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Echoes From The Segregationist Past At Oral Argument, Mary Ellen Maatman Dec 2015

Echoes From The Segregationist Past At Oral Argument, Mary Ellen Maatman

Mary Ellen Maatman

Discussion of Supreme Court case Fisher v. University of Texas


The Anticanonical Lesson Of Huckleberry Finn, Sharon E. Rush Dec 2015

The Anticanonical Lesson Of Huckleberry Finn, Sharon E. Rush

Sharon E. Rush

Some books included in the canon of American literature no longer belong there, because they presently lack normative approval. Adapting concepts found in constitutional law, an anticanon of American literature functions the way the anticanon of constitutional law would operate and explicitly removes books from the canon. In law, the anticanon identifies outdated interpretations of the constitution. In education, it is time to consider removing from the canon and placing in an anticanon books that are inconsistent with multicultural education. One such book is Mark Twain's Huckleberry Finn, which is part of the canon of American literature and viewed as …


The Anticanonical Lesson Of Huckleberry Finn, Sharon E. Rush Dec 2015

The Anticanonical Lesson Of Huckleberry Finn, Sharon E. Rush

Sharon E. Rush

Some books included in the canon of American literature no longer belong there, because they presently lack normative approval. Adapting concepts found in constitutional law, an anticanon of American literature functions the way the anticanon of constitutional law would operate and explicitly removes books from the canon. In law, the anticanon identifies outdated interpretations of the constitution. In education, it is time to consider removing from the canon and placing in an anticanon books that are inconsistent with multicultural education. One such book is Mark Twain's Huckleberry Finn, which is part of the canon of American literature and viewed as …


Not All Black And White, Alan E. Garfield Dec 2015

Not All Black And White, Alan E. Garfield

Alan E Garfield

No abstract provided.


Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen Nov 2015

Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen

Mark P. Gergen

Both consumer protection and restitution may be casualties in a collision with the constitutional law of standing. Spokeo collects information from the internet and publishes it; however, Spokeo neither verifies the facts nor confirms which same-named person it refers to. Robins alleges that Spokeo violated the Fair Credit Reporting Act by disseminating false information about him. He seeks class certification and up to $1,000 in statutory minimum damages instead of compensatory damages. Spokeo argues that Robins lacks standing because he suffered no “injury in fact,” no “concrete harm.” Statutory minimum recoveries for defendants’ violations of plaintiffs’ individual rights without proof …


The Impact Of “Standing” Is Anything But Boring, Alan E. Garfield Nov 2015

The Impact Of “Standing” Is Anything But Boring, Alan E. Garfield

Alan E Garfield

No abstract provided.


Europe's Darker Legacies; Notes On Mirror Reflections, The Constitution As Fetish, And Other Such Linkages Between The Past And The Future Darker Legacies Of Law In Europe; The Shadow Of National Socialism And Fascism Over Europe And Its Legal Traditions Edited, By Christian Joerges And Navraj Singh Ghaleigh (Eds); European Constitutionalism Beyond The State, By J. H. H. Weiler And Marlene Wind (Eds), Peer Zumbansen Oct 2015

Europe's Darker Legacies; Notes On Mirror Reflections, The Constitution As Fetish, And Other Such Linkages Between The Past And The Future Darker Legacies Of Law In Europe; The Shadow Of National Socialism And Fascism Over Europe And Its Legal Traditions Edited, By Christian Joerges And Navraj Singh Ghaleigh (Eds); European Constitutionalism Beyond The State, By J. H. H. Weiler And Marlene Wind (Eds), Peer Zumbansen

Peer Zumbansen

No abstract provided.


Is It Time To Stop Tinkering With The Machinery Of Death?, Alan E. Garfield Oct 2015

Is It Time To Stop Tinkering With The Machinery Of Death?, Alan E. Garfield

Alan E Garfield

No abstract provided.


Law's Religion: Rendering Culture, Benjamin L. Berger Sep 2015

Law's Religion: Rendering Culture, Benjamin L. Berger

Benjamin L. Berger

This article argues that constitutional law's inability to deal with religion in a satisfying way flows, in part, from its failure to understand religion as, in a robust sense, culture. Once one begins to understand the Canadian constitutional rule of law itself as a cultural form, it becomes apparent that law renders religion in a very particular fashion, and that this rendering is a product of law's symbolic categories and interpretive horizons. This article draws out the elements of Canadian constitutionalism's unique rendering of religion and argues that, although Canadian constitutionalism claims to understand religion as a culture, this is …


Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen Sep 2015

Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen

Doug Rendleman

Both consumer protection and restitution may be casualties in a collision with the constitutional law of standing. Spokeo collects information from the internet and publishes it; however, Spokeo neither verifies the facts nor confirms which same-named person it refers to. Robins alleges that Spokeo violated the Fair Credit Reporting Act by disseminating false information about him. He seeks class certification and up to $1,000 in statutory minimum damages instead of compensatory damages. Spokeo argues that Robins lacks standing because he suffered no “injury in fact,” no “concrete harm.” Statutory minimum recoveries for defendants’ violations of plaintiffs’ individual rights without proof …


