Law Commons^™

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 Separate But Unequal Constitution, Adam Lamparello, Charles E. Maclean

Adam Lamparello

The Constitution should not be a political chess match, and outcomes should not depend on the composition of the Supreme Court. The text’s written and unwritten mandates speak to a single value that should unite jurists of all interpretive persuasions: the people — not legislatures or courts — own the Constitution’s enumerated rights, and have a corresponding right to define those that are not enumerated. But those rights have not been fully realized because the Constitution has been applied in a separate — and unequal — manner.

The wealthy have increased access to the political process, the poor are disproportionately …

The Problem Of Thirst: The Right To Equality And The Unlawful Privatization Of Water, Kasari Jl Govender

Kasari JL Govender

The problem of thirst is a massive one, and a child dies every 15 seconds from disease related to lack of access to safe, clean water. Privatization is touted as the solution to water injustice, despite evidence that privatization of water services only increases water deprivation for the poorest citizens. This paper examines whether a privatized for-profit system of water access for personal use infringes the human right to water, and whether states have a legal responsibility to protect their citizens from any and all third party business interests in water. The problem of thirst is considered from the perspective …

Children's Oppression, Rights And Liberation, Samantha Godwin

Samantha Godwin

This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. In order to do this I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and …

Glimmers Of Hope: The Evolution Of Equality Rights Doctrine In Japanese Courts From A Comparative Perspective, Craig Martin

Craig Martin

There has been little study of the analytical framework employed by the Japanese courts in resolving constitutional claims under the right to be treated as an equal and not be discriminated against. In the Japanese literature the only comparative analysis done focuses on American equal protection jurisprudence. This article examines the development of the equality rights doctrine in the Japanese Supreme Court from the perspective of an increasingly universal “proportionality analysis” approach to rights enforcement, of which the Canadian equality rights jurisprudence is a good example, in contrast to the American approach. This comparative analysis, which begins with a review …

States Of Resistance: The Real Id Act And Constitutional Limits Upon Federal Deputization Of State Agencies In The Regulation Of Non-Citizens, Shirley Lin Esq.

Shirley Lin Esq.

Since the passage of the REAL ID Act in 2005, federal and state governments have clashed over implementation of the law's sweeping and prohibitively expensive changes to states' motorist licensing schemes. The REAL ID Act would affect all 56 U.S. jurisdictions and more than 240 million driver's license applicants or holders.The Article discusses the design flaws of the REAL ID Act within the context of the nation's traditional "immigration federalism" framework in regulating non-citizens, and evaluates the viability of legal challenges on the grounds of equal protection, due process, federalism principles, and international law.Part I discusses states’ authority over non-citizens …

Wild-West Cowboys Versus Cheese-Eating Surrender Monkeys: Some Problems In Comparative Approaches To Extreme Speech, Eric Heinze

Prof. Eric Heinze, Queen Mary University of London

All European states ban some form of hate speech. US law precludes such bans. In view of the political and symbolic importance of free speech, it becomes tempting to assume that trans-Atlantic differences towards hate speech reflect deeper cultural divisions.

However, we must pay attention to comparative methodology before drawing ambitious conclusions about cross-cultural social and political differences that derive solely from differences in formal, black-letter norms. In this volume, Robert Post claims that formal, constitutional requirements of content-neutral regulation reflect a freer public sphere in the US, in contrast to the European public sphere.

Yet a legal-realist approach casts …