Law Commons^™

Orwell Was An Optimist: The Evolution Of Privacy In The United States And Its De-Evolution For American Employees, Robert Sprague

Robert Sprague

This Article argues that the difficulties associated with understanding and applying rights to privacy in modern America, and its near extinction, particularly for employees, are a direct result of the conceptual approach used to determine whether a legal right to privacy exists. This approach was formally adopted in the latter part of the twentieth century and it makes privacy protection dependent upon any given situation, determined by whether there is a reasonable expectation of privacy for that given situation. This makes the current right to privacy in the United States contextual, fluid, and easily subject to elimination. One of the …

Judicial Independence: A Call For Reform, Terence Lau

Terence Lau

According to retired Justice Sandra Day O’Connor, judicial independence is threatened now more so than any other time throughout history. Attacks on the judiciary have crossed the line from legitimate criticism to partisan harangues that threaten the ability of judges to rule fairly and without bias. This Article begins with a historical look at judicial independence as it has shaped the Supreme Court, including the impeachment of Samuel Chase, Ex ParteMcCardle and the court-packing plan and concludes with a call for reform to the judicial appointment process to permit greater transparency in judicial selection.

Democracy On Trial: Terrorism, Crime, And National Security Policy In A Post 9-11 World, David A. Schultz

David A Schultz

Post 9-11 concerns in the United States, among the European Union (EU) members, and other western democracies regarding international terrorism forced convergence of the traditionally distinct policy areas of domestic criminal justice and national security. This convergence has produced several policy and institutional conflicts that pit individual rights against homeland security, domestic law and institutions against international norms and tribunals, and criminal justice agencies against national security organizations. This Article examines regime responses to international terrorism, principally in the United States, in comparison to the European Union, seeking to describe the consequences of the merger of criminal justice norms with …

The Right To Reproductive Choice Without The Myth Of Fundamentality: A Guide To Aborting Roe V. Wade And All Of Its Bastard Progeny, Nina C. Baccala

Nina C. Baccala

No abstract provided.

Of Historiography And Constitutional Principle: Jefferson's Reply To The Danbury Baptists, Ian C. Bartrum

Ian C Bartrum

This article examines the ways that the Supreme Court has used Thomas Jefferson's letter to the Danbury Baptists ("a wall of separation between church and state") as a rhetorical symbol. It finds the letter at the heart of the Court's debate over competing theories of religious neutrality. The article then explores the treatment the letter has received in several leading academic histories, and concludes that professional historians have largely tailored their arguments to match the Supreme Court's ideological divide. The article concludes that, because the goals of historical argument and legal argument are fundamentally different, this "incestual" kind of relationship …

Religious Arguments And The United States Supreme Court: A Review Of Amicus Curiae Briefs Filed By Religious Organizations, Andrew S. Mansfield

Andrew S Mansfield

This paper analyzes forty-five amicus curiae briefs filed by religious organizations with the Supreme Court since Brown v. Board of Education, 348 U.S. 886, decided in 1954, through the decision in Ayotte v. Planned Parenthood, 546 U.S. 320, rendered in 2006. The forty-five amicus curiae briefs were filed in nineteen cases and concern issues that are often identified as “moral.” Analysis of the amicus curiae briefs filed with the Supreme Court by religious organizations provides at least three crucial insights. First, the legal arguments presented by religious organizations, as reflected in amicus curiae briefs filed with the Supreme Court, provide …

Can A Legislative Assembly Function Without An Executive Government Under The Indian Constitution?, Shubhankar Dam

Shubhankar Dam

Can the Governor dissolve a Legislative Assembly under the Indian Constitution even before convening its first meeting on the ground that no party had adequate mandate to form the government? That was the question posed before the Supreme Court in Rameshwar Prasad. The Court held in the affirmative. For the Court, a Legislative Assembly can be brought into existence only when some members of the Legislature are in a position to form the Executive Government (the Cabinet). This short comment proposes an argument to the contrary. I argue that the Supreme Court's conclusion was made possible by a method of …

El Derecho De Los Secretos, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

Es la primera obra en el mundo que estudia todo tipo de secretos bajo la óptica de una sola teoría general. En ella se tratan con singular profanidad los secretos profesionales (del abogado, periodista, médico, banquero, etc.), la deliberación privada del tribunal y ciertos privilegios para callar en juicio; los secretos de Estado, los oficiales, procesales, convencionales y de negociación. Obviamente entran los secretos comerciales, de empresa o de fábrica, la protección de datos y registros, el voto secreto y el anonimato. Pero lo más llamativo es la forma, tan sorprendente como coherente, en que analiza dentro de la teoría …

El Quinto Estado, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

No abstract provided.

Seguridad Jurídica, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

No abstract provided.

Metaphors And Modalities: Meditations On Bobbitt's Theory Of The Constitution, Ian C. Bartrum

Ian C Bartrum

This article builds on Philip Bobbitt’s remarkable work in constitutional theory, which posits a practice-based constitution based in six accepted “modalities” of argument. I attempt to supplement Bobbitt’s theory—which has a static and exclusive quality to it—with an account of interpretive evolution based in Max Black’s interaction theory of metaphors. I suggest that we can (and do) create constitutional metaphors by deliberately overlapping Bobbitt’s modalities of argument, and that through these creative acts we can grow the practice of American constitutionalism. I then present case studies of this metaphoric process at work in three fields of constitutional practice: from constitutional …

Análisis Económico De La Acción De Tutela, Fernando Castillo Cadena

Fernando Castillo Cadena

No abstract provided.

Reading Tea Leaves In Federal Election Commission V. Wisconsin Right To Life: Hope For A Buckley Evolution?, Michael Anthony Lawrence

Michael Anthony Lawrence

During its 2006-07 Term the U.S. Supreme Court decided Federal Election Commission v. Wisconsin Right to Life, Inc., the latest in a long line of cases sprouting from the seminal 1976 First Amendment campaign finance case, Buckley v. Valeo. In Wisconsin Right to Life, the Court concluded that Section 203 of the federal Bipartisan Campaign Reform Act of 2002, prohibiting the use of corporate funds to finance “electioneering communications” during a specified pre-election period, constituted an as-applied violation of a non-profit corporation’s free speech rights.

Wisconsin Right to Life offers useful insights into the Roberts Court’s thinking on the lively …