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Articles 1 - 30 of 218
Full-Text Articles in Law
Extraterritorial Application And Customary Norm Assessment Of Non-Refoulement: The Legality Of Australia's 'Turn-Back' Policy, James Mansfield
Extraterritorial Application And Customary Norm Assessment Of Non-Refoulement: The Legality Of Australia's 'Turn-Back' Policy, James Mansfield
The University of Notre Dame Australia Law Review
This article considers whether the Commonwealth Government’s border protection policy of turning back asylum seeker boats breaches its international obligation not to refoule refugees, as imposed under the Refugee Convention art 33(1). In addressing this issue the article examines whether art 33(1) applies extraterritorially, and whether a similar obligation has become embedded in customary international law. The conclusions reached are applied to specific situations where Australia has returned refugees.
Is The Health Star Rating System A Thin Response To A Fat Problem? An Examination Of The Constitutionality Of A Mandatory Front Package Labeling System, Mariette Brennan
Is The Health Star Rating System A Thin Response To A Fat Problem? An Examination Of The Constitutionality Of A Mandatory Front Package Labeling System, Mariette Brennan
The University of Notre Dame Australia Law Review
The Commonwealth of Australia has begun the implementation of a new front package labelling system for packaged food products. Despite calls from various health groups advocating for a mandatory front package labelling system, the Commonwealth opted for a voluntary system that relies on the goodwill of individual companies for its implementation. In discussing Australia’s obesity epidemic that has given rise to a need for front package labelling, this paper examines the constitutionality of mandatory front package labelling requirements. It argues that as the Commonwealth Government has the requisite jurisdiction to make the system mandatory it should forego voluntary implementation in …
Should ‘Public Reason’ Developed Under Us Establishment Clause Jurisprudence Apply To Australia?, Anthony K. Thompson
Should ‘Public Reason’ Developed Under Us Establishment Clause Jurisprudence Apply To Australia?, Anthony K. Thompson
The University of Notre Dame Australia Law Review
John Rawls’ idea of public reason holds that comprehensive doctrines including religion should not be allowed a voice in the public square. Such ideas prevent society achieving that ‘overlapping consensus’ which is said to be a requirement for enduring peace and progress. However, the suggestion that some ideas should be excluded from public debate is anti-democratic. This article reviews Rawls’ idea of public reason’ against its US legal context and suggests it was a response to US Supreme Court decisions concerning their First Amendment. Though our framers copied most of that clause into the Australian Constitution, the High Court has …
The (Not So Dire) Future Of The Necessary And Proper Power After National Federation Of Independent Business V. Sebelius, Celestine Richards Mcconville
The (Not So Dire) Future Of The Necessary And Proper Power After National Federation Of Independent Business V. Sebelius, Celestine Richards Mcconville
William & Mary Bill of Rights Journal
No abstract provided.
Quasi-Affirmative Rights In Constitutional Criminal Procedure, David Sklansky
Quasi-Affirmative Rights In Constitutional Criminal Procedure, David Sklansky
David A Sklansky
No abstract provided.
Not All Black And White, Alan E. Garfield
The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt
The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt
Mark P Nevitt
Climate change is the world’s greatest environmental threat. And it is increasingly understood as a threat to domestic and international peace and security. In recognition of this threat, the President has taken the initiative to prepare for climate change’s impact – in some cases drawing sharp objections from Congress. While both the President and Congress have certain constitutional authorities to address the national security threat posed by climate change, the precise contours of their overlapping powers are unclear. As Commander in Chief, the President has the constitutional authority to repel sudden attacks and take care that the laws are faithfully …
Thinking Under The Box--Public Choice And Constitutional Law Perspectives On City-Level Environmental Policy, Harri Kalimo, Reid Lifset
Thinking Under The Box--Public Choice And Constitutional Law Perspectives On City-Level Environmental Policy, Harri Kalimo, Reid Lifset
William & Mary Environmental Law and Policy Review
No abstract provided.
