Law Commons^™

הורות משפטית מן הדין ומן הצדק - Legal Parenthood - Law And Justice, Yehezkel Margalit

Hezi Margalit

Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson

Katharine Jackson

This paper first examines and critiques the group rights to religious exercise derived from the three ontologies of the corporation suggested by different legal conceptions of corporate personhood often invoked by Courts. Finding the implicated groups rights inimical to individual religious freedom, the paper then presents an argument as to why a discourse of intra-corporate toleration and voluntariness does a better job at protecting religious liberty.

What Should Law Enforcement Role Be In Addressing Quality Of Life Issues Associated With Section 8 Housing?, D'Andre D. Lampkin

D'Andre Devon Lampkin

The purpose of this research project is to discuss the challenges law enforcement face when attempting to address quality of life issues for residents residing in and around Section 8 federal housing. The paper introduces readers to the purpose of Section 8 housing, the process in which residents choose subsidized housing, and the legal challenges presented when law enforcement agencies are assisting city government to address quality of life issues. For purposes of this research project, studies were sampled to illustrate where law enforcement participation worked and where law enforcement participation leads to unintended legal ramifications.

Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the conceptualization and methodologies of determining legal parentage in the U.S. and other countries in the western world. Through various sociological shifts, growing social openness and bio-medical innovations, the traditional definitions of family and parenthood have been dramatically transformed. This transformation has led to an acute and urgent need for legal and social frameworks to regulate the process of determining legal parentage. Moreover, instead of progressing in a piecemeal, ad-hoc manner, the framework for determining legal parentage should be comprehensive. Only a comprehensive solution will address the differing needs of today’s …

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Hezi Margalit

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known …

Can Dna Be Speech?, Jorge R. Roig

Jorge R Roig

"Immigrants Are Not Criminals": Respectability, Immigration Reform, And Hyperincarceration, Rebecca Sharpless

Rebecca Sharpless

Agency, Equality, And Antidiscrimination Law, Tracy E. Higgins, Laura A. Rosenbury

Laura A. Rosenbury

Some commentators, perhaps a minority, have argued that the Equal Protection Clause should be read to require the use of race-conscious policies when necessary to eradicate or remedy the most serious consequences of racial inequality. Others have argued that such policies, though not required, should be permitted when duly adopted by the majority of the populace to promote the interests of an historically oppressed minority. Still others, including now a majority of the Supreme Court, take the view that the Constitution forbids virtually all explicit uses of race by the state. In this Essay, we do not enter this debate …

The Struggle For Justice In The Civil Rights March From Selma To Montgomery: The Legacy Of The Magna Carta And The Common Law Tradition, Winston P. Nagan

Winston P Nagan

The article introduces the reader to the idea that justice involves social action and struggle. It then shifts the perspective to the struggle for justice in historic memory. The author focuses on the struggle to limit sovereign absolutism, the outcome of which is reflected in the Magna Carta. The Magna Carta was not a gift of the sovereign, it represented a political struggle to obtain it. The article then traces the evolution of law in the common law tradition and the importance of casuistic legal methods to ground the specific rights of citizens. The article draws reference to the struggle …

Title Vii V. Seniority: The Supreme Court Giveth And The Supreme Court Taketh Away, Berta E. Hernández-Truyol

Berta E. Hernández-Truyol

Congress intended to solve the widespread problem of nonegalitarian hiring practices by enacting title VII of the Civil Rights Act of 1964 (the Act), during the apogee of the civil rights era. The Act represented a national commitment to end discrimination and to promote equality in employment. The enactment of title VII spawned extensive commentary on the effect of facially neutral employment practices that perpetuated pre-Act discrimination. Particular controversy arose concerning the application of seniority rules to blacks in jobs or seniority units from which they previously had been excluded because of their race.

The problem of accommodating seniority systems …

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 …

Deported To Die? Applying The Categorical Approach To The "Particularly Serious Crime" Bar, Fatma E. Marouf

Fatma E Marouf

A noncitizen who has been convicted of a “particularly serious crime” can be deported to a country where there is a greater than fifty percent chance of persecution or death. Yet the Board of Immigration Appeals (BIA) has not provided a clear test for determining what is a “particularly serious crime.” The current test, which combines an examining of the elements of the crime with a fact-specific inquiry, has led to arbitrary and unpredictable decisions about what types of offense are “particularly serious.” This Article argues that the categorical approach for analyzing convictions should be applied to the particularly serious …

Dealing With Dangerous Women: Sexual Assault Under Cover Of National Security Laws In India, Surabhi Chopra Prof.

