Abuse Of Tradition In Protecting Fundamental Rights, Ronald J. Krotoszynski Jr. Dec 2006

Dumbo's Feather: An Examination And Critque Of The Supreme Court's Use, Misuse, And Abuse Of Tradition In Protecting Fundamental Rights, Ronald J. Krotoszynski Jr.

William & Mary Law Review

The Justices of the Supreme Court have a great deal in common with the gifted pachyderm from the Walt Disney animated classic feature Dumbo. Like Dumbo's "magic" feather that purportedly enabled him to exercise his natural ability to fly, the tradition limitation on the Court's jurisprudence on unenumerated fundamental constitutional rights provides a more-apparent-than real constraint on the Court's almost unlimited ability to nullify legislative and executive action. In all too many substantive due process cases, reason seems to follow a predetermined result, rather than the result in the case following from the applicable governing principles. In ...


How To Survive A Terrorist Attack: The Constitution's Majority Quorum Requirement And The Continuity Of Congress, John Bryan Williams Dec 2006

How To Survive A Terrorist Attack: The Constitution's Majority Quorum Requirement And The Continuity Of Congress, John Bryan Williams

William & Mary Law Review

Since their realization that United Airlines Flight 93 was headed toward the U.S. Capitol on the morning of September 11, 2001, legislators and policymakers have been debating how the legislative branch would continue functioning in the aftermath of a terrorist attack that killed or incapacitated large numbers of sehators or representatives. This Article reviews the current House and Senate "Continuity of Congress"plans, and argues they are both practically and constitutionally inadequate. Focusing particularly on the Constitution's majority quorum requirement in Article I, Section Five, Clause One, this Article argues that a House or Senate operating in accordance ...


Reaffirming The Right To Pretrial Assistance: The Surprising Little Case Of Fellers V. United States, James K. Tomkovicz Dec 2006

Reaffirming The Right To Pretrial Assistance: The Surprising Little Case Of Fellers V. United States, James K. Tomkovicz

William & Mary Bill of Rights Journal

No abstract provided.


Sex Offenders In The Community: Their Public Persona And The Media's Corresponding Privilege To Report, Douglas Griswold Dec 2006

Sex Offenders In The Community: Their Public Persona And The Media's Corresponding Privilege To Report, Douglas Griswold

William & Mary Bill of Rights Journal

No abstract provided.


The Corporate Origins Of Judicial Review, Mary Sarah Bilder Dec 2006

The Corporate Origins Of Judicial Review, Mary Sarah Bilder

Boston College Law School Faculty Papers

This Article argues that the origins of judicial review lie in corporate law. Diverging from standard historical accounts that locate the origins in theories of fundamental law or in the American structure of government, the Article argues that judicial review was the continuation of a longstanding English practice of constraining corporate ordinances by requiring that they be not repugnant to the laws of the nation. This practice of limiting legislation under the standard of repugnancy to the laws of England became applicable to American colonial law. The history of this repugnancy practice explains why the Framers of the Constitution presumed ...


Public Interest Litigation And Role Of The Supreme Court In Ensuring Social Justice In Bangladesh, K. T. Alam, Abu Noman Mohammad Atahar Ali Nov 2006

Public Interest Litigation And Role Of The Supreme Court In Ensuring Social Justice In Bangladesh, K. T. Alam, Abu Noman Mohammad Atahar Ali

Abu Noman Mohammad Atahar Ali

No abstract provided.


Religião, Direitos Humanos E Educação, Paulo Ferreira Da Cunha Nov 2006

Religião, Direitos Humanos E Educação, Paulo Ferreira Da Cunha

Paulo Ferreira da Cunha

Não admira que haja atritos, incompreensões, entre as religiões e os poderes. Porque, antes de mais, foi preciso a uns e a outros comprimirem-se para darem lugar (espaço, mesmo) ao outro tipo de normatividade e de poder. Em muitos casos históricos se terá começado com um poder de índole teocrática. E só com o tempo e o progresso social e político se passaria a admitir a cisão do mando, num ramo secular e num ramo sacral. O grande problema do tratamento da questão religiosa do ponto de vista dos Direitos Humanos, é que se trata, no limite, de pôr uma ...


Moral Limits On Morals Legislation: Lessons For U.S. Constitutional Law From The Declaration On Religious Freedom, Gregory A. Kalscheur S.J. Nov 2006

Moral Limits On Morals Legislation: Lessons For U.S. Constitutional Law From The Declaration On Religious Freedom, Gregory A. Kalscheur S.J.

Boston College Law School Faculty Papers

A persistent American confusion regarding the proper relationship between law and morality is manifest in the opinions in Lawrence v. Texas. The Second Vatican Council’s Declaration on Religious Freedom provides the foundation for an analytical framework that can bring clarity to that confusion. The heart of this framework is the moral concept of public order. This concept offers a principled explanation of both the holding in Lawrence and the limitations the Court placed on that holding. The Court could clarify the confusion manifest in Lawrence by explicitly acknowledging that a state interest only becomes legitimate for purposes of rational ...


The Meaning Of “Life”: The Morning-After-Pill, The Question Of When Life Begins, And Judicial Review, Jason M. Horst Nov 2006

The Meaning Of “Life”: The Morning-After-Pill, The Question Of When Life Begins, And Judicial Review, Jason M. Horst

ExpressO

The Article foresees that certain state legislation limiting access to the morning-after-pill will thrust the question of when life begins onto the courts. This is due both to fact that the morning-after-pill has the potential to act at a point when the existence of potential life is in dispute and largely a matter of belief and to the fact that the constitutionality of the legislation may depend on whether courts consider the morning-after-pill abortion or contraception.

The Article argues that courts should address the question of whether to consider the morning-after-pill abortion or contraception by attempting to adopt and apply ...


Censorship By Proxy: The First Amendment, Internet Intermediaries, And The Problem Of The Weakest Link, Seth F. Kreimer Nov 2006

Censorship By Proxy: The First Amendment, Internet Intermediaries, And The Problem Of The Weakest Link, Seth F. Kreimer

Faculty Scholarship at Penn Law

The rise of the Internet has changed the First Amendment drama, for governments confront technical and political obstacles to sanctioning either speakers or listeners in cyberspace. Faced with these challenges, regulators have fallen back on alternatives, predicated on the fact that, in contrast to the usual free expression scenario, the Internet is not dyadic. The Internet's resistance to direct regulation of speakers and listeners rests on a complex chain of connections, and emerging regulatory mechanisms have begun to focus on the weak links in that chain. Rather than attacking speakers or listeners directly, governments have sought to enlist private ...


The Founders And Slavery, Arthur R. Landever Nov 2006

The Founders And Slavery, Arthur R. Landever

Law Faculty Presentations and Testimony

The point of my talk is that our founders, who our tradition praises profusely of course, as men on Mount Olympus, had moral blinders on. I'm going to talk about key founders. Then I'm going to talk about the key English case, decided in 1772, Somerset v. Stuart. Then I'm going to talk about the Compromises of the 1770s and 1780s. Then I'm going to talk about what we can and can't learn from history. Then I'm going to consider what our generation is doing in the 21st century, considering what might shock our ...