Law Commons^™

Winning Wirzburger And Defeating The Blaine Amendments: Arguing Present Efficacy Instead Of Past Intent, Brendan Michael Groves

ExpressO

The case of Wirzburger v. Galvin, currently on a writ of certiorari to the Supreme Court, may set the tone for all religious discrimination cases in the future. Massachusetts’ constitutional amendments that proscribe any citizen initiatives from either dealing with religion in general or attempting to repeal the states Blaine Amendment are at issue in the case. Petitioner’s counsel, the Becket Fund, rightly views this case as paramount in the long-march to victory over the anti-Catholic Blaine Amendments still codified in 37 state constitutions. However, they have lost almost every stage of the case.

This article argues that Wirzburger and …

Help Wanted: The Constitutional Case Against Gerrymandering To Protect Congressional Incumbents, Walter M. Frank

ExpressO

This article argues that the Supreme Court has been incorrect in treating incumbent protection gerrymanders as a traditional and acceptable redistricting principle. Part I of the article sets out 3 separate lines of attack on excessive incumbent protection gerrymanders. Part II makes the case for judicial regulation of such gerrymanders and proposes a standard that would create a presumption of unconstitutionality that could be rebutted. A process oriented remedy is proposed and potential obstacles to a suit are also addressed.

Quantifying Reasonable Doubt: A Proposed Solution To An Equal Protection Problem, Harry D. Saunders

ExpressO

In this article we present the case that the Reasonable Doubt standard is in urgent need of repair. Our research reveals that a previously-recognized phenomenon arising from vagueness of the standard is more consequential than thus far realized and creates a serious equal protection problem. We show that the only legally feasible solution to this problem is to quantify the definition of the standard. While others have examined quantified standards, we make a direct case for it and overcome previous objections to it by offering a way to make it practical and workable.

The solution we envision will require new …

Recent Developments In The Law Of The "Taking Issue", John C. Keene

ExpressO

No abstract provided.

Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins

ExpressO

This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".

Resurrection From Babel: The Cultural, Political, And Legal Status Of Christian Communities In Lebanon And Syria And Their Prospects For The Future, Alexandra R. Harrington

ExpressO

In the well-known Biblical story, the faithful, attempting to create a place of unity for themselves, set about building the Tower of Babel, only to see the Tower implode due to linguistic differences and power assertions. Thousands of years later, the world is still plagued by sectarian strife and warfare. Indeed, the situation has only become more involved since Babel, as there are now inter-communal and intra-communal conflicts for supremacy and superiority – a notable difference in these conflicts is that the ultimate tool of getting to Heaven is no longer a tower, it is now a state. Within the …

A Philosophical Investigation Into Methods Of Constitutional Interpretation In The United States And The United Kingdom, Louis E. Wolcher

ExpressO

Most constitutional theorists in America and Britain are primarily interested in the contents of their respective constitutions. They pay less attention (and in Britain far less attention) to the methods that judges employ to derive those contents, and almost no attention to the philosophical aspects of judges’ interpretive methods. This article attempts to redress this imbalance by giving a distinctly philosophical description of the principal methods of constitutional interpretation that judges are inclined to follow in these two countries, and by developing the important distinction between the interpretation and the reception of a constitutional text. The act of interpretation is …

Seeing Government Purpose Through The Objective Observer's Eyes: The Evolution-Intelligent Design Debates, Kristi L. Bowman

ExpressO

In October, 2004, the Dover, Pennsylvania School District became the first in the nation to adopt a policy requiring students studying evolution to be told about the concept of intelligent design. Soon thereafter, parents filed a lawsuit challenging the policy as violating the Establishment Clause. But, Establishment Clause doctrine is one of the most splintered, incoherent areas of the Court’s jurisprudence—and even more so after the Court’s June 2005 McCreary County v. Kentucky decision. Read strictly, McCreary County imports the effects-endorsement “objective observer” into the government purpose inquiry. This subtle shift has significant ramifications: McCreary County changes the nature of …

Making Free Speech Affordable: A Discussion Of Legislation To Provide Public Funding To Candidates For The U.S. Congress, Jared S. Cram

ExpressO

This article discusses a recent attempt by the U.S. Congress to provide for public financing of campaigns for the House of Representatives. Although a good start, this legislation would not go far enough to ensure that every voice has an opportunity to be heard in federal elections. My article discusses the strengths and weaknesses of this legislation and also provides suggested amendments to make this bill more effective should it become law.

