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Constitutional Law

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Fordham Law School

2004

Articles 1 - 8 of 8

Full-Text Articles in Law

How Much Protection Do Injunctions Against Enforcement Of Allegedly Unconstitutional Statutes Provide?, Vikram David Amar Jan 2004

How Much Protection Do Injunctions Against Enforcement Of Allegedly Unconstitutional Statutes Provide?, Vikram David Amar

Fordham Urban Law Journal

This essay addresses the unresolved effects of preliminary injunctions issued by federal district courts in response to legislation that is possibly unconstitutional. More problematically, set against the backdrop of the "Partial Birth Abortion Ban Act of 2003," the essay asks whether an individual who violates the contested statute after receiving a preliminary injunction from a federal district court may be prosecuted if the statute is later upheld as constitutional. The essay analyzes competing arguments by Justice Stevens and Justice Marshall in Edgar v. MITE Corp., which involved a federal preliminary injunction against enforcement of a state statute. Siding with Justice …

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Winter Count: Taking Stock Of Abortion Rights After Casey And Carhart, Caitlin E. Borgmann Jan 2004

Winter Count: Taking Stock Of Abortion Rights After Casey And Carhart, Caitlin E. Borgmann

Fordham Urban Law Journal

This article outlines the current landscape of the constitutional right to abortion established in Roe v. Wade. Analyzing the court's holdings in Planned Parenthood v. Casey and Stenberg v. Carhart, the author details the ways in which recognition of a government interest in potential life at any stage in a pregnancy, as well as the lofty "undue burden" standard in analyzing policies that hinder access to abortion, have eroded this right. Finally, the author stresses the Supreme Court cases' disparate impact on the abortion rights of low-income and rural dwelling women.

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Is There A First Amendment Defense For Bush V. Gore , Abner S. Greene Jan 2004

Is There A First Amendment Defense For Bush V. Gore , Abner S. Greene

Faculty Scholarship

Could so many well-established scholars be wrong? Is it possible that Bush v. Gore is defensible, after all? The two pillars of the decision-the Equal Protection Clause justification for the merits holding and the "safe harbor" remedial ruling - indeed seem weak. The alternative merits view-that the Florida Supreme Court had engaged in statutory amendment under the guise of statutory interpretation, thus violating Article II of the federal Constitution-runs aground against the plausible (albeit not necessarily correct) readings of the state high court. If one agrees that these merits and remedial arguments are indefensible, then mustn't one agree with the …

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Supreme Court Of The United States As Quasi-International Tribunal: Reclaiming The Court's Original And Exclusive Jurisdiction Over Treaty-Based Suits By Foreign States Against States, The, Thomas H. Lee Jan 2004

Supreme Court Of The United States As Quasi-International Tribunal: Reclaiming The Court's Original And Exclusive Jurisdiction Over Treaty-Based Suits By Foreign States Against States, The, Thomas H. Lee

Faculty Scholarship

The thesis of this Article is that the Constitution vests in the Supreme Court original and exclusive jurisdiction over suits brought by foreign states against States alleging violation of ratified treaties of the United States. The basis for non-immunity in suits by foreign states is the same theory of ratification consent that is presumed to justify suits against States by other States or the United States. Just as the States by ratifying the Constitution agreed to suits in the national court by other States and the national sovereign to ensure domestic peace, they agreed to suits by foreign states in …

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What Lawrence V. Texas Says About The History And Future Of Reproductive Rights, Cynthia Dailard Jan 2004

What Lawrence V. Texas Says About The History And Future Of Reproductive Rights, Cynthia Dailard

Fordham Urban Law Journal

This article explores the ways in which the court's recognition of a broad zone of personal liberty in Lawrence v. Texas may serve to strengthen a woman's constitutionally protected reproductive rights in future Supreme Court decisions. Part of the author's analysis focuses on using particular Justices' opinions (and dissents) to predict the direction of future challenges to abortion rights in front of the Supreme Court.

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Lethal Experimentation On Human Beings: Roe's Effect On Bioethics, William L. Saunders, Jr. Jan 2004

Lethal Experimentation On Human Beings: Roe's Effect On Bioethics, William L. Saunders, Jr.

Fordham Urban Law Journal

Beginning with the assumption that human life begins at conception, this article explores the problematic terrain accompanying embryonic stem cell research and human cloning. "Lethal Experimentation on Human Beings," as enumerated in the article's title, refers to experimentation on and the removal of stem cells from human embryos, both of which "kill" a human being. The article warns that the holding in Roe v. Wade, which recognizes only a qualified government interest in unborn life, has obscured a pressing need for proponents of embryonic stem cell research to prove why society's interest in this research outweighs the rights of the …

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Writing On The Wall Of Separation: Understanding The Public Posting Of Religious Duties And Sectarian Versions Of Sacred Texts As An Establishment Clause Violation In Ten Commandment Cases, David C. Pollack Jan 2004

Writing On The Wall Of Separation: Understanding The Public Posting Of Religious Duties And Sectarian Versions Of Sacred Texts As An Establishment Clause Violation In Ten Commandment Cases, David C. Pollack

Fordham Urban Law Journal

This Note seeks an answer to the question of whether public displays of the Ten Commandments violate the Establishment Clause of the Constitution. In analyzing this question the author first explains the language of the traditional and American hybrid form of the Decalogue. From there, the author describes the three part standard the Supreme Court adopted in Lemon v. Kurtzman to analyze possible violations of the Establishment Clause. Once this framework is in place, the Note lays out how courts have split in their determinations of whether public displays of the Ten Commandments, both the traditional and hybrid models, is …

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Casey And Its Impact On Abortion Regulation, Michael F. Moses Jan 2004

Casey And Its Impact On Abortion Regulation, Michael F. Moses

Fordham Urban Law Journal

Given the Supreme Court's shift from a strict scrutiny standard to an "undue burden" standard in Planned Parenthood v. Casey, this article advocates for application of the standard in a way that is deferential to state legislatures. The author finds a number of problems with the holding in Casey for which it seeks judicial and legislative action: the undue burden standard is vague; it is unclear whether the burden should be upon everyone or "some people"; and the holding allows court to strike laws that have not gone into effect, therefore evidence of their impact is "speculative."

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