Take Two Tablets And Do Not Call For Judicial Review Until Our Heads Clear: The Supreme Court Prepares To Demolish The 'Wall Of Separation' Between Church And State, Terence Lau, William Wines
Take Two Tablets And Do Not Call For Judicial Review Until Our Heads Clear: The Supreme Court Prepares To Demolish The 'Wall Of Separation' Between Church And State, Terence Lau, William Wines
Terence Lau
In this article, we examine the issues that bring First Amendment jurisprudence to the grant of certiorari in Pleasant Grove v. Summum, scheduled for oral argument in the Supreme Court of the United States in November. We examine the historical basis for America’s religious heritage, the historical judicial treatment of the religious clauses, and the erosion of the wall of separation between church and state. We examine the Ten Commandments, finding inherent discrimination present in modern-day attempts to advance a particular version of the Ten Commandments as secular. By drawing upon Rousseau’s civic religion, we suggest alternative routes for the …
The Impact Of “Standing” Is Anything But Boring, Alan E. Garfield
The Impact Of “Standing” Is Anything But Boring, Alan E. Garfield
Alan E Garfield
No abstract provided.
7 Things You Need To Know About: Constitutional Law, Corey A. Ciocchetti
7 Things You Need To Know About: Constitutional Law, Corey A. Ciocchetti
Corey A Ciocchetti
These slides cover the 7 most important things you need to know about Constitutional Law - especially as it relates to business. Topics covered include the Supremacy Clause & preemption, Commercial Speech & the First Amendment, the Commerce Clause, the Bill of Rights and Constitutional History.
Government Analysis Of Shed Dna Is A Search Under The Fourth Amendment, Tracey Maclin
Government Analysis Of Shed Dna Is A Search Under The Fourth Amendment, Tracey Maclin
Faculty Scholarship
This article addresses whether the Fourth Amendment is implicated when police surreptitiously collect and analyze a person’s involuntarily shed DNA.
Law enforcement officers will often obtain shed or abandoned DNA samples from persons who they suspect have committed crimes, but lack sufficient evidence to arrest or detain such persons. When utilizing abandoned or shed DNA for criminal investigative purposes, there are two state actions which arguably trigger Fourth Amendment protection. First, the collection of the biological material which contains a person’s DNA might be considered a search under the amendment. Courts, however, have uniformly rejected this argument. For example, when …
Opening The “Snake Pit”: Arming Teachers In The War Against School Violence And The Government-Created Risk Doctrine, Danielle Weatherby
Opening The “Snake Pit”: Arming Teachers In The War Against School Violence And The Government-Created Risk Doctrine, Danielle Weatherby
Danielle Weatherby
Book Review: The Once And Future King: The Rise Of Crown Government In America, Ronald D. Rotunda
Book Review: The Once And Future King: The Rise Of Crown Government In America, Ronald D. Rotunda
Ronald D. Rotunda
If you want to understand your own language, learn a foreign tongue. Similarly, if you want to understand the American system of government, learn what our intellectual kin—Great Britain and Canada—have done. As Professor F.H. Buckley notes, “He who knows only his own country knows little enough of that.” He is one of the few people who has thoroughly mastered the legal structure and history of all three countries.
The Conservatives’ 2015 Fiscal Charter: A Wanting Desire For Constitutional Change, Brian Christopher Jones, Paolo Sandro
The Conservatives’ 2015 Fiscal Charter: A Wanting Desire For Constitutional Change, Brian Christopher Jones, Paolo Sandro
Brian Christopher Jones
Eureka Cnty. V. Off. Of State Engr. Of State Of Nev., Div. Of Water Resources, 131 Nev. Adv. Op. 84 (Oct. 29, 2015), Chelsea Finnegan
Eureka Cnty. V. Off. Of State Engr. Of State Of Nev., Div. Of Water Resources, 131 Nev. Adv. Op. 84 (Oct. 29, 2015), Chelsea Finnegan
Nevada Supreme Court Summaries
For the State Engineer to grant water rights applications, there must be evidence to support the decision and the new rights must not substantially conflict with existing rights. On appeal from the District Court, the Court found no evidence to support the granted application, and held the use of Respondent’s rights would severely impact the water table. The Court reversed and remanded the case for proceedings consistent with the opinion.