Making Free Speech Affordable provides an in-depth comparison of this proposed legislation with current law at the state level providing for public financing of campaigns. This discussion includes …

Does The Icj's Decision In Avena Really Mean Anything To Mexicans On Death Row?, Kenneth Williams

ExpressO

This article assesses the legality of President Bush's order to state courts that they review the convictions and sentences of certain Mexican nationals on death row in response to the ICJ's decision that the rights of these inmates had been violated. The article also discusses the review process and makes a proposal to ensure that the ICJ's mandate is carried out. Finally, there is a discussion as to the importance of these cases to both the U.S. and Mexico.

Law And Economic Analysis On The Relationship Of Transparency And Voluntary Redistribution Of Wealth: Pursuing Both Efficiency And Equity At Once, Woo-Jong Jon

ExpressO

Charitable works can be analyzed as public goods or externalities. Eradication of extreme poverty and hunger, basic science research, and support for art and religion are public goods. These have non-excludability and non-rivalry, which are the defining characteristics of public goods, making philanthropist’s honor spread over more beneficiaries. And to achieve universal primary education is an externality because educations for the unlearned peolpe benefits both themselves and society at large. And in this knowledge and information era education is more and more important, thus society has to support the students who desire to escape from poverty helping them to receive …

Prosecuting Counterfeit License Plates: A Law Clerk's Constitutional Argument, Miguel R. Acosta

ExpressO

The article discusses the status and probable future of the counterfeit license plate statute in Florida, Florida Statute Section 320.26(1)(a). It prohibits the possession of counterfeit license plates. However, it contains no explicit mens rea requirement. As a result, this law has been challenged repeatedly of late because it is punishable up to five years in prison and because it could potentially be used to punish innocent conduct.

The Transnational Judicial Discourse And Felon Disenfranchisement: Re-Examining The Textual Premise Of Richardson V. Ramirez, Jason G. Morgan-Foster

ExpressO

This article is simultaneously an international comparative law piece about prisoner disenfranchisement in various countries, a transnational work of legal theory providing a framework for the use of foreign law in domestic constitutional courts, and a domestic analysis of the constitutional underpinnings of felon disenfranchisement.

The article begins with a comprehensive comparative analysis of the recent prisoner disenfranchisement decisions in Canada, South Africa, and Europe. It notes that the over-arching theme of these decisions is to view the acceptability of prisoner disenfranchisement along a continuum, where it becomes more acceptable the more serious the offense committed.

The article then examines …

Single Subject Rules And Public Choice Theory, Michael Gilbert

ExpressO

Despite generating thousands of cases on important public issues, the single subject rule remains a source of confusion and inconsistency. The root of the problem lies in the inability to define the term “subject” using legal doctrine. This paper reexamines the single subject rule through the lens of public choice theory and finds that its purposes are wrongheaded. Logrolling is not necessarily harmful, and improving political transparency requires legislative compromises to be packaged together rather than spread across multiple acts. Riding is not a form of logrolling but an analytically distinct and more threatening practice. This analysis yields a precise, …

Through The Looking Glass: Judicial Deference To Academic Decision Makers, The Conflict In Higher Education Between Fundamental Program Requirements And Reasonable Accommodations Under Section 504 Of The Rehabilitation Act And The Americans With Disabilities Act., Douglas Rush

ExpressO

No abstract provided.

Towards A Basal Tenth Amendment: A Riposte To National Bank Preemption Of State Consumer Protection Laws, Keith R. Fisher

ExpressO

Recent regulations promulgated by the Office of the Comptroller of the Currency assert a sweeping authority to preempt a broad array of state laws, including consumer protection laws, applicable not only to national banks but to their state-chartered operating subsidiaries. These regulations threaten to disrupt state efforts to combat predatory lending and other abusive practices and to interfere with a state’s sovereign authority over corporations chartered under its laws. Yet federal courts faced with challenges to these initiatives have failed to devote any substantial analysis to claims based on the Tenth Amendment. The problem with such claims is the absence …

The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt

ExpressO

This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of the Court’s concern with …

How It Works: Sobriety Sentencing, The Constitution And Alcoholics Anonymous. A Perspective From Aa's Founding Community, Max E. Dehn

ExpressO

This paper analyzes the public health as well as constitutional issues that arise when persons are required by courts to participate in 12-step recovery programs.

Broken Borders: Decanas V. Bica, And The Standards That Govern The Validity Of State Measures Designed To Deter Undocumented Immigration, Joshua J. Herndon

ExpressO

No abstract provided.

The Rules Of The Game: "Play In The Joints" Between The Religion Clauses, Sharon Keller

ExpressO

This article uses the case of Locke v. Davey as an exemplar of the new Establishment clause jurisprudence which has opened the door for greater governmental support of sectarian schools and enterprises. What I believe has not been truly appreciated is that the rhetorical approach that fostered the change, if followed consistently, should increase the government’s burden in justifying pressures or sacrifices of personal rights such as Joshua Davey faced in the exemplar case.

