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Articles 31 - 60 of 221
Full-Text Articles in Law
The Resilience Of Property, Lynda L. Butler
The Resilience Of Property, Lynda L. Butler
Faculty Publications
Resilience is essential to the ability of property to face transforming social and environmental change. For centuries, property has responded to such change through a dialectical process that identifies emerging disciplinary perspectives and debates conflicting values and norms. This dialectic promotes the resilience of property, allowing it to adapt to changing conditions and needs. Today the mainstream economic theory dominating common law property is progressively being intertwined with constitutionally protected property, undermining its long-term resilience. The coupling of the economic vision of ordinary property with constitutional property embeds the assumptions, choices, and values of the economic theory into both realms …
The Normative & Historical Cases For Proportional Deportation, Angela M. Banks
The Normative & Historical Cases For Proportional Deportation, Angela M. Banks
Faculty Publications
Is citizenship status a legitimate basis for allocating rights in the United States?
In immigration law the right to remain in the United States is significantly tied to citizenship status. Citizens have an absolutely secure right to remain in the United States regardless of their actions. Noncitizens’ right to remain is less secure because they can be deported if convicted of specific criminal offenses. This Article contends that citizenship is not a legitimate basis for allocating the right to remain. This Article offers normative and historical arguments for a right to remain for noncitizens. This right should be granted to …
Property's Constitution, James Y. Stern
Property's Constitution, James Y. Stern
Faculty Publications
Long-standing disagreements over the definition of property as a matter of legal theory present a special problem in constitutional law. The Due Process and Takings Clauses establish individual rights that can be asserted only if “property” is at stake. Yet the leading cases interpreting constitutional property doctrines have never managed to articulate a coherent general view of property, and in some instances have reached opposite conclusions about its meaning. Most notably, government benefits provided in the form of individual legal entitlements are considered “property” for purposes of due process but not takings doctrines, a conflict the cases acknowledge but do …
Abstention, Separation Of Powers, And Recasting The Meaning Of Judicial Restraint, William P. Marshall
Abstention, Separation Of Powers, And Recasting The Meaning Of Judicial Restraint, William P. Marshall
Faculty Publications
No abstract provided.
The Constitutionality Of Campaign Finance Regulation: Should Differences In A State's Political History And Culture Matter?, William P. Marshall
The Constitutionality Of Campaign Finance Regulation: Should Differences In A State's Political History And Culture Matter?, William P. Marshall
Faculty Publications
No abstract provided.
On Candor, Free Enterprise Fund, And The Theory Of The Unitary Executive, Michael J. Gerhardt
On Candor, Free Enterprise Fund, And The Theory Of The Unitary Executive, Michael J. Gerhardt
Faculty Publications
No abstract provided.
The Lautsi Decision And The American Establishment Clause Experience: A Response To Professor Weiler, William P. Marshall
The Lautsi Decision And The American Establishment Clause Experience: A Response To Professor Weiler, William P. Marshall
Faculty Publications
No abstract provided.
The Sixth Amendment Rights To Fairness: The Touchstones Of Effectiveness And Pragmatism, Robert P. Mosteller
The Sixth Amendment Rights To Fairness: The Touchstones Of Effectiveness And Pragmatism, Robert P. Mosteller
Faculty Publications
No abstract provided.
Federal Constraints: Possible Constitutional Hurdles To Cross-Border Cap-And-Trade,, Shelley Welton
Federal Constraints: Possible Constitutional Hurdles To Cross-Border Cap-And-Trade,, Shelley Welton
Faculty Publications
No abstract provided.
Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton
Democratic Inclusion, Cognitive Development, And The Age Of Electoral Majority, Vivian E. Hamilton
Faculty Publications
No abstract provided.
The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash
The Indefensible Duty To Defend, Neal Devins, Saikrishna B. Prakash
Faculty Publications
Modern Justice Department opinions insist that the executive branch must enforce and defend laws. In the first article to systematically examine Department of Justice refusals to defend, we make four points. First, the duties to enforce and defend lack any sound basis in the Constitution. Hence, while President Obama is right to refuse to defend the Defense of Marriage Act, he is wrong to continue to enforce a law he believes is unconstitutional. Second, rather than being grounded in the Constitution, the duties are better explained by the Department of Justice’s (DOJ) desire to enhance its independence and status. By …
Law Review Symposium 2011: Baker V. Carr After 50 Years: Appraising The Reapportionment Revolution: Introduction, Jonathan L. Entin
Law Review Symposium 2011: Baker V. Carr After 50 Years: Appraising The Reapportionment Revolution: Introduction, Jonathan L. Entin
Faculty Publications
Introduction to Law Review Symposium 2011: Baker V. Carr after 50 Years: Appraising the Reapportionment Revolution, Cleveland, OH
Constitutional Branding, Michael J. Gerhardt
Constitutional Branding, Michael J. Gerhardt
Faculty Publications
No abstract provided.
State Debts & Federal Jurisdiction, John V. Orth
State Debts & Federal Jurisdiction, John V. Orth
Faculty Publications
No abstract provided.
Would A Constitutional Amendment Protect And Promote Marriage In North Carolina? An Analysis Of Data From 2000 To 2009, Holning S. Lau
Would A Constitutional Amendment Protect And Promote Marriage In North Carolina? An Analysis Of Data From 2000 To 2009, Holning S. Lau
Faculty Publications
No abstract provided.
National Healthcare And American Constitutional Culture, William P. Marshall
National Healthcare And American Constitutional Culture, William P. Marshall
Faculty Publications
No abstract provided.
Challenges To Terry For The Twenty-First Century, Richard E. Myers Ii
Challenges To Terry For The Twenty-First Century, Richard E. Myers Ii
Faculty Publications
No abstract provided.