First Amendment; Freedom Of Speech; Broadcasting; Obscenity; Fcc V. Pacifica Foundation, James E. Moliterno Sep 2015

First Amendment; Freedom Of Speech; Broadcasting; Obscenity; Fcc V. Pacifica Foundation, James E. Moliterno

James E. Moliterno

“ ‘I was thinking about the curse words and the swear words, the cuss L words and the words you can't say . . .the words you couldn't say on the public, ah, airwaves... the ones that will curve your spine [and] grow hair on your hands ....’ While this is the satiric opinion of George Carlin, the Federal Communications Commission (FCC) and a bare majority of the United States Supreme Court have embraced it as their genuine opinion.' They have decided to protect the public from the fate of hearing Carlin's social criticism regarding seven ‘dirty’ words.”


Who’S The ‘We?’ Who’S ‘The People?’, Rodney A. Smolla Sep 2015

Who’S The ‘We?’ Who’S ‘The People?’, Rodney A. Smolla

Rod Smolla

No abstract provided.


The Right To Contract: Use Of Domestic Partnership As A Strategic Alternative To The Right To Marry Same-Sex Partners, Dara Purvis Sep 2015

The Right To Contract: Use Of Domestic Partnership As A Strategic Alternative To The Right To Marry Same-Sex Partners, Dara Purvis

Dara Purvis

Shortly after the Civil War, a series of cases argued that the Civil Rights Act of 1866 gave black Americans the right to make contracts, including a marriage contract, with whomever they chose. While the cases were almost uniformly unsuccessful at that time, this paper argues that claims based on private contracts replicating some of marriage’s benefits, stripped of the social and religious freight of marriage, are more compelling. State constitutional amendments banning not only marriage, but any legal recognition of a marriage-like relationship, demonstrate that animus underlies the prohibitions and that the amendments violate the Equal Protection Clause even …


All American Citizens Fall Under ‘We The People,’ But Who Is Really Included?, Alan E. Garfield Sep 2015

All American Citizens Fall Under ‘We The People,’ But Who Is Really Included?, Alan E. Garfield

Alan E Garfield

No abstract provided.


California Supreme Court Unanimously Upholds Inclusionary Zoning As Land Use Regulation And Not An Exaction, Tim Iglesias Aug 2015

California Supreme Court Unanimously Upholds Inclusionary Zoning As Land Use Regulation And Not An Exaction, Tim Iglesias

Tim Iglesias

Local governments, housing advocates, and people who need affordable housing won a solid victory in the California Supreme Court's unanimous opinion in California Bldg. Indus. Ass'n v. City of San Jose. In a complex 64-page opinion that is clearly drafted and rigorously argued, the court held that inclusionary zoning is a constitutionally permissible strategy to produce affordable housing and to promote economic integration that is subject to rational basis review and not heightened scrutiny.

This article outlines the factual and legal background of the case and discusses the court's reasoning in reaching its decision, including the court's refusal to find …


The Conflict Of Laws In Armed Conflicts And Wars, John C. Dehn Aug 2015

The Conflict Of Laws In Armed Conflicts And Wars, John C. Dehn

John C. Dehn

After over thirteen years of continuous armed conflict, neither courts nor scholars are closer to a common understanding of whether, or how, international and U.S. law interact to regulate acts of belligerency by the United States. This Article articulates the first normative theory regarding the relationship of customary international law to U.S. domestic law that fully harmonizes Supreme Court precedent. It then applies this theory to customary international laws of war to better articulate the legal framework regulating the armed conflicts of the United States. It demonstrates that the relationship of customary international law to U.S. law differs in cases …


Is It Unconstitutional To Prohibit Faith-Based Schools From Becoming Charter Schools?, Stephen D. Sugarman Aug 2015

Is It Unconstitutional To Prohibit Faith-Based Schools From Becoming Charter Schools?, Stephen D. Sugarman

Stephen D Sugarman

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. First, the “school choice” movement of the past 50 years is described, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. In this setting I argue a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for …


The Emergence Of Classical American Patent Law, Herbert Hovenkamp Aug 2015

The Emergence Of Classical American Patent Law, Herbert Hovenkamp

Herbert Hovenkamp

The Emergence of Classical Patent Law

Abstract

One enduring historical debate concerns whether the American Constitution was intended to be "classical" -- referring to a theory of statecraft that maximizes the role of private markets and minimizes the role of government in economic affairs. The most central and powerful proposition of classical constitutionalism is that the government's role in economic development should be minimal. First, private rights in property and contract exist prior to any community needs for development. Second, if a particular project is worthwhile the market itself will make it occur. Third, when the government attempts to induce …


