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Articles 1 - 30 of 168
Full-Text Articles in Law
Government Election Advocacy: Implications Of Recent Supreme Court Analysis, Steven J. Andre
Government Election Advocacy: Implications Of Recent Supreme Court Analysis, Steven J. Andre
Steven J. Andre
The constitutional issue presented by government partisanship in elections is becoming increasingly significant for review by the U.S. Supreme Court. The high Court’s decisions in Arizona Free Enterprise Club, Citizens United v. FEC and Pleasant Grove City v. Summum shed significant light on how the high Court would handle the government campaigning question if it should ever accept review on the issue. This article reviews lower court treatment of the problem and describes the U.S. Supreme Court’s analysis of election and First Amendment concerns and applies that analysis to the question of partisan government expenditures during election contests.
The New Due Process: Rights And Remedies, Doug R. Rendleman
The New Due Process: Rights And Remedies, Doug R. Rendleman
Doug Rendleman
This article discusses the "new" due process. Perhaps new is a misnomer. Due process was not discovered recently. It has been around a long time protecting varying interests from arbitrary action. The discovery called the "new" due process is merely that procedural protections are not so limited as previously thought. This article will examine the interests encompassed by the new due process and the remedial apparatus now being developed to protect those interests.
Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent, Doug Rendleman, Douglas Laycock
Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent, Doug Rendleman, Douglas Laycock
Doug Rendleman
Restitution may be a casualty in a collision with the constitutional law of standing. Article III is traditionally said to require an “injury in fact” for standing to be a plaintiff in federal court. Edwards, who alleges that First American paid a bribe or kickback in violation of the federal Real Estate Settlement Procedures Act, seeks to recover the statutory penalty. Defendant argues that even if it violated the Act, Edwards suffered no “injury in fact.” Our amicus brief in support of Edwards alerts the Supreme Court to the many restitutionary claims either for a wrongdoer’s profits or to set …
Such Gaming Causes Trouble: Constitutional And Statutory Confusion With The Indian Gaming Regulatory Act, Jacob Berman
Such Gaming Causes Trouble: Constitutional And Statutory Confusion With The Indian Gaming Regulatory Act, Jacob Berman
Jacob Berman
This paper argues that two circuits’ interpretations of the Indian Gaming Regulatory Act violate the Tenth Amendment by forcing a Hobson’s choice on state legislators. Since California v. Cabazon Band, Indian tribes have been able to operate commercial gaming establishments with the blessing of the federal judiciary. Immediately after Cabazon, Indian tribes could only offer the same types of gambling that was legal under state law— usually, bingo, lotteries, certain card games, and race tracks. The Indian Gaming Regulatory Act of 1988, intended to codify the Cabazon test, was poorly drafted, and instead upset the applecart. The Second Circuit and …
American Constitutionalism: Volume Ii: Rights & Liberties, Howard Gillman, Mark Graber, Keith Whittington
American Constitutionalism: Volume Ii: Rights & Liberties, Howard Gillman, Mark Graber, Keith Whittington
Mark Graber
Constitutionalism in the United States is not determined solely by decisions made by the Supreme Court. Moving beyond traditional casebooks, renowned scholars Howard Gillman, Mark A. Graber, and Keith E. Whittington take a refreshingly innovative approach in American Constitutionalism. Organized according to the standard two-semester sequence--in which Volume I covers Structures of Government and Volume II covers Rights and Liberties--this text is unique in that it presents the material in a historical organization within each volume, as opposed to the typical issues-based organization.
Dred Scott, John San(D)Ford, And The Case For Collusion, David T. Hardy
Dred Scott, John San(D)Ford, And The Case For Collusion, David T. Hardy
David T. Hardy
Dred Scott v. John F. A. Sandford was one of the most critical cases in Supreme Court history, “an astonisher,” as Lincoln phrased it. In the “Opinion of the Court,” which was not actually the opinion of the Court (parts of it mustered only three votes), Chief Justice Taney stretched to insulate slavery in every way manageable. The ruling became instead an application of the “law of unintended consequences.” It led to the rise of Abraham Lincoln (who devoted much of his “House Undivided” speech to it), the destruction of Stephen Douglas’ presidential campaign (since it held his core position …
Cheer On Separation Of School, Religious Messages, Alan E. Garfield
Cheer On Separation Of School, Religious Messages, Alan E. Garfield
Alan E Garfield
No abstract provided.
Penn Central After 35 Years: A Three-Part Balancing Test Or A One-Strike Rule?, R. S. Radford
Penn Central After 35 Years: A Three-Part Balancing Test Or A One-Strike Rule?, R. S. Radford
R. S. Radford
Penn Central Transportation Co. v. City of New York has been called the “polestar” of regulatory taking jurisprudence. Yet after 35 years, there is still no consensus on whether Penn Central sets forth a three-part balancing test, or a "one strike, you're out" checklist. This article presents an empirical analysis of how Penn Central is actually applied in the federal courts, finding distinct differences in the application of the test across jurisdictions.