Progressive Constitutionalism, Originalism, And The Significance Of Landmark Decisions In Evaluating Constitutional Theory, William P. Marshall
Progressive Constitutionalism, Originalism, And The Significance Of Landmark Decisions In Evaluating Constitutional Theory, William P. Marshall
Faculty Publications
No abstract provided.
Smith, Christian Legal Society, And Speech-Based Claims For Religious Exemptions From Neutral Laws Of General Applicability, William P. Marshall
Smith, Christian Legal Society, And Speech-Based Claims For Religious Exemptions From Neutral Laws Of General Applicability, William P. Marshall
Faculty Publications
No abstract provided.
The Importance Of Immutability In Employment Discrimination Law, Sharona Hoffman
The Importance Of Immutability In Employment Discrimination Law, Sharona Hoffman
Faculty Publications
This article argues that recent developments in employment discrimination law require a renewed focus on the concept of immutable characteristics. In 29 two new laws took effect: the Genetic Information Nondiscrimination Act (GINA) and the Americans with Disabilities Act Amendments Act (ADAAA). This Article’s original contribution is an evaluation of the employment discrimination statutes as a corpus of law in light of these two additions.
The Article thoroughly explores the meaning of the term “immutable characteristic” in constitutional and employment discrimination jurisprudence. It postulates that immutability constitutes a unifying principle for all of the traits now covered by the employment …
Quirky Constitutional Provisions Matter: The Tonnage Clause, Polar Tankers, And State Taxation Of Commerce, Erik M. Jensen
Quirky Constitutional Provisions Matter: The Tonnage Clause, Polar Tankers, And State Taxation Of Commerce, Erik M. Jensen
Faculty Publications
In Polar Tankers, Inc. v. City of Valdez, the Supreme Court in 29 struck down a City of Valdez levy that was in form a personal-property tax, but that primarily reached oil tankers using Valdez’s ports, on the ground that the levy violated the Tonnage Clause of the Constitution (“No State, shall, without the consent of Congress, lay any Duty of Tonnage”). The Tonnage Clause, part of the constitutional structure intended to ensure federal primacy in regulating commerce, was once a staple of litigation, but Polar Tankers was the first Supreme Court case decided under the Clause since 1935. Polar …
Law School Clinics And The First Amendment, Jonathan L. Entin
Law School Clinics And The First Amendment, Jonathan L. Entin
Faculty Publications
No abstract provided.
Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins
Same-Sex Marriage And The New Judicial Federalism: Why State Courts Should Not Consider Out-Of-State Backlash, Neal Devins
Faculty Publications
No abstract provided.
Trumping Politics: The Roberts Court And "Judicial Review", Gene Nichol
Trumping Politics: The Roberts Court And "Judicial Review", Gene Nichol
Faculty Publications
No abstract provided.
Dangerous Terrain: Mapping The Female Body In Gonzales V. Carhart, B. Jessie Hill
Dangerous Terrain: Mapping The Female Body In Gonzales V. Carhart, B. Jessie Hill
Faculty Publications
The body occupies an ambiguous position within the law. It is, in one sense, the quintessential object of state regulatory and police power, the object that the state acts both upon and for. At the same time, the body is often constructed in legal discourse as the site of personhood - our most intimate, sacred, and inviolate possession. The inherent tension between these two concepts of the body permeates the law, but it is perhaps nowhere more prominent than in the constitutional doctrine pertaining to abortion. Abortion is one of the most heavily regulated medical procedures in the United States, …
Constitutional Construction And Departmentalism: A Case Study Of The Demise Of The Whig Presidency, Michael J. Gerhardt
Constitutional Construction And Departmentalism: A Case Study Of The Demise Of The Whig Presidency, Michael J. Gerhardt
Faculty Publications
No abstract provided.
Privacy Is The Problem, Raymond Shih Ray Ku
Privacy Is The Problem, Raymond Shih Ray Ku
Faculty Publications
A local school district remotely activates laptop web cameras that allegedly record the activities of students, even in their bedrooms.1 The President authorizes the National Security Agency (NSA) to monitor the telephone calls and electronic communications of individuals within the United States on an unprecedented scale in the interest of national security.2 Even a cursory examination of the news suggests that the activities and communications of Americans are increasingly subject to government surveillance from every level of government. Whatever we may think about the necessity for this surveillance, we should question how such programs come into being; in other words, …
Introduction: Reproductive Rights, Human Rights, And The Human Right To Health, B. Jessie Hill
Introduction: Reproductive Rights, Human Rights, And The Human Right To Health, B. Jessie Hill
Faculty Publications
Introduction - Case Western Reserve University Law Review Symposium 2010: Reproductive Rights, Human Rights, and the Human Right to Health
Unlimited Power: Why The President’S (Warrantless) Surveillance Program Is Unconstitutional, Raymond Shih Ray Ku
Unlimited Power: Why The President’S (Warrantless) Surveillance Program Is Unconstitutional, Raymond Shih Ray Ku
Faculty Publications
In this essay, Professor Ku explores the constitutionality of the President's Surveillance Program (PSP), and critiques the Bush Administration's legal explanations supporting warrantless surveillance. Defenders of the program have relied upon the President's inherent executive authority, the Congressional Authorization for Use of Military Force, the FISA Amendment Act of 2008, and ultimately that under any of these sources of authority the warrantless surveillance authorized is consistent with the right of privacy protected Fourth Amendment to the U.S. Constitution. As such, Professor Ku uses the PSP to illustrate the how and why current constitutional analysis both ignores and subverts “the right …
Clashing Visions Of A "Living" Constitution: Of Opportunists And Obligationists, William W. Van Alstyne
Clashing Visions Of A "Living" Constitution: Of Opportunists And Obligationists, William W. Van Alstyne
Faculty Publications
No abstract provided.