Law Commons^™

Judicial Modesty And The Jury, Suja A. Thomas

University of Colorado Law Review

No abstract provided.

What Does Religion Have To Do With Freedom Of Conscience?, Steven D. Smith

University of Colorado Law Review

Although the framers of the First Amendment chose to protect "the free exercise of religion" and deleted language about 'freedom of conscience, " a widely-held modern assumption maintains that constitutional protection should extend to conscience generally, not just to religious exercise. But is this extension defensible? This article considers three classic rationales for religious freedom-the "separate spheres" rationale, the 'futility" rationale, and the "higher duties" rationale-and asks whether they justify protection of non-religious conscience. The article concludes that all of the classic rationales are vulnerable to serious objections. However, a somewhat different rationale, which might be called the "personhood" rationale, …

Child Custody, Religious Practices, And Conscience, Kent Greenwalt

University of Colorado Law Review

This article asks to what extent considerations relating to religion should figure in custody disputes. One inquiry is whether the kind of religious life that a parent plans for his or her child should figure in the decision whether to grant custody to that parent. The article focuses on a religious life that involves very substantial deprivation no after-school activities, no television, no pets, no reading except schoolwork and the Bible-from an ordinary secular perspective. A second inquiry is whether one parent of a divorced couple should be able to prevent the other parent from exposing a child to various …

How Traditional And Minority Religions Fare In The Courts: Empirical Evidence From Religious Liberty Cases, Gregory C. Sisk

University of Colorado Law Review

There is an enduring legal myth that members of minority religious groups face a decidedly uphill battle in securing accommodation for or even tolerance of unconventional religious practices, expression, or values from the courts. According to conventional wisdom, traditional Christian believers may anticipate a more hospitable welcome from the judiciary when asserting claims of conscience or religious liberty. However based upon an empirical study of religious liberty decisions in the federal courts, the proposition that minority religions are less successful with their claims was found to be without empirical support, at least in the modern era and in the lower …

Dimensions Of Equality In Regulating Assisted Reproductive Technologies, Mary Crossley

Articles

Although concerns about individual liberty and the nature and extent of reproductive freedom have tended to dominate discussions regarding the proliferation of and access to reproductive technologies, questions about the implications of assisted reproductive technologies (ARTs) for equality have also arisen. Despite the high number of invocations of equality in the literature regarding ARTs, to date little effort has been made to comprehensively examine the implications of ARTs for equality. This short Article seeks to highlight the variety of equality issues that ARTs present and to develop a framework for classifying different types of equality issues. Specifically, I suggest that …

Why You Should Read My Book Anyhow: A Reply To Trevor Morrison, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Authors rarely have the opportunity to respond to their reviewers in the same issue in which the review is published, so I am grateful to the Cornell Law Review for inviting me to do so and to Trevor Morrison for graciously agreeing. I am also appreciative of the respectful tone that Professor Morrison employs in his comments on a book with which he so obviously disagrees. Coming from a critic, the positive qualities he attributes to Restoring the Lost Constitution: The Presumption of Liberty are especially significant. Yet he does disagree with me, which means that I disagree with him, …

Controlling Executive Power In The War On Terrorism, Mark V. Tushnet

Georgetown Law Faculty Publications and Other Works

How does - or should - the U.S. Constitution regulate the exercise of power in response to threats to national security, to ensure that power is used wisely? s Broadly speaking, two mechanisms of control are available: a separation-of-powers mechanism and a judicial-review mechanism. Both mechanisms aim to ensure that the national government exercises its power responsibly - with sufficient vigor to meet the nation's challenges, but without intruding on protected liberties. Under the separation-of-powers mechanism, nearly all of the work of regulating power is done by the principle that the President can do only what Congress authorizes. Its primary …

Foreword: What's So Wicked About Lochner?, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

In this brief Foreword to a forthcoming symposium on Lochner v. New York, Professor Randy Barnett asks the question, What's So Wicked About Lochner? Modern Progressives cannot complain about its protection of so-called substantive due process, since they favor just that. Nor can they claim that Lochner violates the original meaning of the Fourteenth Amendment, since these legal analysts by and large reject originalism altogether. This leaves only today's judicial conservatives to adhere to a purified Roosevelt New Deal jurisprudence of disdain for Lochner.

