Law Commons^™

Where To Place The “Nones” In The Church And State Debate? Empirical Evidence From Establishment Clause Cases In Federal Court, Gregory C. Sisk, Michael Heise

St. John's Law Review

In this third iteration of our ongoing empirical examination of religious liberty decisions in the lower federal courts, we studied all digested Establishment Clause decisions by federal circuit and district court judges from 2006 through 2015. The first clause of the First Amendment to the United States Constitution directs that “Congress shall make no law respecting an establishment of religion.” That provision has generated decades of controversy regarding the appropriate role of religion in public life.

Holding key variables constant, we found that Catholic judges approved Establishment Clause claims at a 29.6% rate, compared with a 41.5% rate before non-Catholic …

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.

Justifying The Supreme Court’S Standards Of Review, R. Randall Kelso

St. Mary's Law Journal

Abstract forthcoming.

Fields V. Speaker Of Pennsylvania House Of Representatives, Heidi Moore

NYLS Law Review

No abstract provided.

Why Do The Poor Not Have A Constitutional Right To File Civil Claims In Court Under Their First Amendment Right To Petition The Government For A Redress Of Grievances?, Henry Rose

Seattle University Law Review

Since 1963, the United States Supreme Court has recognized a constitutional right for American groups, organizations, and persons to pursue civil litigation under the First Amendment right to petition the government for redress of grievances. However, in three cases involving poor plaintiffs decided by the Supreme Court in the early 1970s—Boddie v. Connecticut,2 United States v. Kras,3 and Ortwein v. Schwab4—the Supreme Court rejected arguments that all persons have a constitutional right to access courts to pursue their civil legal claims.5 In the latter two cases, Kras and Ortwein, the Supreme Court concluded that poor persons were properly barred from …

Signed Opinions, Concurrences, Dissents, And Vote Counts In The U.S. Supreme Court: Boon Or Bane? (A Response To Professors Penrose And Sherry), Joan Steinman

Akron Law Review

Some commentators recently have argued for changes in how United States Supreme Court Justices communicate with everyone except perhaps other Justices of the Supreme Court and the Justices' assistants. Specifically, some commentators have urged that signed opinions and separate opinions, such as concurrences and dissents, stop being published in the official reports. One commentator also has advocated non‑publication of the vote count in Supreme Court decisions. Another has demanded unanimity, as required by due process.

In this piece, I offer my thoughts in response to these proposals.

I argue several reasons to doubt that a prohibition on publication of concurring …

The Arms Dealer Who Cries, :“First Amendment”, Gustave Passanante

Touro Law Review

No abstract provided.

Electronic Social Media: Friend Or Foe For Judges, M. Sue Kurita

St. Mary's Journal on Legal Malpractice & Ethics

The use of electronic social communication has grown at a phenomenal rate. Facebook, the most popular social networking website, has over 1,968,000,000 users—a number that has exponentially grown since its inception in 2004. The number of judges accessing and using electronic social media (ESM) has also increased. However, unlike the general population, judges must consider constitutional, ethical, technical, and evidentiary implications when they use and access ESM. The First Amendment forbids “abridging the freedom of speech” and protects the expression of personal ideas, positions, and views. However, the American Bar Association’s Model Code of Judicial Conduct and the Texas Code …

A Progressive Mind: Louis D. Brandeis And The Origins Of Free Speech, Elizabeth Todd Byron

Touro Law Review

No abstract provided.

Human Rights Law And Racial Hate Speech Regulation In Australia: Reform And Replace?, Dr. Alan Berman

Georgia Journal of International & Comparative Law

No abstract provided.

Justice Brennan's Gender Jurisprudence, Rebecca Korzec

Akron Law Review

However, less attention has been focused on Justice Brennan's dramatic impact on the Supreme Court's gender jurisprudence. More than any other member of the Court, Justice Brennan recognized the complexity and pervasiveness of sex discrimination and its costs to society as a whole. Brennan's opinions recognized that sex differentiation is largely cultural in origin, rather than based on "real" gender differences. As a result, Justice Brennan created a truly independent gender jurisprudence, eventually emerging as the architect of the Supreme Court's contemporary test for evaluating claims of sex-based discrimination.

