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Full-Text Articles in Law

Can A Politician Block You On Social Media?, Alan E. Garfield Jul 2109

Can A Politician Block You On Social Media?, Alan E. Garfield

Alan E Garfield

No abstract provided.


All Things To All People, Part One, Peter J. Aschenbrenner Dec 2104

All Things To All People, Part One, Peter J. Aschenbrenner

Peter J. Aschenbrenner

Our Constitutional Logic has identified the fundamental predicate of Government I, which operated, more or less, under Constitution I, the Constutiton of the year One, as a disposable government. See The Standard Model at War, 17 OCL 350. if government asserts, affirmatively, that it is disposable, isn’t it also asserting that it can replicate its systems (= structures political society) at will? OCL builds on its assertion of political society as a three-goaled contrivance. See Why Do Political Societies Exist? 2 OCL 883. Isn’t such a government asserting the primacy of the needs of civil society? By offering to ...


Does The Second Amendment Protect Firearms Commerce?, David B. Kopel Apr 2104

Does The Second Amendment Protect Firearms Commerce?, David B. Kopel

David B Kopel

The Second Amendment protects the operation of businesses which provide Second Amendment services, including gun stores. Although lower federal courts have split on the issue, the right of firearms commerce is demonstrated by the original history of the Second Amendment, confirmed by the Supreme Court in District of Columbia v. Heller, and consistent with the Court's precedents on other individual rights.


How Do We Know When Political Societies Change?, Peter Aschenbrenner Jan 2104

How Do We Know When Political Societies Change?, Peter Aschenbrenner

Peter J. Aschenbrenner

Predicates, features, attributes and properties of a system are liable to change. How does the change get marked down? For this purpose what facet of a system should command our attention? Any system worth the name, Our Constitutional Logic argues, is aware of its own standing in civil society. OCL considers the issues raised.


The Impact Of Cultural Heritage On Japanese Towns And Villages, Yuichiro Tsuji Dr. Dec 2020

The Impact Of Cultural Heritage On Japanese Towns And Villages, Yuichiro Tsuji Dr.

Seattle Journal of Technology, Environmental & Innovation Law

In 1954, when historically significant clays and clay pots were found in the Iba district of Shizuoka prefecture, the city applied to the prefectural education committee for a historic site designation. The committee granted this designation to the city..

However, in 1973 the education committee lifted its permission to promote development around the location. Historians have sought revocation of this decision under the Administrative Case Litigation Act (ACLA), but the Supreme Court has denied standing. By denying standing, the Japanese Supreme Court allows the prefecture to destroy a historical site.

First, this paper seeks to discuss the doctrine of standing ...


Masthead Jul 2020

Masthead

Hastings Constitutional Law Quarterly

No abstract provided.


Neurodiversity In Public Schools: A Critique Of Special Education In America, Pallavi M. Vishwanath Jul 2020

Neurodiversity In Public Schools: A Critique Of Special Education In America, Pallavi M. Vishwanath

Hastings Constitutional Law Quarterly

This Note provides a comparative critique to the special education practices in the U.S. and Canada. The Note reasons that a country or democracy is most benefitted when there is a recognized governmental duty to maximize the potential of every student via public education. The Note further exposes how a difference in governmental duty to provide equal education drastically affects students’ dignity and potential. This Note describes the history of the American public education system; explains the development of special education in the United States and the ambiguous governmental duty to educate American students; and discusses Canadian case law ...


Worse Than Punishment: How The Involuntary Commitment Of Persons With Mental Illness Violates The United States Constitution, Samantha M. Caspar, Artem M. Joukov Jul 2020

Worse Than Punishment: How The Involuntary Commitment Of Persons With Mental Illness Violates The United States Constitution, Samantha M. Caspar, Artem M. Joukov

Hastings Constitutional Law Quarterly

This Article highlights that individuals who suffer from mental health problems can be particularly defenseless against an attack on their liberty through criminal and civil law. Specifically, it delineates how the current laws allow for a potential indefinite commitment of a person who may not have even committed a single crime. The Article explains that constitutionally mandated standards should be required to protect individuals who face losing their liberty due to the perceived threat of future harm. The authors posit that, while preventing individuals from harming themselves or others is an honorable goal, the state should only be able to ...


