Open Access. Powered by Scholars. Published by Universities.®
- Discipline
-
- Constitutional Law (29)
- Civil Rights and Discrimination (6)
- First Amendment (4)
- Legal History (4)
- Jurisprudence (3)
-
- Law and Gender (3)
- Law and Society (3)
- Religion Law (3)
- Arts and Humanities (2)
- Comparative and Foreign Law (2)
- Fourth Amendment (2)
- Health Law and Policy (2)
- History (2)
- History of Gender (2)
- Legal (2)
- Legal Studies (2)
- National Security Law (2)
- Sexuality and the Law (2)
- Social and Behavioral Sciences (2)
- Supreme Court of the United States (2)
- Women's History (2)
- Criminal Law (1)
- Criminal Procedure (1)
- Education Law (1)
- Insurance Law (1)
- Intellectual Property Law (1)
- International Trade Law (1)
- Internet Law (1)
- Judges (1)
- Institution
-
- William & Mary Law School (6)
- The University of Akron (4)
- University of Tennessee College of Law (4)
- Case Western Reserve University School of Law (3)
- Chicago-Kent College of Law (3)
-
- University of North Carolina School of Law (3)
- American University Washington College of Law (2)
- George Washington University Law School (2)
- Northwestern Pritzker School of Law (2)
- Villanova University Charles Widger School of Law (2)
- Belmont University (1)
- Boston University School of Law (1)
- Florida A&M University College of Law (1)
- Louisiana State University Law Center (1)
- Maurer School of Law: Indiana University (1)
- New York Law School (1)
- Southern Methodist University (1)
- University at Buffalo School of Law (1)
- University of Arkansas, Fayetteville (1)
- University of Florida Levin College of Law (1)
- University of Pittsburgh School of Law (1)
- University of Washington School of Law (1)
- Valparaiso University (1)
- Washington and Lee University School of Law (1)
- Yeshiva University, Cardozo School of Law (1)
- Publication
-
- Faculty Publications (7)
- Popular Media (5)
- Akron Law Faculty Publications (4)
- College of Law Faculty Scholarship (4)
- All Faculty Scholarship (3)
-
- Articles (3)
- Articles in Law Reviews & Other Academic Journals (2)
- Faculty Working Papers (2)
- GW Law Faculty Publications & Other Works (2)
- Journal Articles (2)
- Working Paper Series (2)
- Articles & Chapters (1)
- Articles by Maurer Faculty (1)
- Faculty Journal Articles and Book Chapters (1)
- Faculty Scholarship (1)
- Journal Publications (1)
- Law Faculty Publications (1)
- Law Faculty Scholarship (1)
- Scholarly Articles (1)
- School of Law Faculty Publications and Presentations (1)
- UF Law Faculty Publications (1)
Articles 31 - 46 of 46
Full-Text Articles in Law
Advice And Consent Vs. Silence And Dissent? The Contrasting Roles Of The Legislature In U.S. And U.K. Judicial Appointments, Mary Clark
Articles in Law Reviews & Other Academic Journals
The Senate‘s role in judicial appointments has come under increasingly withering criticism for its uninformative and spectacle-like nature. At the same time, Britain has established two new judicial appointment processes - to accompany its new Supreme Court and existing lower courts - in which Parliament plays no role. This Article seeks to understand the reasons for the inclusion and exclusion of the legislature in the U.S. and U.K. judicial appointment processes adopted at the creation of their respective Supreme Courts.
The Article proceeds by highlighting the ideas and concerns motivating inclusion of the legislature in judicial appointments in the early …
Federalism, Lochner, And The Individual Mandate, Peter J. Smith
Federalism, Lochner, And The Individual Mandate, Peter J. Smith
GW Law Faculty Publications & Other Works
The individual mandate provision in the Affordable Care Act requires individuals to obtain minimum essential health insurance coverage. This provision has been the focus of legal attacks on the Act. Opponents of the mandate have contended that Congress lacks power to compel individuals to engage in a private, commercial transaction. These claims are most sensibly understood as libertarian objections - that is, objections to government attempts to regulate certain personal decisions or actions, on the ground that those decisions or actions are for the individual, and only the individual, to make or take. As such, as a doctrinal matter this …
On The Contemporary Meaning Of Korematsu: 'Liberty Lies In The Hearts Of Men And Women', David A. Harris
On The Contemporary Meaning Of Korematsu: 'Liberty Lies In The Hearts Of Men And Women', David A. Harris
Articles
In just a few years, seven decades will have passed since the U.S. Supreme Court’s decision in Korematsu v. U.S., one of the most reviled of all of the Court’s cases. Despised or not, however, similarities between the World War II era and our own have people looking at Korematsu in a new light. When the Court decided Korematsu in 1944, we were at war with the Japanese empire, and with this came considerable suspicion of anyone who shared the ethnicity of our foreign enemies. Since 2001, we have faced another external threat – from the al Queda terrorists – …
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.
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.