Adjusting The Rear-View Mirror: Rethinking The Use Of History In Supreme Court Jurisprudence, Mitchell Gordon

ExpressO

No abstract provided.

The Constitutional Right Not To Cooperate? Local Sovereignty And The Federal Immigration Power, Huyen Pham

ExpressO

May the federal government require local governments to cooperate with the enforcement of immigration law or other federal scheme? Or may local governments constitutionally refuse to provide that cooperation?

I use immigration law enforcement as a case study to argue that the current legal framework, which allows the federal government to mandate local cooperation, ignores the significant federalism harms that federal cooperation laws impose. And these federalism harms are not simply limited to the immigration field. In other areas where federal and local governments disagree (e.g., medical marijuana, stem cell research, and physician-assisted suicide), there is similar potential for conflict …

Separation Of Powers And The Criminal Law, Rachel E. Barkow

ExpressO

Scholars have written volumes about the separation of powers, but they have focused on the administrative state and have wholly ignored the criminal state. Judges, too, have failed to distinguish criminal from administrative matters. So, the conventional wisdom has been that whatever theory works for the administrative state should work for anything else, including crime. And because most scholars and judges have supported a flexible or functional approach to separation of powers in the regulatory sphere, they have failed to see a problem with the functional approach when it comes to criminal matters. Indeed, the Supreme Court has been even …

The Recognition Of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, And Strategic Institutional Choice, Nancy J. Knauer

ExpressO

The emerging field of comparative institutional analysis (CIA) has much to offer public policy analysts. However, the failure of CIA to address the dynamic process through which social goals are articulated limits the scope of its application to the largely prescriptive pronouncements of legal scholars. By examining the movement for equal recognition of same-sex relationships, this Essay builds on the basic observations of CIA and introduces a new dimension, namely the dynamic process through which social goals are articulated and social change is pursued. The acknowledgment that the production of social goals involves institutional behavior, as well as multiple sites …

The Aesthetics Of Lawrence V. Texas' Moral Vision, Courtney Megan Cahill

ExpressO

This Article clarifies a doctrinal issue that has remained open to debate by both legal scholars and lower courts since the Supreme Court’s 2003 decision in Lawrence v. Texas—namely, whether the Court repudiated morality as a legitimate state interest for lawmaking—by approaching that opinion as a poetic conflict or dialectic between two aesthetic modes, the line and unbounded space or transcendence. Unlike conventional legal analysis, which focuses on what the text of an opinion explicitly says—what it holds and how it gets there—an interpretive strategy that approaches Lawrence in poetic terms and that pays close attention to the stylistic interplay …

The Constitutionally Inspired Approaches To Police Accountability For Violence Against Women In The U.S. And South Africa: Conservation Versus Transformation, Christopher J. Roederer

ExpressO

In the summer of 2005, the United States Supreme Court in Castle Rock v. Gonzales and the South African Constitutional Court in N.K. v. Minister of Safety & Security overturned decisions from their appellate courts. N.K. drew on the Constitutional Court decision in Carmichele v. Minister of Safety & Security. All three were torts cases involving the duties of the police, their accountability to the public, and rights of women to be free from violence, and each depended on the respective court’s interpretation of its constitution for resolution. This article focuses on the comparison, or rather, the sharp contrast between, …

Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor

ExpressO

No abstract provided.

The Wto Constitution: Tertiary Rules For Intertwined Elephants, Joel P. Trachtman

ExpressO

Constitutions have many dimensions. These dimensions include at least the following:

• an economic constitution in the sense of a set of rules for exchange of value and authority,

• an interfunctional constitution that allows for the integration of various social values,

• a political constitution that reflects the cultural and democratic integrity of a group of people,

• a legal and judicial constitution that provides rules for the making of other rules, and for determining supremacy and the scope of judicial application of rules,

• a human rights constitution that limits the sphere of governmental authority, and

• a …

Constitutional Adjudication, Civil Rights, And Social Change, Suzanne B. Goldberg

Rutgers Law School (Newark) Faculty Papers

Judicial opinions typically rely on “facts” about a social group to justify or reject limitations on group members’ rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact-based approach to decision-making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial power to retain traditional justifications for restricting group members’ rights in some settings but not …

International Responsibility For Human Rights Violations By American Indian Tribes, Klint A. Cowan

ExpressO

The American Indian tribes have a unique status in the law of the United States. They are characterized as ‘sovereigns’ that predate the formation of the republic and possess inherent powers and immunities. Their powers permit them to create and enforce laws and generally to operate as autonomous governmental entities with executive, legislative, and judicial branches. They enjoy immunity from suit and exemption from federal and state constitutional provisions which protect individual rights. These powers and immunities provide a connection between tribal governments and US international human rights obligations. This essay explores this connection. It examines whether the tribes may …