Comparative Cruelty: A Comparative Analysis Of The Eighth Amendment To The United States Constitution And Section Nine Of The New Zealand Bill Of Rights Act, Carrie Leonetti Jul 2020

Comparative Cruelty: A Comparative Analysis Of The Eighth Amendment To The United States Constitution And Section Nine Of The New Zealand Bill Of Rights Act, Carrie Leonetti

Hastings Constitutional Law Quarterly

Given that the United States Constitution and the New Zealand Bill of Rights Act both contain prohibitions against governmental acts of cruelty and torture, this Article offers a comparative analysis of the judicial interpretations of the meaning of “cruel” in the prohibition against cruel and unusual punishment in the two country’s founding documents. The Article beings by considering the shared historical underpinnings of the prohibitions, which require a proportionality analysis when assessing whether a punishment is excessive. Next, it examines the meaning of “cruelty” and the scope of the prohibitions in New Zealand and the United States. The Article ...


You Don’T Have To Pay The Troll Toll: Antitrust Violations Of Patent Assertion Entities And The Noerr-Pennington Doctrine “Sham Litigation” Exception, Katheryn M. Wenger Jul 2020

You Don’T Have To Pay The Troll Toll: Antitrust Violations Of Patent Assertion Entities And The Noerr-Pennington Doctrine “Sham Litigation” Exception, Katheryn M. Wenger

Hastings Constitutional Law Quarterly

This Note discusses the implications of possible antitrust violations when Patent Assertion Entities (“PAEs”) enforce their vast patent portfolios against alleged infringers by forcing a license of the entire portfolio or threatening continuous and costly litigation. This Note analyzes this PAE conduct under antitrust laws, using Intellectual Ventures I, LLC v. Capital One Financial Corp. as an exemplar case study. Further, the Note explains that PAEs are not immune to antitrust counterclaims under the Noerr-Pennington doctrine because their anticompetitive conduct meets the standard for the “sham litigation” exception to the doctrine. Ultimately, this Note offers preventative solutions to this PAE ...


Foreword, Wendy Melissa Hernandez Jul 2020

Foreword, Wendy Melissa Hernandez

Hastings Constitutional Law Quarterly

No abstract provided.


Policing The Wombs Of The World's Women: The Mexico City Policy, Samantha Lalisan Jul 2020

Policing The Wombs Of The World's Women: The Mexico City Policy, Samantha Lalisan

Indiana Law Journal

This Comment argues that the Policy should be repealed because it undermines

firmly held First Amendment values and would be considered unconstitutional if

applied to domestic nongovernmental organizations (DNGOs). It proceeds in four

parts. Part I describes the inception of the Policy and contextualizes it among other

antiabortion policies that resulted as a backlash to the U.S. Supreme Court’s

landmark decision in Roe v. Wade. Part II explains the Policy’s actual effect on

FNGOs, particularly focusing on organizations based in Nepal and Peru, and argues

that the Policy undermines democratic processes abroad and fails to achieve its ...


Failing To Keep The Cat In The Bag: A Decennial Assessment Of Federal Rule Of Evidence 502'S Impact On Forfeiture Of Legal Privilege Under Customary Waiver Doctrine, Jared S. Sunshine Jun 2020

Failing To Keep The Cat In The Bag: A Decennial Assessment Of Federal Rule Of Evidence 502'S Impact On Forfeiture Of Legal Privilege Under Customary Waiver Doctrine, Jared S. Sunshine

Cleveland State Law Review

Federal Rule of Evidence 502—providing certain exemptions from the surrender of attorney-client and work product privilege because a confidential item was disclosed—had great expectations to live up to after its enactment in 2008, as Congress and others heralded it as a panacea to litigation’s woes in the face of bourgeoning discovery. The enacted rule was the subject of much skepticism by the academic punditocracy, however. Ten years later, this Article surveys the actual results and finds that, regrettably, pessimism has proven the better prediction. Percolation of debate over the rule’s many ambiguities and courts’ disparate approaches ...


