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Articles 1 - 30 of 1324
Full-Text Articles in Law
June 24, 2022, Bisma Shoaib
Subjectively Speaking, The Applicable Standard For Deficient Medical Treatment Of Pretrial Detainees Should Be One Of Objective Reasonableness, Benjamin R. Black
Subjectively Speaking, The Applicable Standard For Deficient Medical Treatment Of Pretrial Detainees Should Be One Of Objective Reasonableness, Benjamin R. Black
Touro Law Review
There is no uniformity amongst the circuits when it comes to pretrial detainees claims for inadequate medical care. The circuits are currently grappling with this problem, applying two separate tests to pretrial detainees’ 42 U.S.C. § 1983 claims depending on the jurisdiction in which the incident arose. The test that should be applied across all circuits is one of objective reasonableness. However, some circuits do not see it that way, applying the deliberate indifference standard, also known as the subjective standard test. The circuits applying the subjective standard are relying on case law that does not properly analyze the rights …
Vega V. Tekoh And The Erosion Of Miranda: A Reframing Of Miranda As A Procedural Due Process Requirement, Tess A. Chaffee
Vega V. Tekoh And The Erosion Of Miranda: A Reframing Of Miranda As A Procedural Due Process Requirement, Tess A. Chaffee
University of Cincinnati Law Review
No abstract provided.
Must Courts Recalibrate Tort Law Governing Firearms In Light Of The Second Amendment?, Lars Noah
Must Courts Recalibrate Tort Law Governing Firearms In Light Of The Second Amendment?, Lars Noah
University of Cincinnati Law Review
The rules governing the scope of liability in cases where firearms cause injuries—some well-established, others fairly novel—help to define the responsibilities of users, owners, and sellers of these popular but dangerous products. As the U.S. Supreme Court has recently expanded an individual’s right to keep and bear arms, some have wondered whether the Second Amendment might operate to limit the reach of these various tort doctrines. Sixty years ago, the Court started to constitutionalize various aspects of state common law, most famously using the First Amendment to limit defamation claims but in other respects as well. A comparable approach to …
Originalism's Time Machine: A Resurrected Relationship To The State, Douglas B. Mckechnie J.D.
Originalism's Time Machine: A Resurrected Relationship To The State, Douglas B. Mckechnie J.D.
Lincoln Memorial University Law Review Archive
For almost sixty years, the constitutional understanding of physical autonomy in the U.S. included the right to end a pregnancy. This modern understanding of constitutional rights began with the Supreme Court’s evolutive interpretation of the Constitution in the mid-Twentieth Century and continued to expand into the Twenty-first Century. In Dobbs v. Jackson Women’s Health Organization, however, the Court reasoned that the right to physical autonomy it had identified fifty years earlier, in Roe vs. Wade, was not deeply rooted in the nation’s history and thus wrongly established by the Court. This Originalist interpretation of the Constitution rearranged the constitutional order. …
121st Sibley Lecture: American Democracy In Peril, J. Michael Luttig
121st Sibley Lecture: American Democracy In Peril, J. Michael Luttig
Georgia Law Review
No abstract provided.
Parting The Red Sea: Prescriptions For The Rluipa Equal Terms Provision's Expanding Circuit Split, Braden T. Meadows
Parting The Red Sea: Prescriptions For The Rluipa Equal Terms Provision's Expanding Circuit Split, Braden T. Meadows
Georgia Law Review
Congress unanimously passed the Religious Land Use and Institutionalized Persons Act (RLUIPA) in 2000. The Act marked the culmination of a decades-long dialogue between Congress and the Supreme Court. RLUIPA’s passage embodied Congress’s resolve to provide religious free exercise protections—particularly as it pertained to religious land use. Since 2000, however, RLUIPA’s Equal Terms Provision has been subject to differing judicial interpretations, resulting in an expanding circuit split. This Note analyzes the circuit split and offers guidance to future interpreters.
First, this Note examines the social, legislative, and judicial history leading to RLUIPA’s enactment. Second, it analyzes the contours of interpretations …
Billionaire Taxes And The Constitution, Andy Grewal
Billionaire Taxes And The Constitution, Andy Grewal
Georgia Law Review
The United States now has ten times as many billionaires as it had just a few decades ago. This ever-growing class has sparked congressional interest in “billionaire tax” proposals. These proposals would generally require that billionaires recognize income when their asset values increase, even if they have not sold their assets.