Understanding the significance of Brennan's contribution requires an appreciation of the …

Religion And First Amendment Prosecutions: An Analysis Of Justice Black's Constitutional Interpretation, Constance Mauney

Pepperdine Law Review

Justice Hugo L. Black served on the United States Supreme Court over a period of thirty-four years, encompassing Supreme Court terms from 1937 to 1971. During this period, the subject of the constitutional limitations of the freedom of religion was increasingly subjected to intense social pressures. Justice Black figured prominently in the development of constitutional law as the Supreme Court attempted to give meaning to the establishment and free exercise clause of the first amendment. He wrote the majority opinions which dealt with the establishment clause in the Everson, McCulloin, Engel and Torcaso cases. Yet, on later occasions, Justice Black …

Analysis Of A First Amendment Challenge To Rent-A-Judge Proceedings , Perry L. Glantz

Pepperdine Law Review

No abstract provided.

The Trial, The Bench, The Net, And The First Amendment: The Possibilities Of Reform In New York State Judicial Elections, Robert Magee

Touro Law Review

No abstract provided.

Ethics In Legal Education: An Augmentation Of Legal Realism, Gerald R. Ferrera

Pepperdine Law Review

No abstract provided.

The October 2008 Term: First Amendment And Then Some, Burt Neuborne

Touro Law Review

Liberals must acknowledge a dirty little secret about American constitutional law; a secret that the Warren Court made apparent, though it had existed from the day John Marshall asserted the power of judicial review in a Constitution that says nothing about it. The secret is that there is no serious theory explaining or justifying what courts actually do when they strike down a statute as unconstitutional.

The Warren years were enormously important in moving the country forward. I do not know what we would have done without the wisdom and courage of the Court. But when you start looking for …

American Academy Of Religion V. Napolitano, Margaret Laufman

NYLS Law Review

No abstract provided.

From One [Expletive] Policy To The Next: The Fcc's Regulation Of "Fleeting Expletives" And The Supreme Court's Response, Brandon J. Almas

Federal Communications Law Journal

After the broadcast of the 2003 Golden Globe Awards, during which the lead singer from U2 uttered an expletive on national television, the FCC revisited its prior policy on the use of expletives on the airwaves and declared, for the first time, that "fleeting expletives" are offensive according to community standards and are therefore finable. In a lawsuit filed in the Second Circuit Court of Appeals, Fox Television Stations, Inc. along with a number of other broadcasters argued that the FCC's new policy was arbitrary and capricious under the Administrative Procedure Act and unconstitutional under the First Amendment. The Second …

Playing Games With The First Amendment: Are Video Games Speech And May Minors' Access To Graphically Violent Video Games Be Restricted?, Gregory K. Laughlin

University of Richmond Law Review

No abstract provided.

Judicial Independence And Accountability Meet Extra-Judicial Speech And The First Amendment: An Uneasy Co-Existence, Honorable Wendell L. Griffen

University of Arkansas at Little Rock Law Review

No abstract provided.

Richard Sheppard Arnold: A Distinguished Jurist, A Loyal Colleague And A Good Friend, Gerald W. Heaney

University of Arkansas at Little Rock Law Review

No abstract provided.

Republican Party Of Minnesota V. White: The Lifting Of Judicial Speech Restraint, David B. Bogard

University of Arkansas at Little Rock Law Review

No abstract provided.

Jon Newman’S Theory Of Disparagement And The First Amendment In The Administrative State, Edward L. Rubin

NYLS Law Review

No abstract provided.

Rights And Freedoms Under The State Constitution: A New Deal For Welfare Rights, Sandra M. Stevenson, Eve Cary, Mary Falk, Helen Hershkoff, Robert A. Heverly

Touro Law Review

No abstract provided.

Free Speech: The Status Of The First Amendment, Martin B. Margulies

Touro Law Review

No abstract provided.

The Supreme Court's Land Use Decisions, Hon. Leon D. Lazer

Touro Law Review

No abstract provided.

Employment Discrimination: Recent Developments In The Supreme Court, Eileen Kaufman

Touro Law Review

No abstract provided.

Toward Meaningful Judicial Elections: A Case For Reform Of Canon 7, Michele Radosevich

Seattle University Law Review

This Comment argues that elections can give us good judges who are both accountable to the voters and able to decide cases impartially. To accomplish this, we must, in the words of one local media commentator, “take off the muzzle and allow judges to discuss issues.” But before one can propose change, one should understand the present system and the purposes it was designed to serve. Part II of this Comment examines Canon 7 of the Washington Code of Judicial Conduct and the balance it strikes between accountability and impartiality. Part III explores how the Canon has been interpreted in …

Abrams V. United States: Remembering The Authors Of Both Opinions, James F. Fagan Jr.

Touro Law Review

No abstract provided.

Freedom Of Speech And The Press

Touro Law Review

No abstract provided.