Law Commons^™

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 …

Separation Of Powers And The Commander In Chief: Congress’S Authority To Override Presidential Decisions In Crisis Situations, Reid Skibell

ExpressO

This paper represents an in-depth examination of Separation of Power issues raised in the context of the Legislative and Executive Branch’s exercise of their War Powers. Specifically, the paper considers the argument raised by the Bush Administration that Congress cannot constitutionally infringe on the President’s exercise of his Commander in Chief Power in the fight against terrorism. Such an argument would effectively insulate most Presidential decisions related to terrorism from Congressional oversight. The implication being that even if Congress wanted to accomplish something like ending the detainment of detainees at Guatanamo Bay it would be outside their Constitutional authority. The …

“Which One Of You Did It?” Criminal Liability For “Causing Or Allowing” The Death Of A Child, Lissa Griffin

ExpressO

No abstract provided.

Constitutional Crisis Over The Proposed Supreme Court For The United Kingdom, Peter L. Fitzgerald

ExpressO

No abstract provided.

The Right To Family Life And Civil Marriage Under International Law And Its Implementation In The State Of Israel, Yuval Merin

ExpressO

The article deals with the protection of the right to family life under international law and its implementation in the State of Israel on three levels: protection of the family cell as a single unit; protection of the individuals comprising the family unit; and protection of the family in special circumstances (e.g., immigration rights).

The article begins by analyzing the characteristics of the right to family life and examining various definitions of the “family” under international and Israeli law. It also examines what it is that the right to family life encompasses and how it should be classified within the …

Contaminating The Verdict: The Problem Of Juror Misconduct, Bennett L. Gershman

ExpressO

No abstract provided.

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 …

Institutional Reckless Disregard For Truth In Public Defamation Actions Against The Press, Randall P. Bezanson

ExpressO

Since its beginning, the actual malice test first announced in 1964 in New York Times v. Sullivan, has suffered from problems that are increasingly traceable to the changing face of journalism. Its demand that the mind of the reporter be proved "with convincing clarity" has adverse consequences for plaintiffs and news organizations alike. End runs around the subjective state of mind inquiry by plaintiffs have become more common. And the actual malice test's predictability, its capacity as a standard of liability to yield consistent and coherent results across a body of cases, remains a hollow promise. As Robert Sack famously …

Deportations, Removals And The 1996 Immigration Acts: A Modern Look At The Ex Post Facto Clause, Lupe S. Salinas

ExpressO

The article addresses the punitive aspects of the deportation procedures as impacted by the 1996 Immigration Acts. When faced with the precedents in the field, that deportation is a civil procedure, federal courts conclude that the Ex Post Facto Clause does not apply. However, the article draws upon common law and other historical bases for the conclusion that a modern view should hold that conviction-related removals are punitive and subject to ex post facto analysis.

Writing Their Faith Into The Law Of The Land: Jehovah's Witnesses, The Supreme Court And The Battle For The Meaning Of The Free Exercise Clause, 1939-1945, Patrick J. Flynn

ExpressO

The article traces the development of free exercise jurisprudence through the battles of Jehovah's Witnesses before the Court, and the battles on the Court between Justices Black, Douglas and Frankfurter to establish their constitutional faiths as the law of the land during a brief period in the early 1940's when these issues came before the Court in a flurry of decisions, then disappeared.

Rights At United States Borders, Jon Adams

ExpressO

This article explores protections available under the Fourth and Fifth Amendments to the United States Constitution. Contrary to opinions in popular culture, and perhaps even among Customs officials, powers to search, seize, and interrogate at United States border crossings are not unlimited. In the current world climate of security and threat, a discussion regarding the level of intrusiveness available to a zealous Customs agent appears particularly relevant. The article addresses the requirements for search, seizure, and interrogation, as well as the lawful conditions and limits upon each activity.

International Child Abductions: The Challenges Facing America , Charles F. Hall

ExpressO

International child abductors often escape domestic law enforcement and disappear without consequence or resolution. International child abductions occur too frequently; in the United States alone, the number of children abducted abroad every year has risen to over 1,000. Currently, 11,000 American children live abroad with their abductors. These abductions occur despite international treaties and the Congressional resolutions that have significantly stiffened the penalties for those caught. Effectively combating international child abductions requires drafting resolutions that are acceptable across the diverse societies and cultures of the international community. Without such resolutions to fill the gaps of current treaties this problem will …

Constitutionalism In The Streets, Gary D. Rowe

ExpressO

This Article works at the border of constitutional history and constitutional law. It embarks on a reconstruction of constitutionalism in the early American Republic through a microhistorical case study, an analysis of the fascinating United States v. Peters (1809), the first Supreme Court decision to strike down a state law. In the last half century, the Supreme Court has repeatedly asserted that it is the “ultimate expositor of the constitutional text.” From Cooper v. Aaron to United States v. Morrison, the Court has invoked no less than the authority of Chief Justice John Marshall and his opinion in Marbury v. …

Equality Without Tiers, Suzanne Goldberg

Rutgers Law School (Newark) Faculty Papers

No abstract provided.

