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Full-Text Articles in Law

Choice Programs And Market-Based Separationism, Paul E. Salamanca Oct 2002

Choice Programs And Market-Based Separationism, Paul E. Salamanca

Law Faculty Scholarly Articles

The Supreme Court's recent decision in Zelman v. Simmons-Harris appears to clear the way for a wide variety of educational and charitable choice plans. In this decision, the Court upheld against Establishment Cause Challenge a formally neutral school choice program that encompassed a wide variety of options in the public and private sector, including private sectarian schools. The Court reasoned that, when the government makes aid available to a broad class of recipients without regard to their religious or non-religious affiliation, and when the recipients have a genuine choice as to whether to obtain that aid from a religious ...


The Pennsylvania Constitution's Protection Of Free Expression, Seth F. Kreimer Oct 2002

The Pennsylvania Constitution's Protection Of Free Expression, Seth F. Kreimer

Faculty Scholarship at Penn Law

No abstract provided.


Means/Ends Analysis In Copyright Law: Eldred V. Ashcroft In One Act, Dan T. Coenen, Paul J. Heald Oct 2002

Means/Ends Analysis In Copyright Law: Eldred V. Ashcroft In One Act, Dan T. Coenen, Paul J. Heald

Scholarly Works

The authors examine Eldred v. Ashcroft in a play setting where one of the characters plays a constitutional law professor and the other character plays an intellectual property professor.


The Radical Possibility Of Limited Community-Based Interpretation Of The Constitution, Mark D. Rosen Mar 2002

The Radical Possibility Of Limited Community-Based Interpretation Of The Constitution, Mark D. Rosen

All Faculty Scholarship

This Article explores a radical method under the U.S. Constitution for devolving extraordinary political power to select communities. The United States Constitution places limitations on the exercise of public power by sub-federal polities. When insular groups seek to exercise public power to govern themselves, however, there may be special constitutional limitations that are operative - doctrines that afford their local governments more options in the exercise of power than ordinary state and local governments enjoy. The Article shows that Congress may grant the communities the authority to construe designated provisions of the United States Constitution insofar as the provisions apply ...


Extraterritoriality And Political Heterogeneity In American Federalism, Mark D. Rosen Mar 2002

Extraterritoriality And Political Heterogeneity In American Federalism, Mark D. Rosen

All Faculty Scholarship

It is commonly understood that as a matter of federal law, states' substantive policies may diverge in respect of those matters that are not violative of the United States Constitution. As a practical matter, however, what degree of political heterogeneity among states is possible vis-a-vis substantive policies that are not unconstitutional? The answer to the question turns in large part on whether states, if they so choose, can regulate their citizens even when they are out-of-state. If they cannot, citizens can bypass their home state’s laws by simply traveling to a more legally permissive state to do there what ...


Entrance, Voice And Exit: The Constitutional Bounds Of The Right Of Association, Evelyn Brody Mar 2002

Entrance, Voice And Exit: The Constitutional Bounds Of The Right Of Association, Evelyn Brody

All Faculty Scholarship

Despite the central role of organized groups as intermediary bodies in American society, the constitutional right of association is surprisingly recent and limited. As the Supreme Court struggles to define the bounds of 'the' freedom of association, it is time to take a critical look at a difficult set of questions. First, many private organizations engage in various types of selection criteria, but what subjects the Jaycees to State anti-discrimination laws but insulates the Boy Scouts of America? Second, the typical American nonprofit organization is a corporation that lacks both shareholders and members, so are there any 'associates' whose rights ...


Spheres Of Autonomy: Reforming The Content Neutrality Doctrine In First Amendment Jurisprudence, Steven J. Heyman Feb 2002

Spheres Of Autonomy: Reforming The Content Neutrality Doctrine In First Amendment Jurisprudence, Steven J. Heyman

All Faculty Scholarship

In recent decades, the doctrine of content neutrality has become the cornerstone of First Amendment jurisprudence. In the leading case of Police Department v. Mosley (1972), the Supreme Court declared that speech may "never" be regulated because of its content, for that would be "the essence of . . . censorship." If this view were taken literally, however, it would disable government from regulating speech even when necessary to prevent serious injury to individuals or society. In response to this concern, the Court has carved out several exceptions to the neutrality doctrine. Yet the Justices have never succeeded in explaining the rationale for ...