Under existing doctrine, billionaire taxes likely violate the realization requirement embedded in the Sixteenth Amendment of the Constitution. However, this Article argues that existing Sixteenth Amendment doctrine suffers from deep infirmities and theoretical inconsistencies. With the conceptually sound interpretive approach advanced in this Article, a billionaire tax could pass …
The Uncertain Future Of Constitutional Democracy In The Era Of Populism: Chile And Beyond, Samuel Issacharoff, Sergio Verdugo
The Uncertain Future Of Constitutional Democracy In The Era Of Populism: Chile And Beyond, Samuel Issacharoff, Sergio Verdugo
University of Miami Law Review
Largely missing from the extensive discussions of populism and illiberal democracy is the emerging question of 21st century constitutionalism. Nowadays, it is hard to see relevant constitutional changes without a strong appeal to direct popular political participation. Institutional mechanisms such as referenda, citizens’ assemblies, and constitutional conventions emerge as near-universal parts of the canon of every academic and political discussion on how constitutions should be enacted and amended. This Article’s aim is to offer a cautionary approach to the way participatory mechanisms can work in constitution-making and to stress the difference between the power to ratify constitutional proposals and the …
A Theory Of Federalization Doctrine, Gerald S. Dickinson
A Theory Of Federalization Doctrine, Gerald S. Dickinson
Dickinson Law Review (2017-Present)
The doctrine of federalization—the practice of the U.S. Supreme Court consulting state laws or adopting state court doctrines to guide and inform federal constitutional law—is an underappreciated field of study within American constitutional law. Compared to the vast collection of scholarly literature and judicial rulings addressing the outsized influence Supreme Court doctrine and federal constitutional law exert over state court doctrines and state legislative enactments, the opposite phenomenon of the states shaping Supreme Court doctrine and federal constitutional law has been under-addressed. This lack of attention to such a singular feature of American federalism is striking and has resulted in …
Border Enforcement As State-Created Danger, Jenny-Brooke Condon, Lori A. Nessel
Border Enforcement As State-Created Danger, Jenny-Brooke Condon, Lori A. Nessel
St. John's Law Review
(Excerpt)
A woman seeks refuge at the U.S. border, but U.S. officials force her to wait for her asylum hearing in Mexico where a police officer later stalks and rapes her. A father and child suffer unbearable trauma after U.S. officials separate them under a policy aimed at deterring migration. A formerly healthy family loses a loved one to the coronavirus while forced to wait at an unsanitary, makeshift tent city in Mexico after fleeing for safety to the United States. For the people impacted by U.S. border policies, the southern border is a dangerous place—it is the site of …
Contractual Freedom: A Fundamental Right? A Reading Of The Texts Of Tunisian Law, Hafidh Kithem Dr.
Contractual Freedom: A Fundamental Right? A Reading Of The Texts Of Tunisian Law, Hafidh Kithem Dr.
UAEU Law Journal
public law. Which makes his access to private law and getting closer of contractual freedom impossible, if we recall "Rohm": “The wall separating the two branches of law is more robust than the Berlin Wall”.
It should also be recognized that the encounter between "contractual freedom" and "fundamental right" is not a simple matter because of a spice-time difference. The "fundamental right" (the young man) - in contrast to contractual freedom, which was likened to the old woman - is a modern concept.
But transcending the barriers of time and space seems to be an urgent need, perhaps because this …
Serving Only To Oppress: An Intersectional And Critical Race Analysis Of Constitutional Originalism Inflicting Harm, Ethan Dawson
Serving Only To Oppress: An Intersectional And Critical Race Analysis Of Constitutional Originalism Inflicting Harm, Ethan Dawson
Indiana Journal of Law and Social Equality
“[T]imes can blind us to certain truths and later generations can see that laws once thought necessary and proper in fact serve only to oppress.” - Justice Anthony Kennedy, Lawrence v. Texas (2003)
This Note will first focus on a historical analysis of originalist constitutional interpretation, drawing attention to initial disparities in the Constitution incompatible with our current social context. It will discuss modern originalism as a method of perpetuating systemic shortcomings, drawing specific attention to originalist interpretation as a method of oppression against white women and people of color, specifically Black women. In analyzing the harm originalism does to …
Qualified Immunity And The Unintentional, Or Intentional, Chill On Free Speech, Madison Heiney
Qualified Immunity And The Unintentional, Or Intentional, Chill On Free Speech, Madison Heiney
Indiana Journal of Law and Social Equality
No abstract provided.
Age Before Fundamental Right? Resolving The Contradiction Presented By An Age Restriction On Running For Executive Offices In Montana's Constitution, Kevin Frazier
Barry Law Review
The Montana Constitution guarantees that “[t]he rights of persons under 18 years of age shall include, but not be limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.” Adults receive similarly strong protections. According to Article II, Section 15, of the Montana Constitution, “[a] person 18 years of age or older is an adult for all purposes,” except for legislated limits on the legal age to purchase alcohol.
