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Articles 1 - 28 of 28
Full-Text Articles in Law
Gay Rights Versus Religious Freedom, And The Influence Of Obergefell V. Hodges On Distinguishing The Dividing Line, Kathleen Rainey Mcstravick
Gay Rights Versus Religious Freedom, And The Influence Of Obergefell V. Hodges On Distinguishing The Dividing Line, Kathleen Rainey Mcstravick
St. Mary's Law Journal
Obergefell v. Hodges, a United States Supreme Court case, added more fuel to the fire, leaving many to wonder how to voice religious opposition to same-sex marriages, and what are the second order effects for religious opposition in light of the new rule. The Court held the Equal Protection Clause in the Fourteenth Amendment of the United States Constitution guarantees protection against discrimination based on sexual orientation. Obergefell, brings the conflict between freedom of religion and LGBT rights to a new level by questioning how far freedom of religion can be used to refuse anti-discrimination statutes regarding sexual …
Dismissing Deterrence, Ellen D. Katz
Dismissing Deterrence, Ellen D. Katz
Articles
The proposed Voting Rights Amendment Act of 20144 (VRAA)[...]’s new criteria defining when jurisdictions become subject to preclearance are acutely responsive to the concerns articulated in Shelby County[ v. Holder]. The result is a preclearance regime that, if enacted, would operate in fewer places and demand less from those it regulates. This new regime, however, would not only be more targeted and less powerful, but, curiously, more vulnerable to challenge. In fact, the regime would be more vulnerable precisely because it is so responsive to Shelby County. Some background will help us see why.
Discrimination And Business Regulation (The Supreme Court And Local Government Law: The 1999-2000 Term), Eileen Kaufman
Discrimination And Business Regulation (The Supreme Court And Local Government Law: The 1999-2000 Term), Eileen Kaufman
Eileen Kaufman
No abstract provided.
An Uncertain Future For Section 5 Of The Voting Rights Act: The Need For A Revised Bailout System, Christopher B. Seaman
An Uncertain Future For Section 5 Of The Voting Rights Act: The Need For A Revised Bailout System, Christopher B. Seaman
Scholarly Articles
In Northwest Austin Municipal Utility District No. 1 v. Holder ("NAMUDNO"), 129 S. Ct. 2504 (2009), the Supreme Court declined to decide one of last Term's most prominent issues: the constitutionality of the 2006 renewal of Section 5 of the Voting Rights Act. Instead, the Court adopted an unexpected statutory construction permitting the plaintiff to seek an exemption called "bailout" from continued coverage under this provision. But even though the Court avoided directly ruling on its constitutionality, NAMUDNO left little doubt that Section 5 remains on shaky constitutional ground. A revised bailout system is likely the best approach for placing …
Congressional Power To Extend Preclearance: A Response To Professor Karlan, Ellen D. Katz
Congressional Power To Extend Preclearance: A Response To Professor Karlan, Ellen D. Katz
Articles
Is the core provision of the Voting Rights Act unconstitutional? Many people now think that the Act's preclearance requirement is invalid, but Professor Karlan is not among them. In part, that is because she is not convinced the problems that originally motivated Congress to impose preclearance have been fully remedied. Professor Karlan points out the many ways section 5 of the Voting Rights Act (VRA) shapes behavior in the jurisdictions subject to the statute--not just by blocking discriminatory electoral changes, but also by influencing less transparent conduct by various political actors operating in these regions. Do not be so sure, …
Reinforcing Representation: Congressional Power To Enforce The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Reinforcing Representation: Congressional Power To Enforce The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Michigan Law Review
A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …
Formalism, Pragmatism, And The Conservative Critique Of The Eleventh Amendment, Michael E. Solimine
Formalism, Pragmatism, And The Conservative Critique Of The Eleventh Amendment, Michael E. Solimine
Michigan Law Review
For many years the Second Amendment to the constitution was construed by most authorities to grant a communal right to bear arms, through state militias and the like. Some years ago Sanford Levinson labeled this interpretation "embarrassing" to liberal scholars. That characterization was deserved, Levinson argued, since liberal academics had been eager to defend expansive interpretations of other rights-granting provisions of the Constitution. But they failed to do so when it came to language in the Second Amendment, which could be plausibly construed to grant an individual right to bear arms. The failure might be attributed, in part, to the …
