Law Commons^™

November 5, 2010: “Let The Free Market Reign”, Bruce Ledewitz

Hallowed Secularism

Blog post, ““Let the Free Market Reign”“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

November 3, 2010: Pat Tommey A Citizens United Victory, Bruce Ledewitz

Hallowed Secularism

Blog post, “Pat Tommey a Citizens United Victory“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Judging Myopia In Hindsight: Bivens Actions, National Security Decisions, And The Rule Of Law, Peter Margulies

Law Faculty Scholarship

Liability in national security matters hinges on curbing both official myopia and hindsight bias. The Framers knew that officials could be short-sighted, prioritizing expedience over abiding values. Judicial review emerged as an antidote to myopia of this kind. However, the Framers recognized that ubiquitous second-guessing of government decisions would also breed instability. Balancing these conflicting impulses has produced judicial oscillation between intervention and deference. Recent decisions on Bivens claims in the war on terror have defined extremes of deference or intervention. Cases like Ashcroft v. Iqbal and Arar v. Ashcroft display a categorical deference that rewards officials' myopia. On the …

"The People" Of The Second Amendment: Citizenship And The Right To Bear Arms, Pratheepan Gulasekaram

Faculty Publications

The Supreme Court's recent Second Amendment decision, District of Columbia v. Heller asserts that the Constitution's right to bear arms is an individual right to armed self-defense held by law-abiding “citizens.” This Article examines the implications of this description, concluding that the Second Amendment cannot concurrently be a right of armed self-defense and restricted to citizens. The Article proceeds in three parts. First, it analyzes the term "the people" as it has been interpreted in recent Court cases. The Article concludes that constitutional text and Supreme Court jurisprudence provide no sustainable basis to believe the Second Amendment is limited …

Reconceptualizing The Fifth Amendment Prohibition Of Adverse Comment On Criminal Defendants' Trial Sentence, Jeffrey Bellin

Faculty Publications

Griffin v. California holds that the Fifth Amendment privilege against compelled self-incrimination prohibits a prosecutor from arguing that a defendant’s failure to testify supports an inference of guilt. In the four decades since Griffin was decided, Griffin’s doctrinal underpinnings have been strongly criticized by prominent jurists and commentators, and even Griffin’s contemporary defenders struggle to place the constitutional prohibition of adverse comment on defendant silence within a coherent doctrinal framework.

In light of these largely unanswered criticisms, this Article posits that the current Fifth Amendment-based prohibition of adverse comment is untenable and must be recast in a more narrowly tailored …

Teens, Porn, And Video Games: Is It Time To Rethink Ginsberg?, John A. Humbach

Elisabeth Haub School of Law Faculty Publications

This term the Supreme Court will decide whether states can constitutionally ban sales of violent videogames to minors. In reaching its decision, the Court will inevitably be faced with how to deal with Ginsberg v. New York, the case that allowed states to forbid sales of non-obscene (constitutionally "protected") pornography to persons under age 17.

The opinion in Ginsberg, if not the result, is an odd duck in First Amendment jurisprudence. It is a case that applied "rational basis" review in an area where the Supreme Court now insists on strict scrutiny. But the Court predicated its use of rational …

Uncertainties Remain For Judicial Takings Theory, Timothy M. Mulvaney

Faculty Scholarship

The U.S. Supreme Court waded into the waters of judicial takings last summer with a divided opinion that effectively carries no precedential value but is likely to have lower courts and property scholars trying to decipher its meaning for many years to come.

In Stop the Beach Renourishment, Inc. v. Florida Department of Environment Protection, 130 S. Ct. 2592 (2010), the Court decided that some Florida gulf-front property owners are not entitled to compensation under the federal Constitution’s Takings Clause when a state beach restoration project separates their private property from the water’s edge. Although the state prevailed in this …

October 31, 2010: Why I Wish No One Had Gone To The Stewart/Colbert Rally, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why I Wish No One Had Gone to the Stewart/Colbert Rally“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 28, 2010: Is Islam A Religion Of Peace?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Is Islam a Religion of Peace?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Mcdonald V. Chicago: Which Standard Of Scrutiny Should Apply To Gun-Control Laws?, Lawrence Rosenthal, Joyce Lee Malcolm