It follows that all Montanans have a constitutional claim to the fundamental right that "[a]ll elections shall be free and …
Concerning United States Constitutional War Powers, Marcus Armstrong
Concerning United States Constitutional War Powers, Marcus Armstrong
St. Mary's Law Journal
The United States faces a future in which the possibility of a conventional, great-power conflict is elevated. This is because of a constitutional interpretation that has altered United States constitutional war powers significantly. Specifically, the interpretation gives the president the authority to initiate and escalate war or hostilities unilaterally. In this Article, I reexamine that specific historical interpretation and find it wanting. I then offer a different historical interpretation, drawing upon other contemporary writers as well as upon historical events in order to give a more complete and nuanced understanding of the context in which the early American leaders developed …
Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland
Using Bruen To Overturn New York Times V. Sullivan, Michael L. Smith, Alexander S. Hiland
Pepperdine Law Review
While New York Times Co. v. Sullivan is a foundational, well-regarded First Amendment case, Justice Clarence Thomas has repeatedly called on the Court to revisit it. Sullivan, Thomas claims, is policy masquerading as constitutional law, and it makes almost no effort to ground itself in the original meaning of the First and Fourteenth Amendments. Thomas argues that at the time of the founding, libelous statements were routinely subject to criminal prosecution—including libel of public figures and public officials. This Essay connects Justice Thomas’s calls to revisit Sullivan to his recent opinion for the Court in New York State Rifle & …
No Sense Of Decency, Kathryn E. Miller
No Sense Of Decency, Kathryn E. Miller
Washington Law Review
For nearly seventy years, the Court has assessed Eighth Amendment claims by evaluating “the evolving standards of decency that mark the progress of a maturing society.” In this Article, I examine the evolving standards of decency test, which has long been a punching bag for critics on both the right and the left. Criticism of the doctrine has been fierce but largely academic until recent years. Some fault the test for being too majoritarian, while others argue that it provides few constraints on the Justices’ discretion, permitting their personal predilections to rule the day. For many, the test is seen …
Free Market State (Of Mind): Antitrust Federalism, John J. Flynn And The Utah Constitution’S Free Market Clause, Jorge L. Contreras
Free Market State (Of Mind): Antitrust Federalism, John J. Flynn And The Utah Constitution’S Free Market Clause, Jorge L. Contreras
Utah Law Review
The Utah Constitution states that “[i]t is the policy of the state of Utah that a free market system shall govern trade and commerce in this state to promote the dispersion of economic and political power and the general welfare of all the people.” Utah’s so-called Free Market Clause, adopted in 1992, is unique among the constitutions of the fifty states. Through an excavation of the historical record and contemporary literature, this Article shows that the Free Market Clause owes its existence to the influence of Professor John J. Flynn of the University of Utah, whose pioneering work on antitrust …
Hair Me Out: Why Discrimination Against Black Hair Is Race Discrimination Under Title Vii, Alexis Boyd
Hair Me Out: Why Discrimination Against Black Hair Is Race Discrimination Under Title Vii, Alexis Boyd
American University Journal of Gender, Social Policy & the Law
In May 2010, Chastity Jones sought employment as a customer service representative at Catastrophe Management Solutions (“CMS”), a claims processing company located in Mobile, Alabama. When asked for an inperson interview, Jones, a Black woman, arrived in a suit and her hair in “short dreadlocks,” or locs, a type of natural hairstyle common in the Black community. Despite being qualified for the position, Jones would later have her offer rescinded because of her hair. CMS claimed that locs “tend to get messy” and violated the “neutral” dress code and hair policy requiring employees to be “professional and business-like.” Therefore, CMS …
A Country In Crisis: A Review Of How The Illegitimate Supreme Court Is Rendering Illegitimate Decisions And Doing Damage That Will Not Soon Be Undone., Regina L. Ramsey ,Esq
A Country In Crisis: A Review Of How The Illegitimate Supreme Court Is Rendering Illegitimate Decisions And Doing Damage That Will Not Soon Be Undone., Regina L. Ramsey ,Esq
Journal of Race, Gender, and Ethnicity
This article will discuss in detail exactly how the court is illegitimate and makes decisions that are illegitimate, using examples from the October 2021 term. It will also explain why action needs to be taken immediately to reign in this run-away Court to restore public trust. As discussed herein, we cannot sit by and patiently wait for the Court to right itself over time because there are important issues on the current docket, such as race-conscious admissions policies of colleges and universities to ensure student bodies are diverse as future leaders are prepared to live and work in a diverse …
Depoliticizing The Supreme Court: How To Rein In Those Answerable To No One?, Dana Ortiz-Tulla ,Esq
Depoliticizing The Supreme Court: How To Rein In Those Answerable To No One?, Dana Ortiz-Tulla ,Esq
Journal of Race, Gender, and Ethnicity
This Note will discuss some of the Commission’s findings and other interesting suggestions to determine whether it is possible to rein in the modern-day Court. Part I will explain the inherently political nature of the Supreme Court. Part II will briefly present how the Supreme Court acquired its power. Part III will discuss several prominent proposals for Supreme Court reform. Finally, Part IV will examine whether any recommendations may depoliticize the Court.
