Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 16 of 16

Full-Text Articles in Law

Restoring Free Exercise Protections By Limiting Them: Preventing A Repeat Of Smith, James M. Donovan Sep 1996

Restoring Free Exercise Protections By Limiting Them: Preventing A Repeat Of Smith, James M. Donovan

Law Faculty Scholarly Articles

Employment Division, Department of Human Resources of Oregon v. Smith effectively removed all protections traditionally accorded the free exercise of religion. RFRA was designed to undo the effects of this decision by presumably setting back the clock of jurisprudence to the day before Smith. Even if RFRA is found to be constitutional, it will still, of itself, be ultimately ineffective since it undoes the effects of Smith without addressing the confluence of issues which made a decision like Smith likely. The clock may be set back, but without significant changes it can be expected to run forward again in much ...


Describing Without Circumscribing: Questioning The Construction Of Gender In The Discourse Of Intimate Violence, Phyllis Goldfarb Mar 1996

Describing Without Circumscribing: Questioning The Construction Of Gender In The Discourse Of Intimate Violence, Phyllis Goldfarb

Boston College Law School Faculty Papers

In this Article, Professor Goldfarb examines the construction of gender roles in the discourse on intimate violence. The Article argues that this discourse assumes that male violence against female intimates represents the problems of battering in its entirety. In doing so, the discourse renders invisible the battering that occurs outside this discourse, most notably battering within same-sex relationships. The Article focuses on how the gender assumptions in the domestic violence discourse affected the representation of the Framingham Eight, a group of women who killed their batterers and were incarcerated in the women’s prison in Framingham, Massachusetts. These women petitioned ...


State And Federal Constitutional Law Developments, Rosalie Levinson Jan 1996

State And Federal Constitutional Law Developments, Rosalie Levinson

Law Faculty Publications

No abstract provided.


The Slavery Of Emancipation, Guyora Binder Jan 1996

The Slavery Of Emancipation, Guyora Binder

Journal Articles

The Thirteenth Amendment abolishes the institution of slavery rather than freeing individual slaves. Yet it quickly came to stand for little more than granting universal rights to make labor contracts and to leave service. This article develops a distinction between abolishing an institution and reclassifying individuals within it. Drawing on the comparative history of slavery, it shows that the institution of slavery has generally included mechanisms for the manumission of slaves and their passage into a liminal status combining self-ownership with social subordination and relative isolation. A critical account of the Antelope litigation shows that proponents of mass manumission still ...


The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot Jan 1996

The Recognition And Enforcement Of Foreign Equitable Remedies And Other Types Of Non-Money Judgments In United States And French Courts: A Comparative Analysis, Noele Sophie Rigot

LLM Theses and Essays

Courts of industrialized nations are often faced with adjudication of cases which involve foreign components. It is common for those courts to be asked by individuals or legal entities from a transnational environment to adjudicate with regard to some elements already adjudged in a different legal system as if it were a local judgment. The question that arises is how effects should be given when dealing with prior adjudications. Most countries agree to recognize some effects determined by foreign jurisdictions, as long as those determinations meet standards that guarantee proper integration of the foreign decision into the domestic setting. These ...


Domesticating Federal Indian Law, Philip P. Frickey Jan 1996

Domesticating Federal Indian Law, Philip P. Frickey

Faculty Scholarship

No abstract provided.


The Term Limits Case, Bennett L. Gershman Jan 1996

The Term Limits Case, Bennett L. Gershman

Pace Law Faculty Publications

In U.S. Term Limits, the Court reviewed an amendment to the Arkansas Constitution, adopted in 1992, that made a candidate for the U.S. Senate or House of Representatives ineligible to have his or her name placed on the ballot for national election if that person had previously been elected to three or more terms as a member of the House, or two or more terms as a member of the Senate. Following a taxpayer's complaint seeking declaratory relief, the state circuit court held that this amendment violated the Qualifications Clauses in Article I, sections 2 and 3 ...


1996-97 Supreme Court Preview: Mock Arguments In Clinton V. Jones, Michael J. Gerhardt, Rodney A. Smolla Jan 1996

1996-97 Supreme Court Preview: Mock Arguments In Clinton V. Jones, Michael J. Gerhardt, Rodney A. Smolla

Faculty Publications

No abstract provided.


The Judicial Safeguards Of Federalism, John C. Yoo Jan 1996

The Judicial Safeguards Of Federalism, John C. Yoo

Faculty Scholarship

No abstract provided.


