Law Commons^™

The Sound Of Silence: Eligibility Qualifications And Article Iii, James F. Ianelli

James Ianelli

The Constitution’s eligibility qualifications in Articles I and II have drawn increased scrutiny in recent national elections. No scholarship to date, however, has examined why the Framers omitted any comparable qualifications from Article III. This paper presents the question of what made the judiciary unique relative to the other branches such that any nominated and confirmed candidate could sit on the federal bench.

The answer to this question sheds new light on the wisdom of eligibility qualifications in Articles I and II. Although no direct historical record details the basis for the omission, a number of factors appear relevant. Without …

Torture, Impunity, And The Need For Independent Prosecutorial Oversight, Fran Quigley

Fran Quigley

When executive branch misconduct is alleged, an inherent conflict of interest is presented by investing prosecutorial discretion in a U.S. Attorney General appointed by, and serving at the pleasure of, the President.

Various commentators, including Justice Antonin Scalia, Professor Stephen Carter, and the many critics of the former independent counsel statute, have posited that this conflict will be overcome by checks on executive power provided by the legislative branch, the judiciary, and political pressure.

That sanguine view of adequate executive branch oversight was put to the test when acts of torture were authorized by high-level members of the George W. …

How The Courts, Along With Public Dissatisfaction With The Status Quo, Ironically Aided In The Creation Of New Hollywood, Which Promoted Films Of Lawlessness, Disorder And Instability, Sam A. Blaustein

Sam A Blaustein

The period known as New Hollywood in American film was brought about by several seminal American legal decisions coupled with a growing dissatisfaction with the status quo. A series of First Amendment cases, along with the 1948 Paramount decision, forced Hollywood to produce graphic and existential films that showcased in unprecedented style the issues faced by the emerging disaffected youth generation.

The Principle Of Equal Treatment In Triangular Relationships, Michael Gruenberger

Michael Gruenberger

The European Court of Justice [ECJ] held in Coleman v. Attrigde Law, Case C-303/06, E.C.R. I- [2008], that the prohibition of direct discrimination laid down in Art. 1 and 2 Directive 2000/78/EC is not limited only to people who are themselves disabled, but includes a less favorable treatment of an employee which is based on the disability of her child, whose care is provided primarily by that employee. The Coleman case is the first noticeable case in European anti-discrimination law with facts involving a triangular relationship: the person who presumably discriminates, the injured party and the carrier of the characteristics …

Challenging The Doctrine Of Consular Non-Reviewability In Immigration Cases, Donald S. Dobkin

Donald S. Dobkin

No abstract provided.

And The Ban Plays On . . . For Now: Why Courts Must Consider Religion In Marriage Equality Cases, Matthew E. Feinberg

Matthew E Feinberg

The gay marriage ban: it is one of the most controversial issues in politics, in society, in religion, and in law today. In each venue, anything goes, everyone has an opinion, and the result is rarely consistent. The decisions may be different, but the claimants’ arguments are usually the same – banning same-sex marriage denies same-sex couples equal protection under the law.

The pink elephant in the marriage equality courtroom is religion, yet it is extremely rare for same-sex marriage bans to receive First Amendment religious rights-based inquiry. In 2009, the Supreme Court of Iowa changed all that. In its …

An Escape Route From The Medellin Maze, Anthony S. Winer

Anthony S. Winer

The recent Supreme Court decision in Medellín v. Texas created a veritable “maze” for foreign prisoners in the U.S., and their countries of nationality, who might wish to enforce their rights under the Vienna Convention on Consular Relations (the “VCCR”). This decision, and other Supreme Court and lower federal court opinions, have erected “dead ends” for prisoners and their countries of nationality that block their “escape” from this maze. These opinions, among other implications, cast substantial doubt on the availability of judicial relief for individuals under the VCCR, foreclose executive enforcement, and exclude the possibility of corrective injunctions for many …

The True Cost Of Economic Rights Jurisprudence, Max Mccann

Max McCann

This Article discusses the distinction between economic and individual rights in contemporary political and legal discourse. As discussed herein, the phrase economic rights typically invokes notions of the ability to spend, save, and transfer wealth freely, as well as other related issues, such as the deregulation of industry and tax reform. In contrast, individual rights conjures ideas of being free in one’s person, including reproductive rights, free speech, and freedom of assembly.