Genealogy Sites And Adoptions–Connecting Families Or Ruining Them?, Taylor Bialek
Genealogy Sites And Adoptions–Connecting Families Or Ruining Them?, Taylor Bialek
Touro Law Review
No abstract provided.
Alito Versus Roe V. Wade: Dobbs As A Means Of Circumvention, Avoidance, Attenuation And Betrayal Of The Constitution, Antony Hilton
Alito Versus Roe V. Wade: Dobbs As A Means Of Circumvention, Avoidance, Attenuation And Betrayal Of The Constitution, Antony Hilton
American University Journal of Gender, Social Policy & the Law
There can be no argument that Justice Alito is a learned justice of great knowledge and reason, and has a superb grasp of the law. As such, despite any opposition to or disagreement with his legal opinions, he is deserving of respect for his intellectual prowess, in general and as it relates to the Constitution. Notwithstanding all the aforementioned, wrong is wrong.
Deeply Rooted Or Deeply Flawed? A Constitutional Criticism Of Dobbs And Roe's Potential Resurrection, Julian Whitley
Deeply Rooted Or Deeply Flawed? A Constitutional Criticism Of Dobbs And Roe's Potential Resurrection, Julian Whitley
American University Journal of Gender, Social Policy & the Law
Abortion has been a divisive issue in this country for decades. Some believe that abortion should be illegal under any circumstance, others believe that abortion under certain circumstances should be legal, and still others believe that abortion should be legal in all circumstances. The issue of abortion was initially decided by the Court in 1973 under Roe v. Wade, where the Court devised a trimester approach.
The Concept Of “Elderly Citizens” In The Indonesian Constitution: A Critical Analysis, Ari Wahyudi Hertanto, Satya Arinanto, Jufrina Rizal
The Concept Of “Elderly Citizens” In The Indonesian Constitution: A Critical Analysis, Ari Wahyudi Hertanto, Satya Arinanto, Jufrina Rizal
Indonesia Law Review
Human existence is the most important element of the law and the state. They contribute greatly to the growth and development of a nation. Despite their great contribution, all human beings will experience a gradual decrease in their physical and psychological capacity due to ageing. According to the latest Central Statistics Agency report, there exists 29.3 million elderly citizens in Indonesia. This figure is equivalent to 10.82% of the total population. To anticipate this demographic condition, the government ought to ensure the welfare of its elderly citizens in accordance with the mandate of the 1945 Constitution. However, the 1945 Constitution …
Reconstituting The United States: Could An Article V Convention Prevent The Next January 6?, Paul G. Rando
Reconstituting The United States: Could An Article V Convention Prevent The Next January 6?, Paul G. Rando
University of Cincinnati Law Review
No abstract provided.
The Constitutional Reshaping Of South Africa's Succession Laws, François Du Toit
The Constitutional Reshaping Of South Africa's Succession Laws, François Du Toit
Journal of Civil Law Studies
The South African Constitution of 1996 has had a significant im-pact on all the branches of South African law, including its succes-sion laws. The Constitution has transformatively reshaped im-portant aspects of South Africa's succession laws over the past two-and-a-half decades. This Article surveys the reshaping of two such aspects critically, namely (i) the extension of spousal inheritance under the Intestate Succession Act of 1987 and the Wills Act of 1953 as well as the extension of parental inheritance under the former statute; and (ii) the limitation of testamentary freedom. The afore-mentioned developments occurred by and large at the hands of …
Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash
Respeaking The Bill Of Rights: A New Doctrine Of Incorporation, Kurt Lash
Indiana Law Journal
The incorporation of the Bill of Rights against the states by way of the Fourteenth Amendment raises a host of textual, historical, and doctrinal difficulties. This is true even if (especially if) we accept the Fourteenth Amendment as having made the original Bill of Rights binding against the states. Does this mean we have two Bills of Rights, one applicable against the federal government with a “1791” meaning and a second applicable against the state governments with an “1868” meaning? Do 1791 understandings carry forward into the 1868 amendment? Or do 1868 understandings of the Bill of Rights carry backward …
Systemic Racism In The U.S. Immigration Laws, Kevin R. Johnson
Systemic Racism In The U.S. Immigration Laws, Kevin R. Johnson
Indiana Law Journal
This Essay analyzes how aggressive activism in a California mountain town at the tail end of the nineteenth century commenced a chain reaction resulting in state and ultimately national anti-Chinese immigration laws. The constitutional immunity through which the Supreme Court upheld those laws deeply affected the future trajectory of U.S. immigration law and policy.
Responding to sustained political pressure from the West, Congress in 1882 passed the Chinese Exclusion Act, an infamous piece of unabashedly racist legislation that commenced a long process of barring immigration from all of Asia to the United States. In upholding the Act, the Supreme Court …