Acta's Constitutional Problems: The Treaty Is Not A Treaty, Sean Flynn
Acta's Constitutional Problems: The Treaty Is Not A Treaty, Sean Flynn
Articles in Law Reviews & Other Academic Journals
On the eve of the United States’ entry into the Anti-Counterfeiting Trade Agreement (“ACTA”), there is considerable confusion as to just what legal effect the agreement will have. In written answers to Senator Ron Wyden, the United States Trade Representative (“USTR”) went to lengths to describe ACTA as non-binding, asserting that “ACTA does not constrain Congress’ authority to change U.S. law,” and that it would operate only as an “Executive Agreement” that “can be implemented without new legislation.” But European negotiators have described the agreement to their legislature in very different terms, asserting that ACTA is “a binding international agreement …
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 …
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.
The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke
The Political Economy Of Criminal Procedure Litigation, Anthony O'Rourke
Journal Articles
Criminal procedure has undergone several well-documented shifts in its doctrinal foundations since the Supreme Court first began to apply the Constitution’s criminal procedure protections to the States. This Article examines the ways in which the political economy of criminal litigation – specifically, the material conditions that determine which litigants are able to raise criminal procedure claims, and which of those litigants’ cases are appealed to the United States Supreme Court – has influenced these shifts. It offers a theoretical framework for understanding how the political economy of criminal litigation shapes constitutional doctrine, according to which an increase in the number …
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 …
Framing The Fourth, Tracey Maclin, Julia Mirabella
Framing The Fourth, Tracey Maclin, Julia Mirabella
UF Law Faculty Publications
Book Review of "The Fourth Amendment: Origins and Original Meaning", 602-1791. By William J. Cuddihy. Oxford and New York: Oxford Press. 2009. Pp. lxviii, 940. $165. History is again an important element of the Supreme Court’s Fourth Amendment analysis. In Wyoming v. Houghton, Justice Scalia’s opinion for the Court announced that a historical inquiry is the starting point for every Fourth Amendment case. William Cuddihy’s book on the origins and original meaning of the Fourth Amendment will undoubtedly assist the Justices (and everyone else) in understanding the history of search and seizure law. Cuddihy’s historical analysis is unprecedented. As Justice …
Pearson V. Callahan And Qualified Immunity: Impact On First Amendment Law, David L. Hudson Jr.
Pearson V. Callahan And Qualified Immunity: Impact On First Amendment Law, David L. Hudson Jr.
Law Faculty Scholarship
An essay on Pearson v. Callahan and its impact on First Amendment Law.
The Sacrifice Of The New Originalism, Thomas Colby
The Sacrifice Of The New Originalism, Thomas Colby
GW Law Faculty Publications & Other Works
This Article argues that Originalism has achieved its intellectual respectability only at the necessary expense of its ballyhooed promise of constraint. The Article recounts the theoretical advances of the New Originalism and argues that the New Originalism is substantially more defensible than was the Old one and is much better positioned to answer the scholarly critiques that demolished its predecessor. The Article further explains that these benefits have, however, come at the cost of judicial constraint. By its very nature - and to a far greater degree than its proponents have tended to recognize - the New Originalism is a …
Constitutional Versus Administrative Ordering In An Era Of Globalization And Privatization: Reflections On Sources Of Legitimation In The Post-Westphalian Polity, Michel Rosenfeld
Constitutional Versus Administrative Ordering In An Era Of Globalization And Privatization: Reflections On Sources Of Legitimation In The Post-Westphalian Polity, Michel Rosenfeld
Articles
The current trend towards globalization and privatization has resulted in the proliferation of a plurality of legal regimes that lack the unity and hierarchy guaranteed by a working constitution in the typical nation-state. One important question raised by these developments is whether a suitable constitutional ordering and constitutional legitimation can succeed at the transnational level. In the alternative, it has been suggested that administrative ordering and legitimation may suffice, provided constitutional anchoring remains firm within the confines of the nation-state. With this in mind, this article explores the conceptual underpinnings of the contrast between a constitutional regime and an administrative …
The Extraordinary Mrs. Shipley: How The United States Controlled International Travel Before The Age Of Terrorism, Jeffrey D. Kahn
The Extraordinary Mrs. Shipley: How The United States Controlled International Travel Before The Age Of Terrorism, Jeffrey D. Kahn
Faculty Journal Articles and Book Chapters
Terrorist watchlists used to restrict travel into and out of the United States owe their conceptual origins to Mrs. Ruth B. Shipley, the Chief of the State Department’s Passport Division from 1928 to 1955. Mrs. Shipley was one of the most powerful people in the federal government for almost thirty years, but she is virtually unknown today. She had the unreviewable discretion to determine who could leave the United States, for how long, and under what conditions.
This article examines how Mrs. Shipley exercised her power through a detailed study of original documents obtained from the National Archives. It then …
Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari Ezra Waldman
Exceptions: The Criminal Law's Illogical Approach To Hiv-Related Aggravated Assaults, Ari Ezra Waldman
Articles & Chapters
This Article identifies logical and due process errors in HIV-related aggravated assault cases, which usually involve an HIV-positive individual having unprotected sex without disclosing his or her HIV status. While this behavior should not be encouraged, this Article suggests that punishing this conduct through a charge of aggravated assault - which requires a showing that the defendant’s actions were a means likely to cause grievous bodily harm or death - is fraught with fallacies in reasoning and runs afoul of due process. Specifically, some courts use the "rule of thumb" that HIV can possibly be transmitted through bodily fluids as …