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From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Hezi Margalit

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known …

The Power Of Religion In A Secular Society, John O. Hayward

John O. Hayward

Even though many would deny the power and influence of religion in this day and age and opine for freedom from religion, this article seeks to persuade the reader that law and religion are interdependent and that religion is an important element in our secular society. Through an exploration of the religious dimensions of law and the legal dimensions of religion as well as an analysis of selected U. S. Supreme Court cases in the areas of criminal law, unemployment compensation, conscientious objector status, education, and the contraceptive mandate, this essay seeks to demonstrate how religious beliefs have influenced judicial …

Stemming The Hobby Lobby Tidal Wave: Why Rfra Challenges To Obama's Executive Order Prohibiting Federal Contractors From Discriminating Against Lgbt Employees Will Not Succeed, Kayla Higgins

Kayla Higgins

On July 21, 2014 President Obama released Executive Order 13672, which expressly aimed to provide for a uniform policy for the Federal Government to prohibit discrimination and take further steps to promote economy and efficiency in Federal Government procurement by prohibiting discrimination based on sexual orientation and gender identity. Some commentators believe that the order “could be the next battleground” for the competing views of religious leaders and liberals when it comes to how to weigh religious liberty against other priorities. However, there are two main reasons why the most recent executive order should not crumble under the Hobby Lobby …

The 2016 Election And The Future Of Constitutional Law: The Lessons Of 1968, Earl Maltz

Earl Maltz

The upcoming presidential election of 2016 may very well become a pivotal moment in the evolution of American constitutional doctrine. Given the ages of a number of the sitting justices, the next President could easily have the opportunity to choose several new members of the Court. Moreover, because the Court is currently divided almost equally along ideological lines, even a single appointment could have the effect of turning the overall orientation of the Court’s decisions sharply to either the right or the left.

To illustrate the effect that a single election can have on the development of constitutional law, this …

Obergefell V. Hodges: How The Supreme Court Should Have Ruled, Adam Lamparello

Adam Lamparello

In Obergefell, et al. v. Hodges, Justice Kennedy’s majority opinion legalizing same-sex marriage was based on “the mystical aphorisms of a fortune cookie,” and “indefensible as a matter of constitutional law.” Kennedy’s opinion was comprised largely of philosophical ramblings about liberty that have neither a constitutional foundation nor any conceptual limitation. The fictional opinion below arrives at the same conclusion, but the reasoning is based on equal protection rather than due process principles. The majority opinion holds that same-sex marriage bans violate the Equal Protection Clause because they: (1) discriminate on the basis of gender; (2) promote gender-based stereotypes; and …

Domestic Violence And The Confrontation Clause: The Case For A Prompt Post-Arrest Confrontation Hearing, Robert M. Hardaway

Robert Hardaway

Prior to the Supreme Court’s 2004 decision in case of Crawford v. Washington, a prosecutor could pursue a domestic violence case and introduce the prior accusatory testimonial statement of the victim even where the victim refused to appear at trial, declined to testify at trial, retracted a prior statement made to police, or claimed lack of memory as to the events described in her prior statement if: 1) the victim was unavailable, and 2) the statement bore ‘adequate indicia of reliability’ as indicated by falling within a ‘firmly rooted hearsay exception’, or satisfied ‘particularized guarantees of trustworthiness’. Ohio v. Roberts …

The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad

Zeina Jallad

The Power of the Body:

Analyzing the Logic of Law and Social Change in the Arab Spring

Abstract:

Under conditions of extreme social and political injustice - when human rights are under the most threat - rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian …

A Call For An Overhaul Of The U.S. Federal Court System, Huhnkie Lee

Huhnkie Lee

No abstract provided.

A Call For An Overhaul Of The U.S. Federal Court System, Huhnkie Lee

Huhnkie Lee

No abstract provided.

Free Exercise For Whom? -- Could The Religious Liberty Principle That Catholics Established In Perez V. Sharp Also Protect Same-Sex Couples' Right To Marry?, Eric Alan Isaacson

Eric Alan Isaacson

Recent discussions about the threat that same-sex couples hypothetically pose to the religious freedom of Americans whose religions traditions frown upon same-sex unions have largely overlooked the possibility that same-sex couples might have their own religious-liberty interest in being able to marry. The General Synod of the United Church of Christ brought the issue to the fore with an April 2014 lawsuit challenging North Carolina laws barring same-sex marriages. Authored by a lawyer who represented the California Council of Churches and other religions organizations as amici curiae in recent marriage-equality litigation, this article argues that although marriage is a secular …

From Reynolds To Lawrence To Brown V. Buhman: Antipolygamy Statutes Sliding On The Slippery Slope Of Same-Sex Marriage, Stephen L. Baskind

Stephen L Baskind

In 2003 in Lawrence v. Texas (striking Texas’ sodomy law), Justice Scalia predicted in his dissent the end of all morals legislation. If Justice Scalia is correct most, if not all, morals-based legislation may fall. For example, in recent years state laws prohibiting same-sex marriage have fallen to constitutional challenges. Ten years after Lawrence in 2013, a Utah Federal District Court in Brown v. Buhman, though feeling constrained by the 1878 Reynolds case (which rejected a First Amendment challenge to an antipolygamy law), nevertheless at the request of a polygamous family concluded that the cohabitation prong of Utah’s anti-bigamy …

Twenty-First Century Regression: The Disparate Impact Of Hiv Transmission Laws On Gays, Siobhan E. Murillo

Siobhan E Murillo

No abstract provided.