Takings And Transitions, Holly Doremus
The Constitutional Right To Education In India: Horizontal Dimensions, Shubhankar Dam
The Constitutional Right To Education In India: Horizontal Dimensions, Shubhankar Dam
Shubhankar Dam
No abstract provided.
Sacred Cows, Holy Wars, Kenneth Lasson
Sacred Cows, Holy Wars, Kenneth Lasson
Kenneth Lasson
ED COWS, HOLY WARS Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat By Kenneth Lasson Abstract In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights …
Trends In Gun Legislation: The Metamorphosis Of Our Second Amendment Rights, Matthew W. Loeser
Trends In Gun Legislation: The Metamorphosis Of Our Second Amendment Rights, Matthew W. Loeser
Matthew W Loeser
The United States Constitution, and more specifically the amendments to the Constitution, are often erroneously considered to be archaic relics of an earlier time of our country; rules that, despite instilling fundamental rights, are static documents that are frozen in time. This ideology, however, is far from reality. Much like our country, the amendments are in a constant state of flux, ever-changing and evolving to fit the advancements and changing needs of society. Although the wording of these amendments does not change, the way in which they are interpreted does, sometimes quite far from what the framers’ intent may have …
Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas
Escaping The Sporhase Maze: Protecting State Waters Within The Commerce Clause, Mark S. Davis, Michael Pappas
Michael Pappas
Eastern states, though they have enjoyed a history of relatively abundant water, increasingly face the need to conserve water, particularly to protect water-dependent ecosystems. At the same time, growing water demands, climate change, and an emerging water-oriented economy have intensified pressure for interstate water transfers. Thus, even traditionally wet states are seeking to protect or secure their water supplies. However, restrictions on water sales and exports risk running afoul of the Dormant Commerce Clause. This Article offers guidance for states, partciularly eastern states concerned with maintaining and improving water-dependent ecosystems, in seeking to restrict water exports while staying within the …
Police Can Stop You For Having A License Plate Bracket On Your Car, Beau James Brock, Rikki Weger
Police Can Stop You For Having A License Plate Bracket On Your Car, Beau James Brock, Rikki Weger
Beau James Brock
The Fourth Amendment must be protected from police excesses. Now, law enforcement is relying upon the most hyper-technical of violations to stop a vehicle. Both attorneys and judges must guard against the temptation that the ends will justify the means, only to find out later we sold out our freedom to the golden calf of drug interdiction.
Supreme Court Ponders Drug-Detection Dog's 'Sniff Test', Alan E. Garfield
Supreme Court Ponders Drug-Detection Dog's 'Sniff Test', Alan E. Garfield
Alan E Garfield
No abstract provided.
Affirmative Action In Education Weighed Again, Alan E. Garfield
Affirmative Action In Education Weighed Again, Alan E. Garfield
Alan E Garfield
No abstract provided.
A Submission To The New Zealand Government On The Plain Packaging Of Tobacco Products, Matthew Rimmer
A Submission To The New Zealand Government On The Plain Packaging Of Tobacco Products, Matthew Rimmer
Matthew Rimmer
EXECUTIVE SUMMARYThis submission draws upon a number of pieces of research and policy papers on the plain packaging of tobacco products including:1. Becky Freeman, Simon Chapman, and Matthew Rimmer, 'The Case for the Plain Packaging of Tobacco Products' (2008) 103 (4) Addiction 580-590.2. Matthew Rimmer, 'A Submission to the Senate Legal and Constitutional Committee on the Trade Marks Amendment (Tobacco Plain Packaging) Bill (Cth)', September 2011, https://senate.aph.gov.au/submissions/comittees/viewdocument.aspx?id=dabfcd75-9807-493f-bc99-4a7506bf493b3A. Matthew Rimmer, 'Tobacco's Mad Men Threaten Public Health', The Conversation, 23 September 2011, http://theconversation.edu.au/tobaccos-mad-men-threaten-public-health-34503B. Matthew Rimmer, 'Big Tobacco's Box Fetish: Plain Packaging at the High Court', The Conversation, 20 April 2012, https://theconversation.edu.au/big-tobaccos-box-fetish-plain-packaging-at-the-high-court-65183C. Matthew …
Ensayos Sobre Derecho Comparado Y Constitución, Teresa M. G. Da Cunha Lopes
Ensayos Sobre Derecho Comparado Y Constitución, Teresa M. G. Da Cunha Lopes
Teresa M. G. Da Cunha Lopes
No abstract provided.