With both historic and recent examples, this Article argues that the distinction between economic and individual rights is problematic at best. Rights spring forth from human interests, and …

The Supreme Court's Assault On Litigation: Why (And How) It Might Be A Good Thing For Health Law, Abigail R. Moncrieff

Abigail R. Moncrieff

In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in …

Public Interest Litigation In India: Overreaching Or Underachieving?, Varun Gauri

Varun Gauri

Public interest litigation has historically been an innovative judicial procedure for enhancing the social and economic rights of disadvantaged and marginalized groups in India. In recent years, however, a number of criticisms of public interest litigation have emerged, including concerns related to separation of powers, judicial capacity, and inequality. These criticisms have tended to abstraction, and the sheer number of cases has complicated empirical assessments. This paper finds that public interest litigation cases constitute less than 1 percent of the overall case load. The paper argues that complaints related to concerns having to do with separation of powers are better …

Sex Is Not Enough: How Schroer Teaches Us That Transgender Employees Need Explicit Protection From Discrimination, Heron Greenesmith

Heron Greenesmith

In Schroer v. Billington, Judge Robertson of the DC District Court held that transgender employees are protected from discrimination by Title VII's prohibition on discrimination "because of . . . sex." While the decision was a ground breaking one, this article argues that it is not enough to truly protect transgender employees from discrimination. The article advocates that to provide true protection, Congress should pass the Employment Non-Discrimination Act, which provides explicit protection for employees on the basis of sexual orientation and gender identity.

Proportionality And Prosecutorial Discretion: Challenges To The Constitutionality Of Georgia’S Death Penalty Laws And Procedures Amidst The Deficiencies Of The State’S Mandatory Appellate Review Structure, Kristen M. Nugent

Kristen Nugent

Following the U.S. Supreme Court’s recent denial of certiorari in Walker v. Georgia—in which Justice Stevens and Justice Thomas expressed sharply divergent interpretations of the Court’s precedent regarding the importance of a thorough proportionality review to Georgia’s capital sentencing scheme—the Court seems poised to reexamine the constitutional implications of Georgia’s death penalty statute and the manner in which it is implemented. In anticipation of such an analysis, and in order to advocate that the U.S. Supreme Court clarify its position in a way that aligns with its longstanding tradition of requiring moderation in the infliction of death, this article dissects …

“U.S. Consumer Protection: Striking A Balance Between The Fda Approval Process And State Tort Law Claims Through The Medical Device Safety Act Of 2009”, Rachel V. Rose

rachel v rose

No abstract provided.

The Principle Of Proportionality: Its Dimensions And Limits, Juan Cianciardo

Juan Cianciardo

The purpose of the present paper can be synthesized in the following points: a) to expose the concept of the principle of proportionality in its broadest sense and its different components or dimensions; b) to draw the attention on an approach which is usually not studied by authors, that is, the fact that the application of the principle is not enough to guarantee the supremacy of the human rights, at least in some cases; c) lastly, to point out those requirements that could protect proportionality from the risk mentioned in b).

A Caustic Critique Of District Of Columbia V Heller: An Extreme Makeover Of The Second Amendment, Robert L. Potter

Robert L Potter

ABSTRACT OF ARTICLE In June, 2008, in District of Columbia v. Heller, the Supreme Court of the United States (5-4) held that the Second Amendment contained a right to possess and own firearms for personal purposes, removing any vestige of the famous introductory clause by James Madison, “A well regulated militia being necessary for the security of a free State ….” In this article the author takes serious issue with the methodology of the majority’s opinion by Mr. Justice Scalia, and demonstrates that: (1) Mr. Justice Scalia’s attempt to prove that “bear arms” does not have its idiomatic meaning, “to …

Prisons Without Convicts: Why Similar Protections As Those Offered To Prison Inmates By The Constitution Should Be Extended To Immigrant Detainees, Paul Wayner

Paul Wayner

No abstract provided.