In Defense Of Corporate Persons, Kent Greenfield
In Defense Of Corporate Persons, Kent Greenfield
Kent Greenfield
This essay is a critique of this attack on corporate personhood. It explains that the corporate separateness - corporate “personhood” - is an important legal principle as a matter of corporate law. What’s more, as a matter of constitutional law, corporate “personhood” deserves a more nuanced analysis than has been typically offered in arguing in favor of an amendment to overturn Citizens United. Indeed, the concept of corporate “personhood” can in fact be marshaled in arguments against corporations being able to assert constitutional rights. In the nascent category of cases brought by corporations asserting rights of religious freedom, for example, …
Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead
Unenumerated Rights And The Limits Of Analogy: A Critque Of The Right To Medical Self-Defense, O. Carter Snead
O. Carter Snead
Volokh’s project stands or falls with the claim that the entitlement he proposes is of constitutional dimension. If there is no fundamental right to medical self-defense, the individual must, for better or worse, yield to the regulation of this domain in the name of the values agreed to by the political branches of government. Indeed, the government routinely restricts the instrumentalities of self-help (including self-defense) in the name of avoiding what it takes to be more significant harms. This same rationale accounts for current governmental limitations on access to unapproved drugs and the current ban on organ sales. The FDA …
Sex Offender Residency Restrictions: Government Regulation Of Public Health, Safety, And Morality, John Kip Cornwell
Sex Offender Residency Restrictions: Government Regulation Of Public Health, Safety, And Morality, John Kip Cornwell
William & Mary Bill of Rights Journal
Sex offender residency restrictions have proliferated throughout the United States over the past decade. A number of commentators have likened these laws to medieval banishment, when political outcasts and undesirables are exiled to remote areas where they cannot threaten civilized society. This Article argues first that likening modern residency restrictions to “banishment” largely misconstrues this practice as it has been practiced historically. Instead, these statutory initiatives are better understood as an assertion of governments’ police power to protect public health, safety, and morality. Seen through this lens, this Article evaluates the laws’ constitutional sufficiency with attention to their allegedly punitive …
Incorporation, Total Incorporation, And Nothing But Incorporation?, Christopher R. Green
Incorporation, Total Incorporation, And Nothing But Incorporation?, Christopher R. Green
William & Mary Bill of Rights Journal
Kurt T. Lash’s The Fourteenth Amendment and the Privileges and Immunities of American Citizenship (2014) defends the view that the Fourteenth Amendment’s “privileges or immunities of citizens of the United States” cover only rights enumerated elsewhere in the Constitution. My own book, however, Equal Citizenship, Civil Rights, and the Constitution: The Original Sense of the Privileges or Immunities Clause (2015), reads the Clause to guarantee equality broadly among similarly situated citizens of the United States. Incorporation of an enumerated right into the Fourteenth Amendment requires, I say, national consensus such that an outlier state’s invasion of the right would produce …
Dangerous Dicta, David Gray
Dangerous Dicta, David Gray
David C. Gray
In United States v. Heller, the Court held that individuals have a Second Amendment right to keep and bear arms apart from their associations with state militias. Although that holding was and remains controversial, less attention has been paid to what the Heller Court had to say about the Fourth Amendment. Writing for the Court in Heller, Justice Scalia asserts that the phrase “right of the people” in the Fourth Amendment “unambiguously refers to individual rights, not ‘collective’ rights or rights that may only be exercised through participation in some corporate body.” By any definition, this is dicta. It is …
Is It Time To Stop Tinkering With The Machinery Of Death?, Alan E. Garfield
Is It Time To Stop Tinkering With The Machinery Of Death?, Alan E. Garfield
Alan E Garfield
No abstract provided.
A Corporation Has No Soul, And Doesn't Go To Church: Relating The Doctrine Or Piercing The Veil To Burwell V. Hobby Lobby, Carol Goforth
A Corporation Has No Soul, And Doesn't Go To Church: Relating The Doctrine Or Piercing The Veil To Burwell V. Hobby Lobby, Carol Goforth
South Carolina Law Review
No abstract provided.