Surabhi Chopra Prof.

DEALING WITH DANGEROUS WOMEN: SEXUAL ASSAULT UNDER COVER OF NATIONAL SECURITY LAWS IN INDIA

This article examines violence against women suspected of being security threats in India’s internal conflict zones, one of the very few scholarly works to do so.

I focus on two cases in particular. In 2004, Thangjam Manorama was arrested by paramilitaries on suspicion of belonging to a violent separatist group, and found raped and murdered several hours later. I look at her family’s attempts to hold the armed forces accountable for her death. I also look at the ongoing criminal prosecution of Soni Sori, an indigenous …

The Constitutional Rhetoric Of White Innocence

Cecil J. Hunt II

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 …

Is It Unconstitutional To Prohibit Faith-Based Schools From Becoming Charter Schools?, Stephen D. Sugarman

Stephen D Sugarman

This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. First, the “school choice” movement of the past 50 years is described, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. In this setting I argue a) based on the current state of the law it would not be unconstitutional (under the First Amendment’s Establishment Clause) for states to elect to make faith-based schools eligible for …

After Citizens United: Extending The Liberal Revolution To The Multinational Corporation, Daniel J.H. Greenwood

Daniel J.H. Greenwood

This Article proposes several routes to reverse Citizens United, the Supreme Court case holding that corporate campaign spending is “speech” protected by the First Amendment.

The core problem of Citizens United is that corporations are illegitimate participants in our politics. Corporate law requires corporate officers to pursue the corporate interest. They are thus disqualified from considering the central political questions of a democratic capitalist country: defining the rules of the market (which define corporate interests) and balancing profit against other, more important, values.

The high road to fixing Citizens United is a constitutional amendment to extend the fundamental insights …

When “One Country, Two Systems” Meets “One Person, One Vote”: The Law Of Treaties In The Crucible Of Hong Kong’S Election Crisis, Gregory S. Gordon

Gregory S. Gordon

In Hong Kong’s recent election crisis, an uprising against China’s pre-selecting candidates for Chief Executive and thus foreclosing civic-nomination, both sides (establishment and pro-democracy) have attempted to interpret the term “universal suffrage” based exclusively on its inclusion in Hong Kong’s mini-constitution, the Basic Law. In so doing, however, they have given short shrift to the agreement that gave rise to the Basic Law in the first place: the 1984 Sino-British Joint Declaration. But while the Joint Declaration provides important textual insights, it simultaneously raises significant issues regarding application of the law of treaties. For example, did the Joint Declaration terminate …

Obergefell V. Hodges: How The Supreme Court Should Have Ruled, Adam Lamparello

Adam Lamparello

In Obergefell, et al. v. Hodges, Justice Kennedy’s majority opinion legalizing same-sex marriage was based on “the mystical aphorisms of a fortune cookie,” and “indefensible as a matter of constitutional law.” Kennedy’s opinion was comprised largely of philosophical ramblings about liberty that have neither a constitutional foundation nor any conceptual limitation. The fictional opinion below arrives at the same conclusion, but the reasoning is based on equal protection rather than due process principles. The majority opinion holds that same-sex marriage bans violate the Equal Protection Clause because they: (1) discriminate on the basis of gender; (2) promote gender-based stereotypes; and …

Disparate Impact And Pregnancy: Title Vii's Other Accommodation Requirement, L. Camille Hebert

L. Camille Hebert

There has been a good deal of attention focused recently on questions concerning how employers are allowed to treat pregnant women in the workplace under Title VII of the Civil Rights Act of 1964. The Equal Employment Opportunity Commission has issued revised guidance addressing issues of pregnancy, including the requirements imposed by Title VII with respect to the accommodation of disabling conditions experienced by women who are pregnant or who have recently given birth. And the United States Supreme Court has recently decided a case, Young v. United Parcel Service, Inc., which addresses the circumstances under which an employer will …

Hegelian Dialectical Analysis Of United States Election Laws, Charles E. A. Lincoln Iv

Charles E. A. Lincoln IV

This Article uses the dialectical ideas of German philosopher Georg Wilhelm Friedrich Hegel (1770-1833) in application to the progression of United States voting laws since the founding. This analysis can be used to interpret past progression of voting rights in the US as well as a provoking way to predict the future trends in US voting rights. First, Hegel’s dialectical method is established as a major premise. Second, the general accepted history of United States voting laws from the 1770s to the current day is laid out as a minor premise. Third, the major premise of Hegel’s dialectical method weaves …