The author answers that Lochner is objectionable precisely because its reliance on the Due …

Federal Land Retention And The Constitution's Property Clause: The Original Understanding, Robert G. Natelson

University of Colorado Law Review

No abstract provided.

Who Needs Freedom Of Religion?, James W. Nickel

University of Colorado Law Review

This article proposes that we view freedom of religion as a specific application area of more general basic liberties such as freedoms of thought, expression, association, assembly, movement, privacy, political participation, and economic activity. Separate enumeration of freedom of religion in national and international bills of rights may be useful, but it is not indispensable. In this respect freedom of religion is more like scientific freedom or artistic freedom than like freedom of expression. Recognizing that separate enumeration of freedom of religion is dispensable has salutary consequences for how we conceive and justify freedom as it applies to religion. First, …

A Practical And Pragmatic Approach To Freedom Of Conscience, Martin H. Belsky

University of Colorado Law Review

Using a series of anecdotes and illustrations, the author posits that freedom of conscience, broadly defined, can only be protected, if at all, by assertive individual and group action. Such action must be not just against government interference but also against nongovernmental or private activities as well as intimidation. Professor Belsky urges individual balancing of the freedom of conscience and other legal, governmental and societal interests. This balancing is a form of "constitutionalism," and when necessary must be followed up by enforcement through personal action.

In Closing: Fighting Might With Rights, Kent Greenfield

Kent Greenfield

No abstract provided.

Constitutionally Excluded Confessions: Applying America's Lessons To A Democratic Iraq, Joseph Thai

Joseph T Thai

No abstract provided.

Immigration Law: The ‘Plenary Power’ Doctrine, In The Encyclopedia Of The Supreme Court (David Schultz Ed., Facts On File), Anil Kalhan

Anil Kalhan

No abstract provided.

The Crime Drop And Racial Profiling: Toward An Empirical Jurisprudence Of Search And Seizure, Lawrence Rosenthal

Lawrence Rosenthal

No abstract provided.

Rättsliga Ramar För Gränsöverskridande Samarbete. Förvaltningsmyndigheters Internationella Avtalsförhållanden. [Legal Frameworks For Cross-Border Co-Operation: International Agreements Between Administrative Authorities], Vilhelm Persson

Vilhelm Persson

When Swedish public bodies have reasons to contact and co-operate with foreign public bodies, this may give rise to legally complex situations. There are reasons to endeavour to seek solutions adapted to the needs of each individual case. This thesis investigates legal frameworks for such solutions. The investigation in particular deals with binding agreements concluded by Swedish public authorities and municipalities with corresponding types of foreign public bodies. By the conclusion of such agreements more than one legal system may be involved. This thesis deals with Swedish national law and public international law. A question of central concern for this …

Book Review Essay: Canada's Constitutional Cul De Sac, Richard Kay

Richard Kay

Book reivew of 'Constitutional Odyssey: Can Canadians Become a Sovereign People?', by Peter H. Russell (Toronto, University of Toronto Press, 2004).

In Incognito: The Principle Of Double Effect In American Constitutional Law, Edward Lyons

Edward C. Lyons

In Vacco v. Quill, 521 U.S. 793 (1997), the Supreme Court for the first time in American case law explicitly applied the principle of double effect to reject an equal protection claim to physician-assisted suicide. Double effect, traced historically to Thomas Aquinas, proposes that under certain circumstances it is permissible unintentionally to cause foreseen evil effects that would not be permissible to cause intentionally. The court rejected the constitutional claim on the basis of a distinction marked out by the principle, i.e., between directly intending the death of a terminally ill patient as opposed to merely foreseeing that death as …

Knowledge And Power In The Mechanical Firm: Planning For Profit In Austrian Perspective, Richard Adelstein

Richard Adelstein

A theory of central planning employing Austrian themes and applied to private firms and Taylorism.

