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- James R. May (4)
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Articles 1 - 27 of 27
Full-Text Articles in Law
Los Recursos Impugnatorios Y El Amparo Contra Resoluciones Judiciales En Perú: Un Análisis Funcional, Óscar Sumar
Los Recursos Impugnatorios Y El Amparo Contra Resoluciones Judiciales En Perú: Un Análisis Funcional, Óscar Sumar
Oscar Súmar
No abstract provided.
Critical Error, Bryan L. Adamson
Critical Error, Bryan L. Adamson
Bryan L Adamson
Critical Error raises a novel double standard: while fact-specific trial court findings of actual malice are reviewed under the “independent judgment” standard (a wholesale re-weighting of the trial court record and decision) on appeal, intentional race discrimination findings are reviewed under the far more deferential Federal Rule of Civil Procedure 52 clear error standard. Both legal concepts are arrived at through assessing state-of-mind determinations; both directly trigger constitutional proscriptions. Only actual malice, however, is classified as a constitutional fact, thus taking it out of the more deferential standard of review. The Supreme Court has failed to clarify this important procedural …
The Court Says No To Incorporation Rebound: Virginia V. Moore, Morris B. Hoffman
The Court Says No To Incorporation Rebound: Virginia V. Moore, Morris B. Hoffman
Morris B. Hoffman
Abstract: “In this article, Judge Hoffman analyzes the history of incorporation and of the common law arrest authority, in an attempt to demonstrate that the actual manner in which incorporated rights have been thrust upon the states remains a controversial and difficult topic. The Court’s opinion this Term in Virginia v. Moore teaches us that it remains unwilling to re-examine incorporation’s federal hegemony, and in fact that it is so unwilling to re-open the wounds of incorporation that it will instead tolerate serious integrative problems when the Bill of Rights clashes with state common law that pre-dates the constitutional settlement.”
Boumediene V. Bush And Guantánamo, Cuba: Does The "Empire Strike Back"?, Ernesto A. Hernandez
Boumediene V. Bush And Guantánamo, Cuba: Does The "Empire Strike Back"?, Ernesto A. Hernandez
Ernesto A. Hernandez
Focusing on the U.S. Supreme Court decision in Boumediene v. Bush (2008) and the U.S. occupation of the Naval Station at Guantánamo Bay, Cuba, this article argues that the base’s legal anomaly heavily influences “War on Terror” detention jurisprudence. Anomaly is created by agreements between the U.S. and Cuba in 1903 and 1934. They affirm that the U.S. lacks sovereignty over Guantánamo but retains “complete jurisdiction and control” for an indefinite period; while Cuba has “ultimate sovereignty.” Gerald Neuman labels this as an anomalous zone with fundamental legal rules locally suspended. The base was chosen as a detention center because …
Guns And Speech Technologies: How The Right To Bear Arms Affects Copyright Regulations Of Speech Technologies, Edward Lee
Edward Lee
This Essay examines the possible effect the Supreme Court’s landmark Second Amendment ruling in District of Columbia v. Heller will have on future cases brought under the Free Press Clause. Based on the text and history of the Constitution, the connection between the two Clauses is undeniable, as the Heller Court itself repeatedly suggested. Only two provisions in the entire Constitution protect individual rights to a technology: the Second Amendment’s right to bear “arms” and the Free Press Clause’s right to the freedom of the “press,” meaning the printing press. Both rights were viewed, moreover, as preexisting, natural rights to …
Belonging And Empowerment: A New "Civil Rights" Paradigm Based On Lessons Of The Past, Rebecca E. Zietlow
Belonging And Empowerment: A New "Civil Rights" Paradigm Based On Lessons Of The Past, Rebecca E. Zietlow
Rebecca E Zietlow
ABSTRACT: Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, …
Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber
Looking Off The Ball: Constitutional Law And American Politics, Mark A. Graber
Mark Graber
“Looking Off the Ball” details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally …
Mistretta Versus Marbury: The Foundations Of Judicial Review, Maxwell L. Stearns
Mistretta Versus Marbury: The Foundations Of Judicial Review, Maxwell L. Stearns
Maxwell L. Stearns
No abstract provided.
Climate Change And The Political Question Doctrine, James R. May
Climate Change And The Political Question Doctrine, James R. May
James R. May
No abstract provided.
