Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 10 of 10
Full-Text Articles in Law
The Paperless Chase: Electronic Voting And Democratic Values, Daniel P. Tokaji
The Paperless Chase: Electronic Voting And Democratic Values, Daniel P. Tokaji
The Ohio State University Moritz College of Law Working Paper Series
The 2000 election ignited a fierce controversy over the machinery used for voting. Civil rights advocates have called for the replacement of outdated paper-based voting equipment, like the infamous “hanging chad” punch card. Yet the introduction of paperless technology, especially electronic “touchscreen” machines, has induced widespread concern that software might be rigged to alter election results. This article examines the debate over electronic voting, which raises fundamental questions about the democratic values that should guide the administration of elections. It frames the debate by defining four equality norms embodied in federal voting rights laws and the Constitution. Electronic voting has …
Conceptualizing Blakely, Douglas A. Berman
Conceptualizing Blakely, Douglas A. Berman
The Ohio State University Moritz College of Law Working Paper Series
The Supreme Court’s decision in Blakely v. Washington has generated impassioned judicial and academic criticisms, perhaps because the “earthquake” ruling seems to announce a destructive rule in search of a sound principle. Read broadly, the jury trial rule articulated in Blakely might be thought to cast constitutional doubt on any and all judicial fact-finding at sentencing. Yet judicial fact-finding at sentencing has a long history, and such fact-finding has been an integral component of modern sentencing reforms and seems critical to the operation of guideline sentencing. The caustic reaction to Blakely reflects the fact that the decision has sowed confusion …
Judicial Power & Civil Rights Reconsidered, David E. Bernstein, Ilya Somin
Judicial Power & Civil Rights Reconsidered, David E. Bernstein, Ilya Somin
George Mason University School of Law Working Papers Series
Michael Klarman's "From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality" is an important contribution to the scholarly literature on both the history of the civil rights struggle and judicial power more generally. Klarman argues that for much of the twentieth century, the Supreme Court was very reluctant to rule in favor of African American civil rights claimants, and had little impact when it did.
Klarman is right to reject traditional accounts that greatly exaggerated the Supreme Court's willingness and ability to protect minorities. However, he overstates his case. The Court's views on the …
A Culturally Correct Proposal To Privatize The British Columbia Salmon Fishery, D. Bruce Johnsen
A Culturally Correct Proposal To Privatize The British Columbia Salmon Fishery, D. Bruce Johnsen
George Mason University School of Law Working Papers Series
Canada now faces two looming policy crises that have come to a head in British Columbia. The first is long-term depletion of the Pacific salmon fishery by mobile commercial ocean fishermen racing to intercept salmon under the rule of capture. The second results from Canadian Supreme Court case law recognizing and affirming “the existing aboriginal and treaty rights of the aboriginal peoples of Canada” under Section 35(1) of the Constitution Act, 1982. This essay shows that the economics of property rights provides a joint solution to these crises that would promote the Canadian commonwealth by way of a privatization auction …
Wine Wars: The 21st Amendment And Discriminatory Bans To Direct Shipment Of Wine , Todd J. Zywicki
Wine Wars: The 21st Amendment And Discriminatory Bans To Direct Shipment Of Wine , Todd J. Zywicki
George Mason University School of Law Working Papers Series
This essay is actually a series of posts from the Volokh Conspiracy weblog (www.volokh.com) that discusses the policy and constitutional issues surrounding a question that the Supreme Court will hear this term, whether discriminatory barriers to the interstate direct shipment of wine are constitutional. Because of the timeliness of the issue, the essay is presented in this unusual and informal format so as to be available to the public more rapidly than through the traditional law review format. This essay” reviews the historical evidence and ratification history of the 21st Amendment, and concludes that the answer is unambiguously no.
The …
The Constitution In Two Dimensions: A Transaction Cost Analysis Of Constitutional Remedies. , Eugene Kontorovich
The Constitution In Two Dimensions: A Transaction Cost Analysis Of Constitutional Remedies. , Eugene Kontorovich
George Mason University School of Law Working Papers Series
This Article reveals the underappreciated role of liability rules in constitutional law. Conventional constitutional theory insists that constitutional entitlements require, by their nature, property rule protection. That is, they can only be taken with the owner's consent; nonconsensual takings can be enjoined. This Article shows that many constitutional values are in fact protected by liability rules, which allow for forced transfers followed by payment of compensation. Substantive entitlements form one dimension of constitutional law. The various ways in which they are protected against transfers form the second dimension. The full picture of constitutional law only emerges from looking at both. …
The Relation Between Autonomy-Based Rights And Profoundly Disabled Persons, Norman L. Cantor
The Relation Between Autonomy-Based Rights And Profoundly Disabled Persons, Norman L. Cantor
Rutgers Law School (Newark) Faculty Papers
“The Relation Between Autonomy-based Rights and Profoundly Mentally Disabled Persons” Competent persons have fundamental rights to decide about abortion, methods of contraception, and rejection of life-sustaining medical treatment. Profoundly disabled persons are so cognitively impaired that they cannot make their own serious medical decisions. Yet some courts suggest that the mentally impaired are entitled to “the same right” to choice regarding critical medical decisions as competent persons. This article discusses the puzzling question of how to relate autonomy-based rights to never-competent persons. It argues that while profoundly disabled persons cannot be entitled to make their own medical decisions, they have …
Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg
Morals-Based Justifications For Lawmaking: Before And After Lawrence V. Texas, Suzanne B. Goldberg
Rutgers Law School (Newark) Faculty Papers
Morals-Based Justifications for Lawmaking: Before and After Lawrence v. Texas looks in depth at the dissonance between the Supreme Court’s rhetorical support for morals-based lawmaking and the Court’s jurisprudence. In taking this approach, the article responds to a central post-Lawrence question regarding the sufficiency of a government’s moral agenda as a justification for restricting individual rights. It turns out, on close review of the cases going back to the mid-1800s, that the Court has almost never relied explicitly on a morals rationale to sustain an allegedly rights-infringing government action.
The article develops several explanations for this avoidance of explicit morals …
Equality Without Tiers, Suzanne Goldberg
Equality Without Tiers, Suzanne Goldberg
Rutgers Law School (Newark) Faculty Papers
No abstract provided.
Wiretapping's Fruits, The First Amendment, And The Paradigms Of Privacy, Bernard W. Bell
Wiretapping's Fruits, The First Amendment, And The Paradigms Of Privacy, Bernard W. Bell
Rutgers Law School (Newark) Faculty Papers
No abstract provided.