Dialogical Constitutionalism Manifestations In The Brazilian Judicial Review, Vanice L. Valle

Vanice L. Valle

The exponential growth in judicial review in Brazil, compared with the international scenery, is not out of tune – and it has a direct relation with many Brazilian constitutional features. An analytical text (with over 400 articles) and a large spectrum of fundamental rights, provide an ambience that favors highly intense controversy about State obligations in providing goods and public services, or even about the possible tensions that may arise between those same rights. The Brazilian Supreme Court faces that unmanageable number of lawsuits, notably related with claims regarding the non-granting of socioeconomic rights. That discussion give rise to intense …

Why Chief Justice Roy Moore And The Alabama Supreme Court Just Made The Best Case For Same-Sex Marriage, Adam Lamparello

Adam Lamparello

The Alabama Court of the Judiciary should remove Roy Moore from the Supreme Court of Alabama for a second and final time. Over ten years after being ousted from the Alabama Supreme Court, Chief Justice Moore is embroiled in yet another controversy that involves disregarding the federal courts and creating chaos in the legal system. In fact, Moore recently stated that he would ignore the Supremacy Clause and not respect a U.S. Supreme Court decision invalidating same-sex marriage bans. That statement brings back memories of Governor Wallace’s infamous stand at the schoolhouse door. At least Wallace had a change of …

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Michael Anthony Lawrence

This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.

The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 work, A Theory of …

Definitions, Religion, And Free Exercise Guarantees, Mark Strasser

Mark Strasser

The First Amendment to the United States Constitution protects the free exercise of religion. Non-religious practices do not receive those same protections, which makes the ability to distinguish between religious and non-religious practices important. Regrettably, members of the Court have been unable to agree about how to distinguish the religious from the non-religious—sometimes, the implicit criteria focus on the sincerity of the beliefs, sometimes the strength of the beliefs or the role that they play in an individual’s life, and sometimes the kind of beliefs. In short, the Court has virtually guaranteed an incoherent jurisprudence by sending contradictory signals with …

Eliminating Undue Burdens To Women's Health: Reproductive Justice Under A “Contexual Intent” Standard, Katie L. Filous

Katie L. Filous

By examining Jackson Women’s Health Organization, et. al. v. Mary Currier, et. al., this article will advocate for the position that the Supreme Court should utilize a “contextual intent” standard in reproductive justice cases in which “undue burdens” and “substantial obstacles” are being evaluated. Part I of the article will discuss the shift from reproductive “rights” to reproductive “justice” by discussing various state legislatures’ attempts at restricting abortion in conjunction with Ian Haney Lopez’s “contextual intent” theory. Part II will discuss the historical roots of varying analyses of reproductive justice cases, from public health and safety to fetal viability to …

The Doctrine Of True Threats: Protecting Our Ever-Shrinking First Amendment Rights In The New Era Of Communication, Mary M. Roark

Mary M Roark

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Such protection has withstood the test of time and is heralded as one of our most precious rights as Americans. “The hallmark of the protection of free speech is to allow ‘free trade in ideas’—even ideas that the overwhelming majority of people might find distasteful or discomforting." However, “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem." One such proscribable form of speech is the “true …

Does The Right To Elective Abortion Include The Right To Ensure The Death Of The Fetus?, Stephen G. Gilles

Stephen G Gilles

Is the right to an elective abortion limited to terminating the woman’s pregnancy, or does it also include the right to ensure the death of the fetus? Important as this question is in principle, in today’s world the conduct that would squarely raise it cannot occur in practice. The right to elective abortion applies only to fetuses that are not viable, which by definition means that they have been determined to have no realistic chance of surviving outside the uterus. Even if abortion providers used fetus-sparing methods rather than the fetus-killing methods they currently prefer, pre-viable fetuses would die within …

The Law Of Antigayism, Huhnkie Lee

Huhnkie Lee

No abstract provided.

Dog Whistling, The Color-Blind Jurisprudential Regime And The Constitutional Politics Of Race, Calvin J. Terbeek

Calvin J TerBeek

Ian Haney Lopez’s new book, "Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism and Wrecked the Middle Class", has a provocative thesis. Lopez contends that dog-whistling, that is, coded racial rhetoric, “explains how politicians backed by concentrated wealth manipulate racial appeals to win elections and also to win support for regressive policies that help corporations and the super-rich, and in the process wreck the middle class." Though this may seem plausible enough, the thesis cannot stand up to scrutiny; the relevant political science literature provides no support for this. What is more, Lopez's treatment of the Supreme Court's …

Originalism In Puerto Rico: Original Explication And Its Relation With Clear Text, Broad Purpose And Progressive Policy, Jorge Farinacci-Fernós