The Continuation Of Politics By Other Means: The Original Understanding Of War Powers, John C. Yoo Jan 1996

The Continuation Of Politics By Other Means: The Original Understanding Of War Powers, John C. Yoo

Faculty Scholarship

No abstract provided.


Defensively Invoking Treaties In American Courts--Jurisdictional Challenges Under The U.N. Drug Trafficking Convention By Foreign Defendants Kidnapped Abroad By U.S. Agents, Thomas Michael Mcdonnell Jan 1996

Defensively Invoking Treaties In American Courts--Jurisdictional Challenges Under The U.N. Drug Trafficking Convention By Foreign Defendants Kidnapped Abroad By U.S. Agents, Thomas Michael Mcdonnell

Pace Law Faculty Publications

This Article unravels the non-self-executing treaty doctrine, examines the invocation of a treaty as a defense to governmental action, and develops a test for when an individual (rather than a government) may assert a treaty defensively in state or federal courts. Lastly, this Article applies this test to state-sponsored kidnapping and the U.N. Convention Against Illicit Traffic in Narcotic Drugs and Psychotropic Substances. The parties to this treaty, which was sponsored by the United States, barred one country's law enforcement agents from operating without permission on another country's soil and rejected a provision requiring a country to ...


The Promise Of State Constitutionalism: Can It Be Fulfilled In Shef V. O'Neill?, Gayl S. Westerman Jan 1996

The Promise Of State Constitutionalism: Can It Be Fulfilled In Shef V. O'Neill?, Gayl S. Westerman

Pace Law Faculty Publications

This Article reflects on the anomaly of the superior court's decision in Sheff in light of this recent history and recommends that the Connecticut Supreme Court use an alternative, analytical framework based on the Connecticut Constitution to decide the Sheff appeal. This independent approach is equally available to all state courts seeking to resolve fundamental issues under their own constitutions. Only by speaking in a clear, state voice can state courts balance the constitutional vision of the federal courts and fulfill the promise of the state constitutional law movement.


Suspended Over The Abyss: A City's Quest For Local Autonomy In Institutional Reform Litigation, Michelle S. Simon Jan 1996

Suspended Over The Abyss: A City's Quest For Local Autonomy In Institutional Reform Litigation, Michelle S. Simon

Pace Law Faculty Publications

This Article examines the conflict between preserving local autonomy and remedying constitutional violations in the context of school desegregation. Part I articulates the problem by exploring the role of the city and its part in institutional reform. The first section explains what is meant by local autonomy. The second section examines what constitutes institutional reform. The third section discusses an example of the clash between local autonomy and institutional reform in the context of the ongoing struggle in Kansas City, Missouri. Part II examines how the Supreme Court has viewed the relationship between the remedial powers of district courts and ...


Developments In Constitutional Law: The 1994-95 Term, Hester Lessard, Bruce Ryder, David Schneiderman, Margot Young Jan 1996

Developments In Constitutional Law: The 1994-95 Term, Hester Lessard, Bruce Ryder, David Schneiderman, Margot Young

Faculty Publications

This essay explores the apparent triumph of the individual of classical liberalism in Supreme Court decision making. Our analysis examines the particular way in which this political imagery of the individual interacts with judicial assumptions about important social institutions: the family, religion, media, and the state. What is revealed is the judicial adoption of an intricate social and political map in which abstract individualism combines with, and often masks, traditional, conservative images of social order and moral choice.


Plenary Power And Constitutional Outcasts: Federal Power, Critical Race Theory, And The Second, Ninth, And Tenth Amendments , Nicholas J. Johnson Jan 1996

Plenary Power And Constitutional Outcasts: Federal Power, Critical Race Theory, And The Second, Ninth, And Tenth Amendments , Nicholas J. Johnson

Faculty Scholarship

Rights and power in modern American constitutionalism are conceptually interdependent: "We have no way of thinking about constitutional rights independent of what powers it would be prudent or desirable for government to have." In an era where substantive boundaries on federal power seem ephemeral, this suggests that what we call rights may be primarily fair weather or illusory barriers to the exercise of power.From a majoritarian perspective, the shifting boundary between rights and powers, and the capacity of power to consume rights, may be unproblematic and even attractive. If the exercise of plenary power reflects majority will, then this ...


United States Supreme Court: 1995 & 1996 Term, Paul C. Giannelli Jan 1996

United States Supreme Court: 1995 & 1996 Term, Paul C. Giannelli

Faculty Publications

No abstract provided.