The 2011-2012 Supreme Court Term: Decisions In Constitutional Law, Wilson Huhn
The 2011-2012 Supreme Court Term: Decisions In Constitutional Law, Wilson Huhn
Wilson R. Huhn
This presentation reviews the principal decisions of the Supreme Court in the field of Constitutional Law during the 2011-2012 Term of Court. The presentation primarily focuses on the Court's decisions involving the Arizona immigration law (SB 1070), the federal Stolen Valor Act, the "ministerial exception" to the anti-discrimination laws, and above all the Patient Protection and Affordable Care Act.
Property And Republicanism In The Northwest Ordinance, Matthew J. Festa
Property And Republicanism In The Northwest Ordinance, Matthew J. Festa
Matthew J. Festa
This Article shows that individual property rights held a central place in the republican ideology of the founding era by examining the Northwest Ordinance of 1787. Between the two predominant strains of founding-era political ideology—liberalism and republicanism—the conventional view holds that individual property rights were central to Lockean liberalism, but not to the republican political tradition, where property is thought to have played more of a communitarian role as part of promoting civic virtue and the common good. Republicanism has been invoked in modern debates, and its emphases are present in current ideas such as the important new theory of …
The Fight For Free Speech, Even If It's Offensive, Alan E. Garfield
The Fight For Free Speech, Even If It's Offensive, Alan E. Garfield
Alan E Garfield
No abstract provided.
What's Wrong With Us Political System?, Alan E. Garfield
What's Wrong With Us Political System?, Alan E. Garfield
Alan E Garfield
No abstract provided.
Ethnicity And The Constitution: Beyond The Black And White Binary Constitution, Juan F. Perea
Ethnicity And The Constitution: Beyond The Black And White Binary Constitution, Juan F. Perea
Juan F. Perea
No abstract provided.
Same-Sex Marriage Litigation Update - September 17, 2012, Wilson Huhn
Same-Sex Marriage Litigation Update - September 17, 2012, Wilson Huhn
Wilson R. Huhn
Same-sex marriage cases are reaching the federal circuit courts and may be heard by the Supreme Court in the near future. This presentation summarizes the status of same-sex marriage litigation.
Can He Legally Do That? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival
Can He Legally Do That? Does The President Have Directive Authority Over Agency Regulatory Decisions?, Robert V. Percival
Robert Percival
No abstract provided.
Crime Fighters And Border Guards: The Scottish Law Officers In Comparative Perspective, Iain Field
Crime Fighters And Border Guards: The Scottish Law Officers In Comparative Perspective, Iain Field
Iain Field
This article examines two ways in which the law officer role in Scotland has been affected by this ‘new constitutional wave’, and draws comparisons with the role of law officers in Australia and, where appropriate, other UK jurisdictions. The first is by virtue of s 57 of the Scotland Act 1998 (the ‘Scotland Act’), which has exposed the ‘acts of the Lord Advocate’ to judicial scrutiny and the requirements of the HRA and the ECHR. The second arises as a more general consequence of devolution, which imposes upon the Scottish Law Officers new functions with respect to the legislative and …
Robert, Sebelius, And Constitution Day, Kent Greenfield
Robert, Sebelius, And Constitution Day, Kent Greenfield
Kent Greenfield
No abstract provided.
When The Cheering (For Gideon ) Stops: The Defense Bar And Representation At Initial Bail Hearings, Douglas Colbert
When The Cheering (For Gideon ) Stops: The Defense Bar And Representation At Initial Bail Hearings, Douglas Colbert
Douglas L. Colbert
This article suggests that the absence of representation at the beginning of a State criminal prosecution must come to a screeching halt. The criminal defense bar should take a leadership role and dedicate Gideon's anniversary to making certain that an accused's right to the effective assistance of counsel begins at the initial bail hearing. Indeed, guaranteeing vigorous representation should be the defense bar's number one priority.
Habeas Verité, Lee B. Kovarsky
Habeas Verité, Lee B. Kovarsky
Lee Kovarsky
Three recent books from varied academic disciplines demonstrate that habeas is as much about power as it is about liberty - the power of some judges over other magistrates, the power of the judiciary over coordinagte governing institutions, and the power of dominant political coalitions ovefr the opposition.
Thomas Jefferson’S Establishment Clause Federalism, David E. Steinberg
Thomas Jefferson’S Establishment Clause Federalism, David E. Steinberg
David E. Steinberg
Thomas Jefferson’s Establishment Clause Federalism by David E. Steinberg
Abstract
According to mainstream legal analysis, Thomas Jefferson read the Establishment Clause as mandating a wall of separation between church and state. The Supreme Court has used this purported Jeffersonian interpretation as a basis for federal intervention into state religious regulation.
This view of Jefferson as an Establishment Clause separationist is not supported by the historical record. A belief in state's rights and limited federal government were Jefferson's most important tenets. Jefferson endorsed a Bill of Rights, which Jefferson and the anti-federalists viewed as a means of constraining federal power. After …