The Power Of The Body: Analyzing The Corporeal Logic Of Law And Social Change In The Arab Spring, Zeina Jallad, Zeina Jallad

Zeina Jallad

The Power of the Body:

Analyzing the Logic of Law and Social Change in the Arab Spring

Abstract:

Under conditions of extreme social and political injustice - when human rights are under the most threat - rational arguments rooted in the language of human rights are often unlikely to spur reform or to ensure government adherence to citizens’ rights. When those entrusted with securing human dignity, rights, and freedoms fail to do so, and when other actors—such as human rights activists, international institutions, and social movements—fail to engage the levers of power to eliminate injustice, then oppressed and even quotidian …

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Boy Scouts & Burning Crosses: Bringing Balance To The Court’S Lopsided Approach To The Intersection Of Equality And Speech

Russell K Robinson

This article identifies a previously-ignored pattern of Supreme Court decisions that privilege one competing constitutional value, either speech or equality, and subordinate the other—with little or no reasoning explaining its choice. In adjudicating such cases, including two cases decided last term, the Supreme Court has steadfastly treated these disputes as either a basic equality case or a simple speech case. This dichotomy is a problem because once the Court places a case within either a speech or equality paradigm, it is constrained by certain rigid analytical presumptions. These presumptions threaten to stunt the analysis and to deprive the Court of …

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.

On Brown V. Board Of Education's 50th Anniversary: To Integrate Or Separate Is Not The Question

Thomas Kleven

By ending official apartheid, Brown represented a great victory in the struggle for racial justice in the United States. Following more than a decade of inaction as a result of its “all deliberate speed” formulation, and in response to the then prevailing sentiment among the proponents of Brown, the Supreme Court began to push for the integration of school districts that engaged in segregation by law or practice. This integrationist push lasted from the late 1960s to the late 1970s. Beginning in the mid-1970s the Court began to limit the remedies for segregation by law or practice, and beginning in …

Hmda, Housing Segregation, And Racial Disparities In Mortgage Lending, Charles M. Lamb Ph.D.

Charles M Lamb Ph.D.

No abstract provided.

Rethinking The Context Of Hate Speech Regulation, Robert Kahn

Robert Kahn

In this essay I review Michael Herz and Peter Molnar (eds.) The Content and Context of Hate Speech: Rethinking Regulation and Responses (Cambridge University Press 2012). As I show in the review, the Herz and Molnar volume advances our understanding of comparative hate speech regulation in three ways. First, the essays suggest that local context has a role to play in understanding, assessing, and applying hate speech regulations, even in an age when online hate speech is pressuring states and regions to reach common solutions to these problems. Second, the essays rebut the commonly held premise that the United States …

Separate And Unequal?: The Problematic Segregation Of Special Populations In Charter Schools Relative To Traditional Public Schools, Julian Vasquez Heilig

Julian Vasquez Heilig

The extent to which special student populations (ELL, Special Education and Economically Disadvantaged) gain access to charter schools is understudied. In this article we compare the enrollment of high-need special populations in charter schools with non-charter public schools at the state, district, and local levels. State-level dissimilarity analyses show only modest disparities in segregation and access of high-need students within the Texas charter system compared to traditional public schools. However, local-level descriptive and geospatial analyses of charters in a large metropolitan area shows that there are large disparities in the enrollment of high-need students relative to traditional public schools nearby. …

Beyond The Written Constitution: A Short Analysis Of Warren Court, Thiago Luis Santos Sombra

Thiago Luís Santos Sombra

This essay propose an analysis about how Warren Court became one of the most particular in American History by confronting Jim Crow law, especially by applying the Bill of Rights. In this essay, we propose an analysis of how complex the unwritten Constitution is. Cases like Brown vs. Board of Education will be analyzed from a different point of view to understand the methods of the Court.

Justice Kennedy's Decision In Obergefell: A Sad Day For The Judiciary, Adam Lamparello

Adam Lamparello

Same-sex couples have a constitutional right to marriage under the Equal Protection Clause, not under Justice Kennedy’s self-serving and ever-changing definition of liberty. The long-term impact of Kennedy’s decision will be to the Court’s institutional legitimacy. Chief Justice Roberts emphasized that the legitimacy of this Court ultimately rests “upon the respect accorded to its judgments,” which is based on the perception—and reality—that we exercise humility and restraint in deciding cases according to the Constitution and law.” Justice Kennedy’s decision eschewed these values, giving the Court the power to discover “new dimensions of freedom,” and to ensure that all citizens, through …