Open Access. Powered by Scholars. Published by Universities.®
- Institution
- Keyword
-
- Columbia Law Review (3)
- Constitution (3)
- Affirmative action programs (2)
- Constitutional law (2)
- Constitutional theory (2)
-
- Cultural pluralism (2)
- Discrimination (2)
- Equal Access Act (2)
- Equal protection (2)
- First amendment (2)
- Fourteenth Amendment (2)
- Noncurricular clubs (2)
- Public schools (2)
- Race discrimination (2)
- Religious clubs (2)
- State v. Oakley (2)
- Supreme Court (2)
- 527 organizations (1)
- Affirmative action (1)
- Al Odah (1)
- American constitutionalism (1)
- American law (1)
- Anthropology (1)
- Anti-sodomy laws (1)
- Article II (1)
- Bush v. Gore (1)
- Church and state (1)
- Cognitive linguistics (1)
- Cognitive theory (1)
- Combatant (1)
Articles 1 - 30 of 46
Full-Text Articles in Law
Three Strikes And You're Outside The Constitution: Will The Guantanamo Bay Alien Detainees Be Granted Fundamental Due Process?, Michael Greenberger
Three Strikes And You're Outside The Constitution: Will The Guantanamo Bay Alien Detainees Be Granted Fundamental Due Process?, Michael Greenberger
Faculty Scholarship
The United States Supreme Court has agreed to take up its first case arising from the War on Terror by hearing the consolidated appeals of two groups of foreign aliens who are or who had been detained at the United States Guantanamo Bay Naval Base, Cuba: Rasul v. Bush (No. 03-334) and Al Odah v. United States (No. 03-343). The cases stem from the United States' capture of several hundred prisoners in Afghanistan and Pakistan and their subsequent imprisonment at Guantanamo Bay. The prison began operation in January 2002, and approximately 90 detainees have been freed up to this time, …
Regulate, Don't Eliminate, 527s, Donald B. Tobin
Regulate, Don't Eliminate, 527s, Donald B. Tobin
Faculty Scholarship
No abstract provided.
Not For Attribution: Government's Interest In Protecting The Integrity Of Its Own Expression, Helen L. Norton
Not For Attribution: Government's Interest In Protecting The Integrity Of Its Own Expression, Helen L. Norton
Faculty Scholarship
Public entities increasingly maintain that the First Amendment permits them to ensure that private speakers’ views are not mistakenly attributed to the government. Consider, for example, Virginia’s efforts to ban the Sons of Confederate Veterans’ display of the Confederate flag logo on state-sponsored specialty license plates. Seeking to remain neutral in the ongoing debate over whether the Confederate flag is a symbol of “hate” or “heritage,” Virginia argued that the state would be wrongly perceived as endorsing the flag if the logo appeared on a state-issued plate adorned by the identifier “VIRGINIA.” The Fourth Circuit was unpersuaded, holding that the …
Lawrence's Republic, James E. Fleming
Lawrence's Republic, James E. Fleming
Faculty Scholarship
I am delighted and honored to participate in this symposium critiquing and celebrating the remarkable scholarship of Frank Michelman. I was a student of Frank-but of course we all are students of Frank. I also have had the good fortune to be a colleague of Frank-he has been a distinguished visiting professor at Fordham and has generously participated in a number of our conferences there. The only problem I had in preparing for the symposium is that Frank's scholarship is so rich and wide-ranging that it was difficult to decide what to write about. I initially planned to write a …
Securing Deliberative Democracy, James E. Fleming
Securing Deliberative Democracy, James E. Fleming
Faculty Scholarship
The brochure for the conference frames the questions for our panel on The Constitutional Essentials of Political Liberalism as "What are the implications of Rawls's conceptions of justice as fairness and political liberalism for constitutional theory? Might his account of constitutional essentials provide a useful guiding framework for conceiving the scheme of basic liberties embodied in the American Constitution? How thin are the commitments of our Constitution as compared with our richer commitments to constitutional justice and political justice? What are the implications of Rawls's work for theory of judicial review and for enforcement of constitutional rights and obligations outside …
Court, Congress And Equal Protection: What Brown Teaches Us About The Section 5 Power, William D. Araiza
Court, Congress And Equal Protection: What Brown Teaches Us About The Section 5 Power, William D. Araiza
Faculty Scholarship
No abstract provided.
Introduction: What Does Oakley Tell Us About The Failures Of Constitutional Decision-Making?, Taylor Flynn
Introduction: What Does Oakley Tell Us About The Failures Of Constitutional Decision-Making?, Taylor Flynn
Faculty Scholarship
The Wisconsin Supreme Court's decision in State v. Oakley, in which the court upheld a probation order prohibiting Mr. Oakley from fathering additional children until he could support them, is a compelling example of a troubling flaw in our constitutional jurisprudence. Absent the countervailing check perhaps provided by the doctrine of unconstitutional conditions, each path of doctrinal analysis, considered separately, arguably leads to the conclusion that the probation order is valid. This is so even though a number of institutional, structural, and process-based considerations converge to render the order's constitutionality highly suspect. The prevailing doctrinal approach is to disaggregate the …
First Amendment Decisions - 2002 Term, Joel Gora
First Amendment Decisions - 2002 Term, Joel Gora
Faculty Scholarship
No abstract provided.