Private Affairs: Public Employees And The Right To Sexual Privacy, Susan A. Jacobsen Jun 2020

Private Affairs: Public Employees And The Right To Sexual Privacy, Susan A. Jacobsen

Cleveland State Law Review

Currently, the federal circuit courts split on whether public employers can discipline their employees for legal, off-duty sexual activity. The Fifth and Tenth Circuits permit discipline in these scenarios; the Ninth Circuit does not. At issue is whether certain public employees, like police officers, should be held to a higher standard because of their duty to the public or whether the Constitution entitles them to privacy rights that shield them from discipline. This Note concludes the latter and argues against punishing the legal, off-duty sexual conduct of all public employees. Because the right to sexual privacy already exists within the ...


Federal Protection For "Fur-Babies": A Legislative Proposal, Rebecca Ferrari Jun 2020

Federal Protection For "Fur-Babies": A Legislative Proposal, Rebecca Ferrari

Pepperdine Law Review

Americans love their animals, but America doesn’t protect them. Across the country, animals continue to be classified as mere property, undeserving of any basic rights and unprotected by the animal welfare statutes that do exist, but often remain unenforced. This Article proposes a comprehensive animal protection system that includes the following components: (a) general prohibitions against animal crushing, cruelty, neglect, and abuse; (b) a civil action provision that will allow humane society officers to investigate violations of those prohibitions; (c) a provision establishing animal legal advocates to work alongside the officers and prosecute violations; and (d) an animal-suit provision ...


Men's Reproductive Rights: A Legal History, Mary Ziegler Jun 2020

Men's Reproductive Rights: A Legal History, Mary Ziegler

Pepperdine Law Review

This Article offers the first legal history of men’s procreative rights, filling a gap in scholarship on assisted reproduction, constitutional law, and social movements. A rich literature addresses women’s procreative rights in contexts from abortion to infertility. By comparison, we know relatively little about the history of the debate about reproductive rights for men. This void is particularly troubling at a time when the law of reproductive rights is increasingly up for grabs, especially in the context of assisted reproduction technologies (ART). Men’s rights advocates—and the abortion-rights supporters responding to them—championed a jurisprudential approach to ...


The Guinea-Bissau Constitutional Reform Debate, Watson Aila Gomes Jun 2020

The Guinea-Bissau Constitutional Reform Debate, Watson Aila Gomes

All Dissertations, Theses, and Capstone Projects

The enactment of law is not to be confused with the rule of law, and simply having a constitution does not guarantee political order. In Guinea-Bissau there have been calls to write a new constitution, but whether that helps Guinea-Bissau become a more stable country is questionable. Currently, there is a gap in the research of social science, history and political science examining how the processes of instability have unfolded in Guinea-Bissau. Few studies attempt to examine the correlation between a country’s stability and its constitution. A paradoxical situation exists in many countries in Africa where the political system ...


Ascriptive Nationalism, Demagoguery, And The Modern Presidency: A Case Study In Constitutional Decay, Christopher J. Putney Jun 2020

Ascriptive Nationalism, Demagoguery, And The Modern Presidency: A Case Study In Constitutional Decay, Christopher J. Putney

All Dissertations, Theses, and Capstone Projects

This study is an account of the modern presidency as a source––and under Donald Trump, an accelerant––of systemic problems in American politics. Against the prevailing scholarly view of the Trump presidency as an unqualified aberration, I argue that the signal features of his efforts at governance are actually the product of converging patterns of political and institutional order. Building on seminal (but previously disjointed) work on ascriptive Americanism and the rhetorical presidency, I show that Trump represents the political synthesis of America’s ascriptive tradition and a form of presidential leadership inaugurated more than a century ago by ...


Artificial Entities With Natural Rights: Pursuing Profits At The Expense Of Human Capital, Loren M. Findlay May 2020

Artificial Entities With Natural Rights: Pursuing Profits At The Expense Of Human Capital, Loren M. Findlay

Washington and Lee Journal of Civil Rights and Social Justice

This Note explores the legal and constitutional rights granted to corporations and highlights how these corporate benefits are often at the expense of individuals. Over the past century, the corporation has evolved, taking on human-like characteristics. While many statutes and the Constitution use the word “person,” courts have inconsistently interpreted the definition of “person” in determining when it expands to corporations. In courts’ ad hoc analysis and interpretation, individuals get the metaphorical short-end of the stick.