A Quick Look At Constitutional Reforms In Latin-America, Ricardo Gil Lavedra Jan 2002

A Quick Look At Constitutional Reforms In Latin-America, Ricardo Gil Lavedra

SELA (Seminario en Latinoamérica de Teoría Constitucional y Política) Papers

After suffering authoritarian regimes and blood-shedding military dictatorships – in many of which human rights were seriously violated- Latin American countries have regained elected civil governments in the last two decades.

This democratic recovery took place in a context of misery, social distress, high infant mortality, low educational levels, closed and predominantly agricultural economies, low industrial development and important external debt.

There were great expectations of reaching economic development with social equality through the exercise of popular sovereignty.

As from the 90s, countries in the region have faced important economic changes. Free market, open economies, privatizations, structural reforms in the state ...


On Revolution And Wetland Regulations, Michael J. Gerhardt Jan 2002

On Revolution And Wetland Regulations, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Washington Supreme Court Upholds State Anti-Spamming Law, Nathan B. Oman Jan 2002

Washington Supreme Court Upholds State Anti-Spamming Law, Nathan B. Oman

Faculty Publications

No abstract provided.


Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin R. Scordato, Paula A. Monopoli Jan 2002

Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin R. Scordato, Paula A. Monopoli

Faculty Scholarship

No abstract provided.


Straw Polls, Daniel B. Rodriguez Jan 2002

Straw Polls, Daniel B. Rodriguez

University of San Diego Public Law and Legal Theory Research Paper Series

A key measure of the democratic quality of a political community is how its members vote. The design and implementation of voting arrangements can illuminate the nature, purposes, and even potential of a community of citizens. Voting is, at the very least, used to sort out and implement preferences. Voting processes help in sorting out winners from losers and thereby provide a presumptively fair method for the implementation of public policy. At the same time, voting in a democratic policy is a coercive act. Voters are not merely expressing preferences; they are acting in order to transform their preferences into ...


Quasi-Affirmative Rights In Constitutional Criminal Procedure, David A. Sklansky Jan 2002

Quasi-Affirmative Rights In Constitutional Criminal Procedure, David A. Sklansky

Faculty Scholarship

No abstract provided.


Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin Roger Scordato Jan 2002

Free Speech Rationales After September 11th: The First Amendment In Post-World Trade Center America, Marin Roger Scordato

Scholarly Articles and Other Contributions

The tragic events of September 11th generated numerous proposals for greater security measures and increased police powers that might, if implemented, constrict the customary scope of free speech in the United States. Legitimate concerns for internal security have placed increased pressures on traditional constitutional protections for expressive activity. It is against this backdrop that this article presents a careful examination of the basic rationales for adopting constitutional level protections for free speech. The article analyzes the nature of, and many of the conflicts among, the traditional rationales for a constitutional right of free expression. It also suggests that much of ...


The Limits Of Secularism: Public Religious Expression In Moments Of National Crisis And Tragedy, William P. Marshall Jan 2002

The Limits Of Secularism: Public Religious Expression In Moments Of National Crisis And Tragedy, William P. Marshall

Faculty Publications

No abstract provided.


The Rhetoric Of Judicial Critique: From Judicial Restraint To The Virtual Bill Of Rights, Michael J. Gerhardt Jan 2002

The Rhetoric Of Judicial Critique: From Judicial Restraint To The Virtual Bill Of Rights, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Crisis And Constitutionalism, Michael J. Gerhardt Jan 2002

Crisis And Constitutionalism, Michael J. Gerhardt

Faculty Publications

No abstract provided.


Constitutional Consequentialism: Bargain Democracy Versus Median Democracy, Robert Cooter Jan 2002

Constitutional Consequentialism: Bargain Democracy Versus Median Democracy, Robert Cooter

Faculty Scholarship

No abstract provided.


The Constitutional Law Of Intellectual Property After Eldred V. Ashcroft, Pamela Samuelson Jan 2002

The Constitutional Law Of Intellectual Property After Eldred V. Ashcroft, Pamela Samuelson

Faculty Scholarship

No abstract provided.


Treaty Interpretation And The False Sirens Of Delegation, John C. Yoo Jan 2002

Treaty Interpretation And The False Sirens Of Delegation, John C. Yoo

Faculty Scholarship

No abstract provided.


The Legality And Constitutionality Of The President's Authority To Initiate An Invasion Of Iraq, Mark R. Shulman Jan 2002

The Legality And Constitutionality Of The President's Authority To Initiate An Invasion Of Iraq, Mark R. Shulman

Pace Law Faculty Publications

No abstract provided.