A Concise Guide To The Records Of The State Ratifying Conventions As A Source Of The Original Meaning Of The U.S. Constitution, Gregory E. Maggs
A Concise Guide To The Records Of The State Ratifying Conventions As A Source Of The Original Meaning Of The U.S. Constitution, Gregory E. Maggs
Gregory E. Maggs
Thousands of articles and hundreds of cases have cited the records of the state ratifying conventions to support claims about the original meaning of the Constitution. Anyone reading these sources needs to know what records exist, why they might provide evidence of the original meaning of the Constitution, and what weaknesses claims about the original meaning which rest on them might have. Yet despite frequent references to the records of the state ratifying conventions, and despite the widely accepted importance of these records, I suspect that many lawyers, judges, law clerks, and legal scholars feel inadequately prepared to make or …
Sometimes You Have To Go Backwards To Go Forwards: Judicial Review And The New National Security Exception To The Fourth Amendment, Sheerin N. Shahinpoor
Sometimes You Have To Go Backwards To Go Forwards: Judicial Review And The New National Security Exception To The Fourth Amendment, Sheerin N. Shahinpoor
Sheerin N. Shahinpoor
National security concerns have historically provided a strong basis for non-justiciable Executive Branch action; however, post 9/11, such actions have grown to encompass a greater number of American citizens' civil liberties. The federal judiciary's deferential treatment of national-security related conduct, particularly in the realm of suspicionless searches, occurs with dangerous frequency, and any semblance of meaningful review has been nearly eviscerated. The stakes involved in national security are weighty and, in many instances, present the courts with an artificial choice: uphold a potentially over-zealous suspicionless-search program but avoid danger, or strike down such a program in favor of civil liberties …
A Matter Of Life And Death: Statutory Authority Enabling Sobriety Checkpoints To Effectively Fulfill Their Public Safety Role, Christopher J. Bodnar
A Matter Of Life And Death: Statutory Authority Enabling Sobriety Checkpoints To Effectively Fulfill Their Public Safety Role, Christopher J. Bodnar
Christopher J Bodnar
In 1990, the United States Supreme Court upheld the use of sobriety checkpoints as a tool for combating the public safety hazard of drunk driving. Since then, thirty-nine states have authorized sobriety checkpoint use. Today, these checkpoints are largely ineffective in many states, because of judicial decisions holding that observation of a driver avoiding a sobriety checkpoint does not constitute reasonable suspicion to allow an officer to make an investigatory stop. Since sobriety checkpoints no longer effectively further the state’s substantial interest in public safety, the suspicionless stops made at these checkpoints are likely unconstitutional. This Note proposes a model …
Same Sex Marriage In Argentina, Martin Hevia, Ezequiel Spector
Same Sex Marriage In Argentina, Martin Hevia, Ezequiel Spector
Martin Hevia
In recent years, same sex marriage has become one of the hottest legal and political topics worldwide. Latinamerica is not an exception to that rule. Recently, in September 2007, the Argentine National Civil Court of Appeals rejected an injunction brought by a couple of two women that wanted to get married. In the injunction, they said that Art. 172 of the Argentine Civil Code – which requires that marriage be celebrated between individuals of different sex – is unconstitutional. According to the Court, however, the different sex requirement established by Art. 172 has an “objective and reasonable” justification”: the state’s …
Constitutional Climate Change In The Courts, James R. May
Constitutional Climate Change In The Courts, James R. May
James R. May
We have entered an interesting constitutional era, one in which a rising sea level will help to buoy a rising tide of climate litigation, the leading edge of which lies constitutional jurisprudence as applied to the political question doctrine, preemption, dormant commerce and compact clauses and standing. In 2007 most of it involves either state action (e.g., to regulate greenhouse gas emissions from new motor vehicles or require climate friendly energy production), or state causes of action (e.g., public or private nuisance). In 2007, the trend was toward dismissing climate-tort cases as presenting political questions. Notably, in Mass. v. EPA, …
The Lost Meaning Of The Jury Trial Right, Laura I. Appleman
The Lost Meaning Of The Jury Trial Right, Laura I. Appleman
Laura I Appleman
This article contends that the right to a criminal jury trial right was originally a community right, not an individual one as currently understood. Using original historical research, I show that even the Sixth Amendment jury trial right, which sounds grammatically like a right of the accused, is actually a restatement of the collective right in Article III. The central claim of this Article is that nothing in the Sixth Amendment was meant to change this historical understanding and confer an individual right on defendants. My reading of the historical jury right has many important implications in both sentencing law …
Free To Leave? An Empirical Look At The Fourth Amendment’S Seizure Standard, David K. Kessler
Free To Leave? An Empirical Look At The Fourth Amendment’S Seizure Standard, David K. Kessler
David K Kessler
Whether a person has been “seized” often determines if he or she receives Fourth Amendment protection. The Supreme Court has established a standard for identifying seizures: a person is seized when a reasonable person in his situation would not have felt free to leave or otherwise terminate the encounter with law enforcement. In applying that standard, today’s courts conduct crucial seizure inquiries relying only on their own beliefs about when a reasonable person would feel free to leave. Both the Court and scholars have noted that, though empirical evidence about whether people actually feel free to leave would help guide …
The Disaggregation Of Race And Class In United States Civil Rights Law, Rebecca Zietlow
The Disaggregation Of Race And Class In United States Civil Rights Law, Rebecca Zietlow
Rebecca E Zietlow
Despite the advances that African Americans have made in our country as a result of the Civil Rights movement of the 1960s, poverty stubbornly persists in communities of color throughout our country. Our current civil rights paradigm, which is rooted in the Equal Protection Clause, and prohibits intentional state discrimination on the basis of immutable characteristics, simply is not working. This article suggests an alternative approach, one based not solely in equality norms but in facilitating the belonging of outsiders in our society. The subordination of people of color in our society has never been just about race. Rather, racism …
Unconstitutional On Its Face, Robert Lipkin
Unconstitutional On Its Face, Robert Lipkin
Robert Justin Lipkin
No abstract provided.