The Cocaine Vaccine, Dru Stevenson

ExpressO

The controversial new cocaine vaccine (TA-CD) has the potential to be an extremely effective treatment tool for recovering addicts, but it also presents opportunities for non-therapeutic uses, such as preventing cocaine use in the first place. It is foreseeable that the cocaine vaccine could become a condition of parole or probation, or receiving welfare payments, or for employment in certain occupations. Universal vaccination is also a possibility but less likely for political reasons. This article investigates each of these areas of potential use. Any setting where mandatory drug testing is currently in place could become a venue for the vaccination. …

Marbury's Myths: John Marshall, Judicial Review And The Rule Of Law , Robert J. Reinstein

ExpressO

No abstract provided.

Resurrecting The Press Clause, David A. Anderson

ExpressO

No abstract provided.

Predatory Systems Rivalry And Predatory Aftermarket Conduct, Richard S. Markovits

ExpressO

No abstract provided.

Courts As Forums For Protest, Jules Lobel

ExpressO

For almost half a century, scholars, judges and politicians have debated two competing models of the judiciary’s role in a democratic society. The mainstream model views courts as arbiters of disputes between private individuals asserting particular rights. The public law or structural reform litigation emphasized the judiciary’s role in implementing social change and not simply ordering private relationships.

The ongoing debate between these two views of the judicial role has obscured a third model of the role of courts in a democratic society; a model that has been ignored by legal scholars and viewed as illegitimate by some courts. That …

What's Really Wrong With Compelled Association?, Seana V. Shiffrin

ExpressO

What's Really Wrong With Compelled Association?

The article presents an original account of the value of freedom of association, one more intimately tied to freedom of speech values than the models of association implicit in much commentary and in such U.S. Supreme Court cases as Boy Scouts v. Dale and Roberts v. U.S. Jaycees. Standard models view the relationship between associations and free speech as instrumental. On these accounts, voluntary associations serve as sites for individuals with a defined point of view to congregate together and make their communication louder and more effective. While voluntary associations may sometimes serve this …

Gay And Lesbian Rights To Procreate And Access To Assisted Reproductive Technology, John A. Robertson

ExpressO

No abstract provided.

Discretion As Delegation: The "Proper" Understanding Of The Nondelegation Doctrine, Gary Lawson

ExpressO

Does the Constitution limit the extent to which Congress can grant discretion to other actors? The traditional nondelegation doctrine says yes, though advocates of the doctrine strongly disagree about the source of that principle and the location of the line between permissible and impermissible discretion. A number of modern scholars and judges, however, doubt whether the Constitution contains any such principle. This article demonstrates that the Constitution constrains Congress's ability to grant discretion to other actors through the requirement that laws for carrying federal power into execution must be "necessary and proper." The words "necessary" and "proper" have distinct constitutional …

The Needle And The Damage Done: How Hoffman Plastics Promotes Sweatshops And Illegal Immigration And What To Do About It , Jennifer S. Berman

ExpressO

This paper examines the intersection of immigration and labor law as developed in federal law, culminating in the recent Supreme Court case, Hoffman Plastics. Arguing that Hoffman was wrongly decided, the paper further demonstrates that stronger penalties are necessary under the NLRA to deter employer wrongdoing, protect workers’ rights, and slow the proliferation of sweatshops.

The Modest Original Meaning Of The Commerce Clause, Calvin H. Johnson

ExpressO

A sample of 157 cites to “regulation of commerce” in the constitutional debates shows that the power given to Congress to regulate commerce was not a very important power at the time and not a major explanation of why the Constitution was adopted. The four most important programs espoused by the framers under the cover of regulation of commerce were (1) nationalization of the state “imposts” or import taxes, (2) retaliation against the British for restrictions on West Indies shipping; (3) port preferences, and (4) an American Navigation Act, restricting access to American ports to American ships. All were deep-water …

From The Lighthouses: How The First Federal Internal Improvement Projects Created Precedent That Broadened The Commerce Clause, Shrunk The Takings Clause, And Affected Early Nineteenth Century Constitutional Debate, Adam S. Grace

ExpressO

No abstract provided.

The Constitution And The Lessons Of Rome, Louis J. Sirico

ExpressO

This article identifies all references in The Federalist to ancient Rome and explains them and their import for the arguments favoring ratification. As our knowledge of classical civilization fades, we become less able to understand the meaning of a central document in our history. The article addresses this problem.

Crime Severity And Constitutional Line-Drawing, Eugene Volokh

ExpressO

No abstract provided.

Predatory Investments, Richard S. Markovits

ExpressO

No abstract provided.

Making Federalism Doctrine, Ernest A. Young

ExpressO

This article develops and defends a general approach to constitutional federalism doctrine. My position is probably best described as sympathetic criticism of the Rehnquist Court’s “Federalist Revival.” I think that the Court’s project of reviving a judicial role in enforcing federalism is terribly important, but that many of the Court’s particular measures in that vein are unhelpful or, sometimes, counterproductive.

The article makes three claims. The first is methodological: I argue that courts can and should formulate doctrines to enforce the federal balance, even when those doctrines cannot be tied directly to constitutional text and history. Recognizing that constitutional doctrine …

Citizens Of An Enemy Land: Enemy Combatants, Aliens, And The Constitutional Rights Of The Pseudo-Citizen, Juliet P. Stumpf

ExpressO

No abstract provided.