The Equal Access Act: Still Controversial After All These Years, Leora Harpaz
The Equal Access Act: Still Controversial After All These Years, Leora Harpaz
Faculty Scholarship
Over its twenty-year history, the Equal Access Act has continued to spark controversy. Despite a large number of court decisions that have interpreted the scope of the statute, those controversies have not yet subsided nor are they likely to for the foreseeable future. Interpretation of the Equal Access Act is complicated by ambiguities in the statute's language and the complex relationship that exists between the statute and the First Amendment's prohibition on religious establishments combined with its protection for freedom of expression. The delicate constitutional balancing act that the statute attempts to accomplish complicates the task of statutory interpretation in …
The Equal Access Act: Still Controversial After All These Years, Leora Harpaz
The Equal Access Act: Still Controversial After All These Years, Leora Harpaz
Faculty Scholarship
Over its twenty-year history, the Equal Access Act has continued to spark controversy. Despite a large number of court decisions that have interpreted the scope of the statute, those controversies have not yet subsided nor are they likely to for the foreseeable future. Interpretation of the Equal Access Act is complicated by ambiguities in the statute's language and the complex relationship that exists between the statute and the First Amendment's prohibition on religious establishments combined with its protection for freedom of expression. The delicate constitutional balancing act that the statute attempts to accomplish complicates the task of statutory interpretation in …
Probation Restrictions Impacting The Right To Procreate: The Oakley Error, Jennifer L. Levi
Probation Restrictions Impacting The Right To Procreate: The Oakley Error, Jennifer L. Levi
Faculty Scholarship
In State v. Oakley, the all-male four-justice majority held that a probation condition restricting David Oakley's right to have children passed constitutional muster. This Article discusses this question of the appropriate approach to evaluating the constitutionality of probation conditions. The Wisconsin Supreme Court's approach is compared to that of other courts in cases involving, in some way, decisions limiting a probationer's right to have children. The Author concludes that regardless of what constitutional standard or degree of scrutiny courts apply, cases can (and do) go both ways with respect to upholding or striking down probation restrictions on fundamental rights. However, …
In Praise Of A Skeletal Apa: Judicial Discretion, Remedies For Agency Inaction And Apa Amendment, William D. Araiza
In Praise Of A Skeletal Apa: Judicial Discretion, Remedies For Agency Inaction And Apa Amendment, William D. Araiza
Faculty Scholarship
No abstract provided.
The Sway Of The Swing Vote: Justice Sandra Day O'Connor And Her Influence On Issues Of Race, Religion, Gender And Class: Foreword, Paula A. Monopoli
The Sway Of The Swing Vote: Justice Sandra Day O'Connor And Her Influence On Issues Of Race, Religion, Gender And Class: Foreword, Paula A. Monopoli
Faculty Scholarship
No abstract provided.
Slaughter-House Five: Views Of The Case, David S. Bogen
Slaughter-House Five: Views Of The Case, David S. Bogen
Faculty Scholarship
No abstract provided.
English Constitutionalism Circa 2005, Or, Some Funny Things Happened After The Revolution, Ernest A. Young
English Constitutionalism Circa 2005, Or, Some Funny Things Happened After The Revolution, Ernest A. Young
Faculty Scholarship
reviewing Adam Tompkins, Public Law (2003)
Principles To Guide The Office Of Legal Counsel, Walter E. Dellinger Iii, Christopher H. Schroeder, Dawn Johnsen, Randolph Moss, Joseph Guerra, Beth Nolan, Todd Peterson, Cornelia Pillar
Principles To Guide The Office Of Legal Counsel, Walter E. Dellinger Iii, Christopher H. Schroeder, Dawn Johnsen, Randolph Moss, Joseph Guerra, Beth Nolan, Todd Peterson, Cornelia Pillar
Faculty Scholarship
Former members of Office of Legal Counsel ("OLC") in the Department of Justice offer guidance for their successors. Among the document's recommendations are suggestions that the OLC "provide an accurate and honest appraisal of applicable law, even if that advice will constrain the administration’s pursuit of desired policies;" and "publicly disclose its written legal opinions in a timely manner, absent strong reasons for delay or nondisclosure."