The First Amendment of the Constitution was interpreted by the U.S. Supreme Court to afford the right of free speech to corporations in ...


Privacy's Constitutional Moment And The Limits Of Data Protection, Woodrow Hartzog, Neil Richards May 2020

Privacy's Constitutional Moment And The Limits Of Data Protection, Woodrow Hartzog, Neil Richards

Boston College Law Review

America’s privacy bill has come due. Since the dawn of the internet, Congress has repeatedly failed to build a robust identity for American privacy law. But now both California and the European Union have forced Congress’s hand by passing the California Consumer Privacy Act (CCPA) and the General Data Protection Regulation (GDPR). These data protection frameworks, structured around principles for fair information processing called the “FIPs,” have industry and privacy advocates alike clamoring for a “U.S. GDPR.” States seem poised to blanket the country with FIPs-based laws if Congress fails to act. The United States is thus ...


The Indiscretion Of Friends: Fourth Amendment Concerns About The Ability To Predict A Person’S Online Social Activity By Monitoring Her Contacts, George M. Dery Iii May 2020

The Indiscretion Of Friends: Fourth Amendment Concerns About The Ability To Predict A Person’S Online Social Activity By Monitoring Her Contacts, George M. Dery Iii

Minnesota Journal of Law, Science & Technology

No abstract provided.


Youth Suffrage: In Support Of The Second Wave, Mae C. Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens May 2020

Youth Suffrage: In Support Of The Second Wave, Mae C. Quinn, Caridad Dominguez, Chelsey Omega, Abrafi Osei-Kofi, Carlye Owens

Akron Law Review

The 19th Amendment is talked about as central to our nation’s suffrage story, with many situating women's suffrage work within feminist theory "wave" discourse. However, with this telling, scholars and others too frequently overlook young voters and efforts relating to their election law rights. This article seeks to remedy this oversight and complicate the voting rights canon, in addition to supporting efforts of today’s youth voting rights advocates. It does so by turning our attention to youth suffrage movements, which we argue also can be examined by way of a framework of "waves." The first to offer ...


Felony Disenfranchisement And The Nineteenth Amendment, Michael Gentithes May 2020

Felony Disenfranchisement And The Nineteenth Amendment, Michael Gentithes

Akron Law Review

The Nineteenth Amendment and the history of the women’s suffrage movement can offer a compelling argument against felony disenfranchisement laws. These laws leave approximately six million citizens unable to vote, often for crimes wholly unrelated to the political process. They also increasingly threaten gains in female enfranchisement.

Today’s arguments in support of felony disenfranchisement laws bear striking similarities to the arguments of anti-suffragists more than a century earlier. Both suggest that a traditionally subordinated class of citizens is inherently incapable of bearing the responsibility that the right to vote entails, and that their votes are somehow less worthy ...


The Nineteenth Amendment And The U.S. "Women's Emancipation Policy" In Post-World War Ii Occupied Japan: Going Beyond Suffrage, Cornelia Weiss May 2020

The Nineteenth Amendment And The U.S. "Women's Emancipation Policy" In Post-World War Ii Occupied Japan: Going Beyond Suffrage, Cornelia Weiss

Akron Law Review

This paper explores the influence of the Nineteenth Amendment on U.S. military occupation policy in Post-World War II Japan. A mere 25 years after the ratification of the Nineteenth Amendment, actions taken during the military occupation did not stop at suffrage for Japanese women. Actions included a constitution that provided for women’s “equality” (what, even 100 years after the ratification of the Nineteenth Amendment, is still absent in the U.S. constitution). In addition to addressing women’s suffrage and constitutional equality, this paper examines the successes and failures of the Occupation to eradicate the legal enslavement of ...


The Temperance Movement's Impact On Adoption Of Women's Suffrage, Richard H. Chused May 2020

The Temperance Movement's Impact On Adoption Of Women's Suffrage, Richard H. Chused

Akron Law Review

This paper examines the nature of the Progressive Era and the Prohibition Movement and the important links between the sentiments giving rise to prohibition and those stimulating adoption of suffrage. Though each arose from a somewhat distinct array of reform impulses and overcame varying opposition groups, they were closely related in some ways, supported by overlapping groups of people, advanced by large numbers of women, and, in part, lifted to enactment by similar motivations. Indeed, without the support of many conservative citizens approving both Amendments, it is not clear what the fate of suffrage would have been after World War ...