Section Five Overbreadth: The Facial Approach To Adjudicating Challenges Under Section Five Of The Fourteenth Amendment, Catherine Carroll
Section Five Overbreadth: The Facial Approach To Adjudicating Challenges Under Section Five Of The Fourteenth Amendment, Catherine Carroll
Michigan Law Review
In February 1996, the New York State Department of Transportation fired Joseph Kilcullen from his position as a snowplow driver in the Department's Highway Maintenance training program. Alleging that the state discharged him because of his epilepsy and learning disability, Kilcullen sued his former employer under the Americans with Disabilities Act ("ADA"), which abrogated states' sovereign immunity and permitted private suits for damages against states in a federal court. Kilcullen asserted only that he was not treated the same as similarly situated non-disabled employees; his claim did not implicate the ADA's requirement that employers provide "reasonable accommodation" to disabled employees. …
Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Reinforcing Representation: Enforcing The Fourteenth And Fifteenth Amendments In The Rehnquist And Waite Courts, Ellen D. Katz
Articles
A large body of academic scholarship accuses the Rehnquist Court of "undoing the Second Reconstruction," just as the Waite Court has long been blamed for facilitating the end of the First. This critique captures much of what is meant by those generally charging the Rehnquist Court with "conservative judicial activism." It posits that the present Court wants to dismantle decades' worth of federal antidiscrimination measures that are aimed at the "reconstruction" of public and private relationships at the local level. It sees the Waite Court as having similarly nullified the civil-rights initiatives enacted by Congress following the Civil War to …
Dissing Congress, Ruth Colker, James J. Brudney
Dissing Congress, Ruth Colker, James J. Brudney
Michigan Law Review
The Supreme Court under Chief Justice Rehnquist's recent leadership has invalidated numerous federal laws, arguably departing from settled precedent to do so. The Rehnquist Court has held that Congress exceeded its constitutional authority in five instances during the 2000-01 Term, on four occasions during the 1999-2000 Term and in a total of twenty-nine cases since the 1994-95 Term. Commentators typically explain these decisions in federalism terms, focusing on the Court's use of its power to protect the States from an overreaching Congress. That explanation is incomplete and, in important respects, unpersuasive. The Rehnquist Court has not been as solicitous of …
How To Apply The Religious Freedom Restoration Act To Federal Law Without Violating The Constitution, Gregory P. Magarian
How To Apply The Religious Freedom Restoration Act To Federal Law Without Violating The Constitution, Gregory P. Magarian
Michigan Law Review
Learned commentators have called the Religious Freedom Restoration Act of 1993 ("RFRA" or "the Act") "perhaps the most unconstitutional statute in the history of the nation" and "the most egregious violation of the separation of powers doctrine in American constitutional history." In the 1997 case of City of Boerne v. Flores, the Supreme Court struck down the Act in its applications to state and local governments, declaring that "RFRA contradicts vital principles necessary to maintain separation of powers and the federal balance." The Act's applications to federal law, however, survived Boerne, which means that plaintiffs with religious freedom claims against …
Miranda, The Constitution, And Congress, David A. Strauss
Miranda, The Constitution, And Congress, David A. Strauss
Michigan Law Review
Are Miranda warnings required by the Constitution, or not? If they are, why has the Supreme Court repeatedly said that the rights created by Miranda are "not themselves rights protected by the Constitution"? If not, why can't an Act of Congress, such as 18 U.S.C. 3501, declare them to be unnecessary? These were the central questions posed by United States v. Dickerson. It is not clear that the majority opinion ever really answered them. The majority said that "Miranda is constitutionally based," that Miranda has "constitutional underpinnings," that Miranda is "a constitutional decision," and that Miranda "announced a constitutional rule." …
The Paths Not Taken: The Supreme Court's Failures In Dickerson, Paul G. Cassell
The Paths Not Taken: The Supreme Court's Failures In Dickerson, Paul G. Cassell
Michigan Law Review
Where's the rest of the opinion? That was my immediate reaction to reading the Supreme Court's terse decision in Dickerson, delivered to me via email from the clerk's office a few minutes after its release. Surely, I thought, some glitch in the transmission had eliminated the pages of discussion on the critical issues in the case. Yet, as it became clear that I had received all of the Court's opinion, my incredulity grew.