Who’S The ‘We?’ Who’S ‘The People?’, Rodney A. Smolla
Who’S The ‘We?’ Who’S ‘The People?’, Rodney A. Smolla
Rod Smolla
No abstract provided.
Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis
Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis
Dara Purvis
As license plates emblazoned with the message “Choose Life” have proliferated in twenty-four states, so too have lawsuits challenging such specialty license plates. The holdings of such cases have run the gamut, resulting in a three-way circuit split among the Fourth, Fifth, and Sixth Circuits. Analysis of the controversy up to this point has not considered an illuminating analogy: advertising space owned and operated by the government. Examining the parallels between advertising space and specialty license plates informs doctrinal analysis of the dispute, demonstrating that state legislatures may not use the current practice of individually establishing specialty license plates through …
All American Citizens Fall Under ‘We The People,’ But Who Is Really Included?, Alan E. Garfield
All American Citizens Fall Under ‘We The People,’ But Who Is Really Included?, Alan E. Garfield
Alan E Garfield
No abstract provided.
Obergefell’S Prescription: Why The Fourteenth Amendment Trumps State Employees’ Free Exercise Claims, Douglas B. Mckechnie
Obergefell’S Prescription: Why The Fourteenth Amendment Trumps State Employees’ Free Exercise Claims, Douglas B. Mckechnie
ConLawNOW
Soon after the United States Supreme Court’s decision in Obergefell v. Hodges, some elected officials and civil servants objected to the requirement that same-sex couples be offered marriage licenses. In particular, they argued that a government employee whose job duties include issuing marriage licenses cannot be forced to do so if it would violate his or her religion’s dictates. This piece argues that position is unavailing as it ignores the jurisprudence construing the free exercise clause of the First Amendment as well as the mandate created by the Court’s interpretation of the Fourteenth Amendment in Obergefell.
A Constitutionalist Perspective, Elizabeth Dale
A Constitutionalist Perspective, Elizabeth Dale
Elizabeth Dale
Intended as a sustained critique of modern communitarian thought written from a constitutionalist perspective, Beau Breslin'sCommunitarian Constitution is a handy primer on modern communitarian thought and a provoking consideration of the impact of communitarian thinking on contemporary politics. The foundation for Breslin's fundamental argument--that constitutionalism provides a viable alternative to communitarianism, while liberalism cannot--is not laid as well as one might wish. There are other points where his logic ought to be more rigorously developed, most notably in his assessment of the role and power of the rule of law in a constitutionalist system. He rests his reliance on the …
The Conflict Of Laws In Armed Conflicts And Wars, John C. Dehn
The Conflict Of Laws In Armed Conflicts And Wars, John C. Dehn
John C. Dehn
After over thirteen years of continuous armed conflict, neither courts nor scholars are closer to a common understanding of whether, or how, international and U.S. law interact to regulate acts of belligerency by the United States. This Article articulates the first normative theory regarding the relationship of customary international law to U.S. domestic law that fully harmonizes Supreme Court precedent. It then applies this theory to customary international laws of war to better articulate the legal framework regulating the armed conflicts of the United States. It demonstrates that the relationship of customary international law to U.S. law differs in cases …
Stemming The Hobby Lobby Tidal Wave: Why Rfra Challenges To Obama's Executive Order Prohibiting Federal Contractors From Discriminating Against Lgbt Employees Will Not Succeed, Kayla Higgins
Kayla Higgins
On July 21, 2014 President Obama released Executive Order 13672, which expressly aimed to provide for a uniform policy for the Federal Government to prohibit discrimination and take further steps to promote economy and efficiency in Federal Government procurement by prohibiting discrimination based on sexual orientation and gender identity. Some commentators believe that the order “could be the next battleground” for the competing views of religious leaders and liberals when it comes to how to weigh religious liberty against other priorities. However, there are two main reasons why the most recent executive order should not crumble under the Hobby Lobby …