"A Woman Stumps Her State": Nellie G. Robinson And Women's Right To Hold Public Office In Ohio, Elizabeth D. Katz May 2020

"A Woman Stumps Her State": Nellie G. Robinson And Women's Right To Hold Public Office In Ohio, Elizabeth D. Katz

Akron Law Review

In recognition of the centennial of the Nineteenth Amendment, this essay provides an introduction to a largely overlooked yet essential component of the women’s movement: the pursuit of women’s legal right to hold public office. From the mid-nineteenth century through ratification of the federal suffrage amendment in 1920, women demanded access to appointed and elected positions, ranging from notary public to mayor. Because the legal right to hold office had literal and symbolic connections to the right to vote, suffragists and antisuffragists were deeply invested in the outcome. Courts and legislatures varied in their responses, with those in ...


Suffragist Prisoners And The Importance Of Protecting Prisoner Protests, Nicole B. Godfrey May 2020

Suffragist Prisoners And The Importance Of Protecting Prisoner Protests, Nicole B. Godfrey

Akron Law Review

This paper examines the role that public exposure to the conditions experienced by suffragist prisoners played in the passage of the Nineteenth Amendment. Using the experience of the suffragists as an example of how prisoner protest impacted democratic debate, the paper argues that robust protection of prisoners’ First Amendment rights is fundamental to the nation’s democratic values and political discourse and debate.

The paper begins with an historical overview of the arrests, convictions, and incarceration of the Silent Sentinels, women who began picketing outside the White House in 1917. Over the course of several months, local officials in the ...


Zarda And Sexual Orientation Expression: A New High For Title Vii Interpretation, Nico Ramos May 2020

Zarda And Sexual Orientation Expression: A New High For Title Vii Interpretation, Nico Ramos

Catholic University Law Review

Under current federal law, a majority of jurisdictions decline to extend Title VII protections based on sexual orientation; however, a growing number of circuits have reversed precedent and held that Title VII prohibits discrimination sexual orientation discrimination. The Second Circuit’s en banc decision in Zarda v. Altitude Express reached the conclusion that sexual orientation discrimination is as a cognizable claim under Title VII because in order to discriminate against a person sexual orientation, you naturally first have to take their gender into account. The Supreme Court granted certiorari and has now heard oral arguments.

Part I of this note ...


A Narrowing Field Of View: An Investigation Into The Relationship Between The Principles Of Treaty Interpretation And The Conceptual Framework Of Canadian Federalism, Joshua Ben David Nichols May 2020

A Narrowing Field Of View: An Investigation Into The Relationship Between The Principles Of Treaty Interpretation And The Conceptual Framework Of Canadian Federalism, Joshua Ben David Nichols

Osgoode Hall Law Journal

In its recent decisions in Tsilhqot’in Nation and Grassy Narrows, the Supreme Court of Canada has significantly altered the position of Indigenous peoples within the structure of Canadian federalism. This article sets out to investigate the basis for the Court’s jurisdiction to change this structure. Its approach is historical, as it covers judicial treaty interpretation from St Catherine’s Milling to Grassy Narrows. By contextualizing the most recent change in light of the last 250 years of treaty making, we can see how the notion of Crown sovereignty has become entangled with the Westphalian model of the state ...


Symposium: Pandemics And The Constitution: Federalism And Contagion: Reevaluating The Role Of The Cdc, Kyle J. Connors May 2020

Symposium: Pandemics And The Constitution: Federalism And Contagion: Reevaluating The Role Of The Cdc, Kyle J. Connors

ConLawNOW

The United States Government’s response to the coronavirus outbreak raises difficult questions of federalism. This essay argues for greater federal leadership and involvement to mount the most effective response to a pandemic. As history shows, a response led by local governments is vulnerable to collective action problems and political impediments. An improved response structure in a contagious disease event would include more federal leadership and policy dictated by the Centers for Disease Control (CDC), to be then effectuated by state and local governments. This power can be exercised either formally, through federal grants, or informally through the influence of ...