'Appropriate' Means-Ends Constraints On Section 5 Powers, Evan H. Caminker
'Appropriate' Means-Ends Constraints On Section 5 Powers, Evan H. Caminker
Articles
With the narrowing of Congress' Article I power to regulate interstate commerce and to authorize private suits against states, Section Five of the Fourteenth Amendment provides Congress with an increasingly important alternative source of power to regulate and police state conduct. However, in City of Boerne v. Flores and subsequent cases, the Supreme Court has tightened the doctrinal test for prophylactic legislation based on Section Five. The Court has clarified Section Five's legitimate ends by holding that Congress may enforce Fourteenth Amendment rights only as they are defined by the federal judiciary, and the Court has constrained Section Five's permissible …
Comparing Alternative Approaches About Congress's Role In Constitutional Law, Charles Tiefer
Comparing Alternative Approaches About Congress's Role In Constitutional Law, Charles Tiefer
University of Richmond Law Review
Mark Tushnet's Taking the ConstitutionAway from the Courts presents many aspects of the theme expressed in its title. I find most interesting the aspect concerning Congress's role in constitutional law. I like this aspect because I spent almost two decades working on constitutional law in Congress, principally as the House of Representatives' Solicitor and Deputy General Counsel representing the House of Representatives in countless constitutional controversies, and I have written a good deal about it. Tushnet provides us with an alternative perspective from which we can view Congress both during that time and since. Tushnet's book is kind enough to …
Commerce Clause, Enforcement Clause, Or Neither? The Constitutionality Of The Violence Against Women Act In Brzonkala V. Morrison, Christine M. Devey
Commerce Clause, Enforcement Clause, Or Neither? The Constitutionality Of The Violence Against Women Act In Brzonkala V. Morrison, Christine M. Devey
University of Richmond Law Review
On September 21, 1994, two men raped Christy Brzonkala in her dormitory room at Virginia Polytechnic Institute and State Univer- sity("VirginiaTech"). Unfortunately,this kind of event is not a rare occurrence in the United States. "According to the U.S. Department of Justice Bureau of Justice Statistics ("BJS"), women are the victims of more than 4.5 million violent crimes each year. This alarming figure includes approximately 500,000 rapes or other sexual assaults." In light of these statistics, and "after four years of hearings, Congress enacted [the Violence Against Women Act of 1994 ("VAWA" or "the Act")], a comprehensive federal statute designed to …
A Holy Mess: School Prayer, The Religious Freedom Restoration Act Of Texas, And The First Amendment., David S. Stolle
A Holy Mess: School Prayer, The Religious Freedom Restoration Act Of Texas, And The First Amendment., David S. Stolle
St. Mary's Law Journal
In Employment Division, Department of Human Resources of Oregon v. Smith, the U.S. Supreme Court held the traditional compelling state interest standard for Free Exercise Clause jurisprudence should be replaced by a new test requiring a statute or government action to be facially neutral and generally applicable. In response to Smith, Congress, relying on its Enforcement Clause powers under the Fourteenth Amendment, attempted to resurrect the compelling state interest standard by passing the Religious Freedom of Restoration Act (RFRA). In June 1999, the Texas legislature passed the Texas Religious Freedom Restoration Act (TRFRA). This Comment argues the TRFRA is unnecessary …
Discrimination And Business Regulation (The Supreme Court And Local Government Law: The 1999-2000 Term), Eileen Kaufman
Discrimination And Business Regulation (The Supreme Court And Local Government Law: The 1999-2000 Term), Eileen Kaufman
Scholarly Works
No abstract provided.
Response: Continuing The Conversation, Akhil Reed Amar
Response: Continuing The Conversation, Akhil Reed Amar
University of Richmond Law Review
In The Bill of Rights: Creation and Reconstruction, I aimed to start a conversation, not end one. I am thus grateful for the generosity of the many fine scholars who in the preceding pages have graciously accepted the invitation to converse. And I am especially grateful for the extraordinary hospitality of the University of Richmond Law Review, which has kindly given a home to this conversation.