NULR Online

In this debate, Professors Rosenthal and Malcolm debate the standard of scrutiny that the Supreme Court should apply to restrictions on the Second Amendment in the wake of its recent decision, McDonald v. City of Chicago. Professor Rosenthal begins Part I by noting the importance of gun-control laws to police; he considers a lower standard of scrutiny necessary to allow law enforcement officials to protect the community. Turning to the practical consequences of Chicago and Washington, D.C.'s recent gun-control laws, which make owning a gun nearly impossible in those cities, Professor Malcolm argues for a standard of strict scrutiny …

October 25, 2010: Why Are The Democrats Doing So Badly?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why Are the Democrats Doing So Badly?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Privacy Torts: Unreliable Remedies For Lgbt Plaintiffs, Anita L. Allen

All Faculty Scholarship

In the United States, both constitutional law and tort law recognize the right to privacy, understood as legal entitlement to an intimate life of one’s own free from undue interference by others and the state. Lesbian, gay, bisexual, and transgender (“LGBT”) persons have defended their interests in dignity, equality, autonomy, and intimate relationships in the courts by appealing to that right. In the constitutional arena, LGBT Americans have claimed the protection of state and federal privacy rights with a modicum of well-known success. Holding that homosexuals have the same right to sexual privacy as heterosexuals, Lawrence v. Texas symbolizes the …

October 20, 2010: What Does Altruism Tell Us About The Nature Of The Universe?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Does Altruism Tell Us About the Nature of the Universe?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 17, 2010: Woody Allen’S Hell, Bruce Ledewitz

Hallowed Secularism

Blog post, “Woody Allen’s Hell“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Can Congress Ban People From Threatening To Burn The Quran? Yes: No Rights Are Absolute, Especially Amid Legitimate Safety Issues, Jessica D. Gabel

Faculty Publications By Year

No abstract provided.

October 14, 2010: Why Is Snyder V. Westboro Baptist Church A Free Speech Case?, Bruce Ledewitz

Hallowed Secularism

Blog post, “Why is Snyder v. Westboro Baptist Church a free speech case?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 9, 2010: What Will Future Secularism Be Like?, Bruce Ledewitz

Hallowed Secularism

Blog post, “What Will Future Secularism Be Like?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

October 5, 2010: Sam Harris And Objective Morality, Bruce Ledewitz

Hallowed Secularism

Blog post, “Sam Harris and Objective Morality“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Oral Dissenting On The Supreme Court, Christopher W. Schmidt, Carolyn Shapiro

All Faculty Scholarship

In this Article we offer the first comprehensive evaluation of oral dissenting on the Supreme Court. We examine the practice in both historical and contemporary perspective, take stock of the emerging academic literature on the subject, and suggest a new framework for analysis of oral dissenting. Specifically, we put forth several claims. Contrary to the common assumption of scholarship and media coverage, oral dissents are nothing new. Oral dissenting has a long tradition, and its history provides valuable lessons for understanding the potential and limits of oral dissents today. Furthermore, not all oral dissents are alike. Dissenting Justices may have …

A Modest Appeal For Decent Respect, Jessica Olive, David C. Gray

Faculty Scholarship

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits imposing a sentence of life in prison without the possibility of release for nonhomicide crimes if the perpetrator was under the age of eighteen at the time of his offense. In so holding, Justice Kennedy cited foreign and international law to confirm the Court’s independent judgment. In his dissent, Justice Thomas recited now-familiar objections to the Court’s reliance on these sources. Those objections are grounded in his originalist jurisprudence. In this short invited essay, which expands on prior work, we argue that Justice Thomas should abandon these …

Religious Exemption Or Exceptionalism? Exploring The Tension Of First Amendment Religion Protections & Civil Rights Progress Within The Employment Non-Discrimination Act, Richael Faithful

Articles in Law Reviews & Journals

The District of Columbia (D.C.) marked a landmark civil rights achievement in December 2009 when the city passed the Religious Freedom and Civil Marriage Equality Amendment Act. The law’s enactment allowed D.C. to become the sixth jurisdiction to sanction same-sex marriage in the United States. Supporters hailed the law as a victory for lesbian and gay equality, while detractors vowed that their efforts to traditionally define marriage would continue.