No Scrutiny Whatsoever: Deconstitutionalization Of Poverty Law, Dual Rules Of Law, And Dialogic Default, Julie Nice
No Scrutiny Whatsoever: Deconstitutionalization Of Poverty Law, Dual Rules Of Law, And Dialogic Default, Julie Nice
Julie A. Nice
This article traces how the Supreme Court has deconstitutionalized Poverty Law by four departures from normal constitutional doctrine: first, by categorical immunization of “social or economic legislation”; second, by circumvention of normal suspect class or classification analysis; third, by application of rationality review in a reflexive manner to uphold governmental regulation; and fourth, by ratcheting down from the heightened scrutiny normally used for protection of established fundamental rights. In particular, she explores the historical emergence of judicial deference for “social or economic legislation,” and finds that Justice Douglas, who coined the phrase, specifically rejected deference for laws that disadvantaged poor …
What's Wrong With Judicial Supremacy? What's Right About Judicial Review?, Robert Lipkin
What's Wrong With Judicial Supremacy? What's Right About Judicial Review?, Robert Lipkin
Robert Justin Lipkin
Skepticism concerning the legitimacy of judicial review typically occurs without distinguishing between judicial review and judicial supremacy. The former gives the Court a say in evaluating the constitutionality of legislation and other government conduct. The latter gives the Court the final say over these matters. This Article defends the Court's role in judicial review but rejects the practice of judicial supremacy. The Article first critically examines some of the more important attempts to justify judicial supremacy and finds them wanting. It then explains why judicial review, as the practice of applying American political philosophical concepts such as federalism, the separation …
Are There General Principles Of Community Law Affecting Private Law?, Hans Henrik Lidgard, Xavier Groussot
Are There General Principles Of Community Law Affecting Private Law?, Hans Henrik Lidgard, Xavier Groussot
Hans Henrik Lidgard
No abstract provided.
Finding Shared Values In A Diverse Society: Lessons From The Intelligent Design Controversy, Alan E. Garfield
Finding Shared Values In A Diverse Society: Lessons From The Intelligent Design Controversy, Alan E. Garfield
Alan E Garfield
One of the nation’s more profound and volatile ideological divides is between fundamentalist religious adherents and secular members of society. This divide has been particularly salient in recent years as issues challenging traditional religious morality – abortion, gay marriage, and stem-cell research – have been exploited as wedge issues for political gain. In this Article, I join the efforts of other scholars to find a way to bridge the gap between religious and secular Americans. By focusing on one particularly contentious front in the religious-secular wars – the teaching of intelligent design – I am able to identify a value …
Climate Change, Constitutional Consignment, And The Political Question Doctrine, James R. May
Climate Change, Constitutional Consignment, And The Political Question Doctrine, James R. May
James R. May
Recently states and individuals have turned to federal common law causes of action to provide equitable and legal relief for climate change. Thus far, every federal court to consider these claims has held that they raise non-justiciable political questions consigned to the coordinate branches. These courts reason that federal courts lack jurisdiction over climate cases because climate change is textually committed elsewhere, there are no judicial standards to apply, and the elected branches have yet to render an initial policy determination about the subject. This article concludes that these courts either misapply or misapprehend the doctrine. It concedes that federal …
Constitutional Law: 2008 Annual Report, James R. May
Constitutional Law: 2008 Annual Report, James R. May
James R. May
No abstract provided.
The Reception Of The Echr In National Legal Orders, Alec Stone Sweet, Helen Keller
The Reception Of The Echr In National Legal Orders, Alec Stone Sweet, Helen Keller
Alec Stone Sweet
No abstract provided.
Proportionality Balancing And Global Constitutionalism, Alec Stone Sweet, Jud Mathews
Proportionality Balancing And Global Constitutionalism, Alec Stone Sweet, Jud Mathews
Alec Stone Sweet
No abstract provided.
‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson
‘Move On’ Orders As Fourth Amendment Seizures, Stephen E. Henderson
Stephen E Henderson
If a police officer orders one to move on, must the recipient comply? This article analyzes whether there is a federal constitutional right to remain, and in particular whether a police command to move on constitutes a seizure of the person for purposes of the Fourth Amendment. Although it is a close question, I conclude that the Fourth Amendment typically does not restrict a move on (MO) order, and that substantive due process only prohibits the most egregious such orders. It is a question of broad significance given the many legitimate reasons police might order persons to move on, as …