A Response To Professor Rubenfeld, Jonathan D. Hacker
A Response To Professor Rubenfeld, Jonathan D. Hacker
Michigan Law Review
Professor Jed Rubenfeld has offered in these pages an ingenious explanation for why the Supreme Court was right to strike down the Religious Freedom Restoration Act (RFRA) in City of Boerne v. Flores. Rubenfeld finds in the First Amendment's Establishment Clause a historical and inherent principle he calls "antidisestablishmentarianism": a prohibition on acts of Congress that "disestablish" religion in the several states. Rubenfeld reads the Establishment Clause as proscribing not only congressional acts that "establish" religion but also all congressional acts that "dictate a position on religion for states," including laws designed to ensure that states abide by the requirements …
Reply: Did The Fourteenth Amendment Repeal The First?, Jed Rubenfeld
Reply: Did The Fourteenth Amendment Repeal The First?, Jed Rubenfeld
Michigan Law Review
To get right to the point: Mr. Hacker does not disagree that the Establishment Clause would, in the absence of the Fourteenth Amendment, have prohibited Congress from passing a nationwide religion law like RFRA. He believes, however, that the Fourteenth Amendment has in part repealed the First. Of course, he doesn't want to say repealed. The language of repeal is not pleasant to the ears of those who would like to forget about First Amendment antidisestablishmentarianism. The Fourteenth Amendment did not "repeal any aspect of the text of the [Establishment] Clause," Hacker says, but only "change[d] profoundly the meaning of …
Advisory Opinions By Federal Courts, Phillip M. Kannan
Advisory Opinions By Federal Courts, Phillip M. Kannan
University of Richmond Law Review
Since 1793, the affirmative grant of authority to federal courts in Article III of the Constitution to hear and decide cases or controversies has been interpreted to prohibit these courts from giving advisory opinions. In that year, United States Supreme Court Chief Justice Jay, Justice Cushing, and District Judge Duane rejected a provision in a 1792 act of Congress that would have required the Supreme Court to settle federal pension claims of widows and orphans subject to the approval of the Secretary of War. The basis for the position taken by the Chief Justice was "that neither the legislative nor …
A Matter Of Power: Structural Federalism And Separation Doctrine In The Present, Frances Howell Rudko
A Matter Of Power: Structural Federalism And Separation Doctrine In The Present, Frances Howell Rudko
University of Richmond Law Review
Public reaction to the 1823 Supreme Court decision in Green v. Biddle prompted John Marshall's letter to Henry Clay, who had argued the case as amicus curiae for the defendant. The letter is significant because Marshall, who had been a legislator himself, candidly expresses not only his personal dissatisfaction with the congressional assault on the 1823 decision but also the constitutional basis for his opinion. The significance of Marshall's extrajudicial opinion becomes more apparent when it is considered in the aftermath of the recent tug-of-war between Congress and the Court which culminated in the decision in City of Boerne v. …
Justice O'Connor's Dilemma: The Baseline Question, Suzanna Sherry
Justice O'Connor's Dilemma: The Baseline Question, Suzanna Sherry
Vanderbilt Law School Faculty Publications
Many commentators view City of Boerne v. Flores,' in which a divided Supreme Court struck down the Religious Freedom Restoration Act of 1993 (RFRA), as a major defeat in the battle for religious freedom in the United States.' Be that as it may, Flores is also an opportunity to begin a discussion on another issue entirely: the appropriate relationship between dissenting Justices and majority opinions. Should a Justice who disagrees with a majority of the Court nevertheless accept the majority's holding as defining the law for purposes of establishing a baseline for subsequent questions? In order to understand the question …
The Long Road Towards Restoration Of Religious Freedom: Congressional Options In Light Of City Of Boerne V. Flores, J. Jeffrey Patterson
The Long Road Towards Restoration Of Religious Freedom: Congressional Options In Light Of City Of Boerne V. Flores, J. Jeffrey Patterson
Kentucky Law Journal
No abstract provided.
Judicial Supremacy And The Settlement Function, Robert F. Nagel
Judicial Supremacy And The Settlement Function, Robert F. Nagel
Publications
No abstract provided.
Freedom At Risk: The Implications Of City Of Boerne V. Flores On The Merger Of Catholic And Non-Catholic Hospitals, Heather L. Carlson
Freedom At Risk: The Implications Of City Of Boerne V. Flores On The Merger Of Catholic And Non-Catholic Hospitals, Heather L. Carlson
Saint Louis University Public Law Review
No abstract provided.
Recent Developments In American Indian Law
Recent Developments In American Indian Law
American Indian Law Review
No abstract provided.