Among the most public opponents of the law was the Catholic Archdiocese of Washington, which operates Catholic Charities, a leading service provider to low-income residents in the metropolitan area. The Catholic …

Framing Change: Cause Lawyering, Constitutional Decisions, And Social Change, Mary Ziegler

Scholarly Publications

This article contends that current critics of change-oriented litigation assume a particular model of the relationship between law and social change: law is argued to mirror popular mores, and judicial decisions are thought at most to suppress unusual or outlying laws. This model is incomplete, because judicial decisions may help to change how a social cause is defined and labeled. In presenting a supplementary model, I argue that judicial decisions reframe debates, privileging some arguments, marginalizing others, altering the coalitions on either side and influencing the types of legal reform those coalitions are able to pursue.

A series of state …

Aliens On The Bench: Lessons In Identity, Race And Politics From The First "Modern" Supreme Court, Lori A. Ringhand

Scholarly Works

Every time a Supreme Court vacancy is announced, the media and the legal academy snap to attention. Even the general public takes note; in contrast to most of the decisions issued by the Court, a majority of Americans are aware of and have opinions about the men and women who are nominated to sit on it. Moreover, public opinion about the nominee has a strong influence on a senator's vote for or against the candidate. If the confirmation hearing held before the Senate Judiciary Committee is largely an empty ritual, why do so many people seem so enthralled by it? …

Constitutional Fiats: Presidential Legislation In India's Parliamentary Democracy, Shubhankar Dam

Research Collection Yong Pung How School Of Law

The article presents information on the presidential legislation of the parliamentary democracies, India and Pakistan. It discusses the role of the President acting as the Council of Ministers for the enactment of legislations as ordinances without the consent of the Parliament. Information on the legal interpretation of the ordinances and its interaction with the principles of the parliamentary system of the government is also presented.

Justice John Paul Stevens - His Take On Takings, Alan C. Weinstein

Law Faculty Articles and Essays

This commentary reviews and analyzes Justice John Paul Stevens's role in shaping the Court's views on the takings issue in land use regulation.

The Inconvenience Of A “Constitution [That] Follows The Flag … But Doesn’T Quite Catch Up With It”: From Downes V. Bidwell To Boumediene V. Bush, Pedro A. Malavet

UF Law Faculty Publications

Boumediene v. Bush, resolved by the U.S. Supreme Court in June of 2008, granted habeas corpus rights, at least for the time being, to the persons detained at Guantanamo Bay Naval Station. The majority partially based its ruling on the doctrine of the Insular Cases, first set forth in the 1901 decision in Downes v. Bidwell. Additionally, the four dissenting justices agreed with the five in the majority that the plurality opinion of Justice Edward Douglass White in Downes – as affirmed by a unanimous court in 1922 in Balzac v. People of Porto Rico – is still the dominant …

September 30, 2010: Ignorant Of Religion But Believing In God, Bruce Ledewitz

Hallowed Secularism

Blog post, “Ignorant of Religion but Believing in God“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Salazar V. Buono: The Perils Of Piecemeal Adjudication, Lisa Shaw Roy

NULR Online

The recent U.S. Supreme Court decision in Salazar v. Buono, a case involving a Latin cross placed on federal land in the Mojave Desert by the Veterans of Foreign Wars, approaches what many would assume to be the central issue in the case from an oblique. Does the Mojave Desert cross, sitting atop Sunrise Peak in a federal park preserve, violate the Establishment Clause of the First Amendment? Neither Justice Kennedy’s plurality opinion nor any of the concurring or dissenting opinions in Salazar answers that question. Salazar’s complicated web of facts and procedural history precluded the Court from …

September 25, 2010: The Religious Person Is One Who Is Open To The Call Of History, Bruce Ledewitz

Hallowed Secularism

Blog post, “The Religious Person is One who is Open to the Call of History“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.

Section 8: Federalism, Institute Of Bill Of Rights Law, William & Mary Law School

Supreme Court Preview

No abstract provided.