American Legal Education, Robert Bloom

Robert M. Bloom

No abstract provided.

The Worst Way Of Selecting Judges—Except All The Others That Have Been Tried, Michael R. Dimino

Michael R Dimino

The Non-Political Branch (Reviewing Lee Epstein & Jeffrey A. Segal, Advice And Consent: The Politics Of Judicial Appointments (2005)), Michael R. Dimino

Michael R Dimino

The Unconstitutionality Of Class-Based Statutory Limitations On Presidential Nominations: Can A Man Head The Women's Bureau At The Department Of Labor?, Donald J. Kochan

Donald J. Kochan

Can a man be the Director of the Women’s Bureau at the Department of Labor? According to Congress, the answer is no. Congress has stated by statute that a woman must be the nominee to head the Women’s Bureau at the Department of Labor. The key questions are: (1) even if it makes sense on policy grounds, is it constitutional? and (2) if we accept such a statutory limitation power what are the potential precedential consequences for other appointment matters? This Article’s case study is particularly relevant today, examining just how far Congress can go to limit the discretion of …

Realism, Freedom, And The Integral Development Of The Human Person: A Catholic View Of Education, Michael Scaperlanda

Michael A. Scaperlanda

No abstract provided.

Illusions Of Liberty And Equality: An "Alien's" View Of Tiered Scrutiny, Ad Hoc Balancing, Governmental Power, And Judicial Imperialism, Michael Scaperlanda

Michael A. Scaperlanda

No abstract provided.

Human Trafficking In The Heartland: Greed, Visa Fraud, And The Saga Of 53 Indian Nationals "Enslaved" By A Tulsa Company, Michael Scaperlanda

Michael A. Scaperlanda

No abstract provided.

Subsidiarity, Federalism, And Federal Prosecution Of Street Crime, John F. Stinneford

John F. Stinneford

No abstract provided.

How The Confrontation Clause Defeated The Rape Shield Statute: Acquaintance Rape, The Consent Defense And The Nj Supreme Court's Ruling In State V. Garron, James B. Johnston

James B Johnston

Rape shield statutes are designed to limit a judge's discretion in allowing information about a rape victim's sexual past into evidence at trial. This is done to prevent dual victimization of the rape victim. First during the rape and then at trial. Despite rape shield protections the NJ Supreme Court ruled in State v. Garron that a victim's prior flirtations with the attacker, some of which occurred 6 years before the rape was admissible. The court overturned the attacker's guilty verdict and he went free. Advocates for rape victims rights were outraged. This article provides an analysis and critique of …

Protecting The Right To Effective Assistance Of Capital Postconviction Counsel: The Scope Of The Constitutional Obligation To Monitor Counsel Performance, Celestine Richards Mcconville

Celestine Richards McConville

This article is an outgrowth of an idea developed by the author in a prior article, The Right to Effective Assistance of Capital Postconviction Counsel: Constitutional Implications of Statutory Grants of Capital Counsel, 2003 Wisconsin Law Review 31. The prior article argued that the government's decision to provide capital postconviction counsel triggers a due process-based obligation to make the right to counsel meaningful, which essentially means that the right to counsel must include the right to effective assistance of counsel. In the postconviction context, the effectiveness guarantee requires that the government must monitor counsel's performance to ensure, to the extent …

Vineet Narain V Union Of India: A Court Of Law And Not Justice: Is The Indian Supreme Court Bound By The Indian Constitution, Shubhankar Dam

Shubhankar Dam

The last twenty five years are an “impressive” chronicle of the Indian Supreme Court in action. Its novel functioning has changed the internal dynamics of Indian polity in a manner unknown to constitutional democracies. From an institution entrusted with the task of adjudicating disputes between parties, the Indian Supreme Court has transformed itself into an institution enjoined to promote the ideals of a socio-economic and political justice. Its prior role as an “adjudicator” has undergone a reappraisal. The judges therein are no more adjudicators but activists, energetically contributing to the accomplishment of India's constitutional vision. In this new creation, they …