All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet Aug 2015

All Things In Proportion - American Rights Review And The Problem Of Balancing, Jud Mathews, Alec Stone Sweet

Jud Mathews

This paper describes and evaluates the evolution of rights doctrines in the United States, focusing on the problem of balancing as a mode of rights adjudication. In the current Supreme Court, deep conflict over whether, when, and how courts balance is omnipresent. Elsewhere, we find that the world’s most powerful constitutional courts have embraced a stable, analytical procedure for balancing, known as proportionality. Today, proportionality analysis (PA) constitutes the defining doctrinal core of a transnational, rights-based constitutionalism. This Article critically examines alleged American exceptionalism, from the standpoint of comparative constitutional law and practice. Part II provides an overview of how …


Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla Jul 2015

Content And Context: The Contributions Of William Van Alstyne To First Amendment Interpretation, Rodney A. Smolla

Rod Smolla

No abstract provided.


Taking Libel Reform Seriously, Rodney A. Smolla Jul 2015

Taking Libel Reform Seriously, Rodney A. Smolla

Rod Smolla

Not available.


Integration Maintenance: The Unconstitutionality Of Benign Programs That Discourage Black Entry To Prevent White Flight, Rodney A. Smolla Jul 2015

Integration Maintenance: The Unconstitutionality Of Benign Programs That Discourage Black Entry To Prevent White Flight, Rodney A. Smolla

Rod Smolla

Not available.


George Will’S Supreme Court History Is Dubious, Alan E. Garfield Jul 2015

George Will’S Supreme Court History Is Dubious, Alan E. Garfield

Alan E Garfield

No abstract provided.


Will ‘Rule Of Five’ End Marriage Debate?, Alan E. Garfield Jul 2015

Will ‘Rule Of Five’ End Marriage Debate?, Alan E. Garfield

Alan E Garfield

No abstract provided.


Kant's Categorical Imperative: An Unspoken Factor In Constitutional Rights Balancing, Donald L. Beschle Jun 2015

Kant's Categorical Imperative: An Unspoken Factor In Constitutional Rights Balancing, Donald L. Beschle

Donald L. Beschle

No abstract provided.


God Bless The Child?: The Use Of Religion As A Factor In Child Custody And Adoption Proceedings, Donald L. Beschle Jun 2015

God Bless The Child?: The Use Of Religion As A Factor In Child Custody And Adoption Proceedings, Donald L. Beschle

Donald L. Beschle

No abstract provided.


An Other Christian Perspective On Lawrence V. Texas, Victor C. Romero May 2015

An Other Christian Perspective On Lawrence V. Texas, Victor C. Romero

Victor C. Romero

The so-called Religious Right's reaction to Lawrence v. Texas has been both powerful and negative, characterizing the case as an assault on the traditional conception of marriage and family life. This essay is an attempt to present a different Christian view. Modeled on the life and teachings of Jesus, this perspective celebrates the Lawrence case as consistent with God's call to social justice for the oppressed. It also outlines a Christian sexual ethic that lifts up genuine, monogamous, committed love between two individuals, whether of the same or opposite sex.


Foreign Precedent In State Const Interpretation, Jonathan L. Marshfield Apr 2015

Foreign Precedent In State Const Interpretation, Jonathan L. Marshfield

Jonathan Marshfield

Americans are rightly proud that they created the first successful written constitutions. But constitutionalism is now an international phenomenon. Since the United States Constitution was ratified, there have been an estimated 879 constitutional systems adopted around the world. Some failed quickly, but others have endured and helped to stabilize volatile societies. Constitutionalism now has a rich international history, and the United States is one of many countries with a proud and meaningful constitutional tradition. It is not surprising, therefore, that American courts are sometimes caught “peeking abroad” to see what they might glean from other constitutional systems


"Continually Reminded Of Their Inferior Position": Social Dominance, Implicit Bias, Criminality, And Race, Darren Lenard Hutchinson Apr 2015

"Continually Reminded Of Their Inferior Position": Social Dominance, Implicit Bias, Criminality, And Race, Darren Lenard Hutchinson

Darren L Hutchinson

This Article contends that implicit bias theory has improved contemporary understanding of the dynamics of individual bias. Implicit bias research has also helped to explain the persistent racial disparities in many areas of public policy, including criminal law and enforcement. Implicit bias theory, however, does not provide the foundation for a comprehensive analysis of racial inequality. Even if implicit racial biases exist pervasively, these biases alone do not explain broad societal tolerance of vast racial inequality. Instead, as social dominance theorists have found, a strong desire among powerful classes to preserve the benefits they receive from stratification leads to collective …


When Should The Supreme Court Justices ‘Decide’ A Right?, Alan E. Garfield Apr 2015

When Should The Supreme Court Justices ‘Decide’ A Right?, Alan E. Garfield

Alan E Garfield

No abstract provided.