Affirmative Action And Colorblindness From The Original Position, Guy-Uriel Charles
Affirmative Action And Colorblindness From The Original Position, Guy-Uriel Charles
Faculty Scholarship
In this Article, the author explores Grutter v. Bollinger from the vantage point of the colorblindness principle. He posits that the Grutter decision is noteworthy for two reasons. First, the Court rejected the argument that the Constitution is colorblind and that the classifications based on race are per se unconstitutional. Second, the Court explicitly recognized that racial categorizations are not all morally equivalent. The author uses classical liberalism as a heuristic for exploring whether the colorblindness argument is necessarily a moral imperative. He ultimately concludes that the Court adopted the correct approach in Grutter in rejecting the allure of the …
Overcoming Hiddenness: The Role Of Intentions In Fourth Amendment Analysis, Daniel B. Yeager
Overcoming Hiddenness: The Role Of Intentions In Fourth Amendment Analysis, Daniel B. Yeager
Faculty Scholarship
This Article rehearses a response to the problems posed to and by the Supreme Court's attempts to work out the meaning and operation of the word "search." After commencing Part II by meditating on the notion of privacy, I take up its relation to the antecedent suspicion or knowledge that Fourth-Amendment law requires as a justification for all privacy invasions. From there, I look specifically at that uneasy relation in Supreme Court jurisprudence, which has come to privilege privacy over property as a Fourth Amendment value. From there, Part III reviews the sources or bases that can tell us what …
In Defense Of Deference, Guy-Uriel Charles, Luis Fuentes-Rohwer
In Defense Of Deference, Guy-Uriel Charles, Luis Fuentes-Rohwer
Faculty Scholarship
No abstract provided.
Fire, Metaphor, And Constitutional Myth-Making, Robert L. Tsai
Fire, Metaphor, And Constitutional Myth-Making, Robert L. Tsai
Faculty Scholarship
From the standpoint of traditional legal thought, metaphor is at best a dash of poetry adorning lawyerly analysis, and at worst an unjustifiable distraction from what is actually at stake in a legal contest. By contrast, in the eyes of those who view law as a close relative of ordinary language, metaphor is a basic building block of human understanding. This article accepts that metaphor helps us to comprehend a court's decision. At the same time, it argues that metaphor plays a special role in the realm of constitutional discourse. Metaphor in constitutional law not only reinforces doctrinal categories, but …
Is There A First Amendment Defense For Bush V. Gore , Abner S. Greene
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 …
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 …
The New Formalism: Requiem For Tiered Scrutiny?, Calvin R. Massey
The New Formalism: Requiem For Tiered Scrutiny?, Calvin R. Massey
Faculty Scholarship
No abstract provided.
The Federal Role In Managing The Nation's Groundwater, John D. Leshy
The Federal Role In Managing The Nation's Groundwater, John D. Leshy
Faculty Scholarship
No abstract provided.
Natural Resources Policy In The Bush (Ii) Administration: An Outsider's Somewhat Jaundiced Assessment, John D. Leshy
Natural Resources Policy In The Bush (Ii) Administration: An Outsider's Somewhat Jaundiced Assessment, John D. Leshy
Faculty Scholarship
No abstract provided.
A Property Clause For The Twenty-First Century, John D. Leshy
A Property Clause For The Twenty-First Century, John D. Leshy
Faculty Scholarship
No abstract provided.
Interpretative Equality As A Structural Imperative (Or 'Pucker Up And Settle This!'), Gary S. Lawson
Interpretative Equality As A Structural Imperative (Or 'Pucker Up And Settle This!'), Gary S. Lawson
Faculty Scholarship
To serious students of the Constitution, Chief Justice Marshall's discussion of judicial review in Marbury v. Madison was about judicial equality-the power of the courts, co-equal to the similar powers of the legislative and executive departments, to construe and apply the Constitution in the course of their duties. To less serious students of the Constitution, Marbury was about judicial supremacy-the supposedly paramount power of courts to interpret and apply the Constitution in a fashion that binds other legal actors, including the legislative and executive departments and state officials.
The Section 5 Power After Tennessee V. Lane, William D. Araiza
The Section 5 Power After Tennessee V. Lane, William D. Araiza
Faculty Scholarship
No abstract provided.
"You Are Entering A Gay And Lesbian Free Zone": On The Radical Dissents Of Justice Scalia And Other (Post-) Queers – [Raising Questions About Lawrence, Sex Wars, And The Criminal Law], Bernard Harcourt
Faculty Scholarship
The most renowned substantive criminal law decision of the October 2002 Term, Lawrence v. Texas, will go down in history as a critical turning point in criminal law debates over the proper scope of the penal sanction. For the first time in the history of American criminal law, the United States Supreme Court has declared that a supermajoritarian moral belief does not necessarily provide a rational basis for criminalizing conventionally deviant conduct. The Court's ruling is the coup de grâce to legal moralism administered after a prolonged, brutish, tedious, and debilitating struggle against liberal legalism in its various criminal …
Parks As Gyms? Recreational Paradigms And Public Health In The National Parks, Jay D. Wexler
Parks As Gyms? Recreational Paradigms And Public Health In The National Parks, Jay D. Wexler
Faculty Scholarship
When scholars and policymakers think about the relationship between public health and environmental law and policy, they likely think first about controlling pollution and other toxic substances. As other articles have amply demonstrated, water pollution, air pollution, and other environmental toxins can have significant deleterious effects on the public's health. Scholars rightly pay serious attention to these relationships, and policymakers wisely devise methods and strategies to ameliorate the public health risks posed by these polluting substances.
Although pollution control might be the most obvious and important intersection between environmental policy and public health, legal and policy decisions regarding the management …