Jorge Farinacci-Fernós

Originalism is neither inherently conservative nor exclusive to the United States. Puerto Rico, a self-governing U.S. jurisdiction, has been using a particular form of originalism as its main methodological tool for constitutional interpretation and adjudication since 1952. Puerto Rican originalism has several key traits. First, it's politically progressive, due to the framers' explicit progressive agenda which is palpable from the historical sources. Second, their intent is empirically verifiable, due to the formality and transparency of constitutional creation that generated a formal and elaborate record. Third, the constitutional record is considered the authoritative source of constitutional meaning. Fourth, the textual characteristics …

Can A One Star Review Get You Sued? The Right To Anonymous Speech On The Internet And The Future Of Internet “Unmasking” Statutes, Jesse D. Lively

Jesse D Lively

This Comment argues that the Supreme Court of Virginia should first reverse the Virginia Court of Appeal’s decision when it hears the Yelp case later this year. Secondly, the court hold that the Virginia statute for identifying persons communicating anonymously over the Internet violates the First Amendment's required showing of merit on both law and facts before a subpoena duces tecum to identify an anonymous speaker can be enforced. Lastly, it should adopt a new “unveiling standard” similar to the standards used in either Dendrite or Cahill. Part II examines the jurisprudential history of identifying anonymous Internet speakers in defamation …

Negotiating Federalism And The Structural Constitution: Navigating The Separation Of Powers Both Vertically And Horizontally (A Response To Aziz Huq), Erin Ryan

Erin Ryan

This essay explores the emerging literature on the negotiation of structural constitutional governance, to which Professor Aziz Huq has made an important contribution in The Negotiated Structural Constitution, 114 Colum. L. Rev. 1595 (2014). In the piece, Professor Huq reviews the negotiation of constitutional entitlements and challenges the conventional wisdom about the limits of political bargaining as a means of allocating authority among the three branches of government. He argues that constitutional ambiguities in the horizontal allocation of power are sometimes best resolved through legislative-executive negotiation, just as uncertain grants of constitutional authority are already negotiated between state and federal …

New York Times V. Sullivan And The Rhetorics Of Race: A Look At The Briefs, Oral Arguments, And Opinions, Carlo A. Pedrioli

Carlo A. Pedrioli

Given the strife of the Civil Rights Movement that surrounded the case, this article looks back at the use of race in New York Times v. Sullivan. Specifically, the article examines how the advocates, led by Herbert Wechsler for the Times, I. H. Wachtel, William Rogers, and Samuel Pierce for the four ministers, and Roland Nachman for Sullivan, dealt with race in their rhetorics to the Court, both in their merits briefs and their oral arguments, and also how the justices used race in their opinions. Although Justice William Brennan did not explicitly focus on race in his opinion for …

The Legacy Of Anthony M. Kennedy, Adam Lamparello

Adam Lamparello

The defining moments in Justice Kennedy’s tenure on the Court came in Planned Parenthood, Lawrence, and United States v. Windsor, where the Court did to the Constitution—in the name of liberty—what it also did—in the name of democracy—to Florida’s citizens in Bush v. Gore. In all three cases, Justice Kennedy’s reliance on a broad conception of liberty, rather than equal protection principles, shifted the balance too heavily in favor of judicial, rather democratic, creation of unenumerated fundamental rights.

Justice Kennedy will rightly be celebrated for safeguarding reproductive freedom and championing sexual autonomy for same-sex couples, but underneath the black …

Religious Freedom & Closely Held Corporations: The Hobby Lobby Case & Its Ethical Implications, Corey A. Ciocchetti

Corey A Ciocchetti

Hobby Lobby and its quest for religious freedom captured the attention of a nation for a few moments in late June 2014. The country homed in on the Supreme Court as the justices weighed the rights of an incorporated, profit-making entity run by devout individuals that objected to particular entitlements granted to women under the Affordable Care Act. The case raised important legal issues such as whether the law allows for-profit corporations to exercise religion (yes!) and whether protection for religious freedom trumps the rights of third parties to cost free preventive care (sort of!). The Supreme Court’s decision also …

Standardized Testing And Race: A Reply To Professor Subotnik, Harvey Gilmore

Harvey Gilmore

Professor Gilmore responds in disagreement to Professor Subotnik's article supporting standardized testing.

"God Hates Fags" Isn't The Same As "Fuck The Draft": Introducing The Non-Sexual Obscenity Doctrine, Adam Lamparello

Adam Lamparello

No abstract provided.

Good Faith Discrimination, Girardeau A. Spann

Girardeau A Spann

Good Faith Discrimination Girardeau A. Spann Abstract The Supreme Court’s current doctrinal rules governing racial discrimination and affirmative action are unsatisfying. They often seem artificial, internally inconsistent, and even conceptually incoherent. Despite a long and continuing history of racial discrimination in the United States, many of the problems with the Supreme Court’s racial jurisprudence stem from the Court’s willingness to view the current distribution of societal resources as establishing a colorblind, race-neutral baseline that can be used to make equality determinations. As a result, the current rules are as likely to facilitate racial discrimination as to prevent it, or to …