Needles And Notebooks: The Limits Of Requiring Immunization For School Attendance, Allan J. Jacobs

Allan J. Jacobs

The constitutional requirements for compulsory vaccination are analyzed in the context of the release of a vaccine against human papillomavirus, a virus associated with development of various kinds of cancer, requiring many years after infection for cancer to develop. Examination of the requirements of Jacobson v. Massachusetts suggests that proposed vaccination programs be subjected to a balancing test that considers the severity of the disease, the risks of the vaccine, the amount of overall clinical experience with the vaccine, and alternate methods of prevention. It is argued that there are further constraints if vaccination is to be a requirement for …

Two Dissents, Charles S. Doskow

Charles S Doskow

This essay discusses individual dissents by two justices of the Supreme Court in cases decided at the close of the most recent term, and comments on the individual qualities that led each to make individual comments. The dissent of Justice David Souter in Osborne, in which the majority refused to find a constitutional right to post-conviction DNA testing, urged a moderate view with respect to the creation of new rights where technology has altered traditional fact patterns. Justice Clarence Thomas’s dissent in the voting rights case is striking, in that he alone on the Court would have held the 2006 …

Childhood Immunizations: Paralysis On Parental Rights, Demand On Taxpayer Dollars, Rena L. Holmes Jones

Rena L Holmes Jones

The rise in the incidence of Autism Spectrum Disorder (ASD) is one of the most serious public health issues in recent years. The current statistics suggests that roughly one child out of every 150 has autism or an autistic-like disorder, compared to earlier estimates placing the rate at four or five children out of every 10,000. Autism is a condition that typically reveals itself within the first 0-4 years of life. The wide continuum of associated cognitive and neurobehavioral disorders have three core-defining features: impairments in socialization, impairments in verbal and nonverbal communication, and restricted and repetitive patterns of behaviors. …

Has The Fourth Amendment Gone To The Dogs?: Unreasonable Expansion Of Canine Sniff Doctrine To Include Sniffs Of The Home, Leslie A. Lunney

Leslie A Lunney

No abstract provided.

Peek-A-Boo I See You:The Constitution, Defamation Plaintiffs And Pseudonomous Internet Defendants, Charles S. Doskow

Charles S Doskow

Plaintiffs seeking to bring defamation actions arising out of anonymous or pseudononynous speech on the Internet must often seek court assistance in discovering the true identity of the speaker. Normally the website will not disclose the identities. The constitutional right to anonymous speech is often asserted in opposition to motions for disclosure. The courts have imposed varying requirements on plaintiffs seeking defendants’ identities, ranging from requiring simply a good faith pleading to showing sufficient facts to meet a summary judgment motion. A recent Maryland case adopts a balancing test. This article argues that plaintiffs should not be unduly hindered by …

Rules And Tools Of Nonprofit Lobbying, Sharon Wilson

Sharon Wilson

Abstract: This article focuses primarily on the federal tax law restrictions on lobbying and political campaign activities of 501( c)(3) organizations. A brief history of the restrictions on lobbying is followed by an instructional guide for nonprofit organizations and attorneys seeking to advise nonprofits about permissible conduct in this arena. Opportunities for greater political involvement through use of sec 501(h), sec 501©(4) and other strategies that have been deemed permissible by the Internal Revenue Service are explored. An examination of the IRS’s questionable annual examination process for nonprofits is explored.

The Employment Non-Discrimination Act: An Argument For H.R. 3685, Deborah L. Cook

Deborah L Cook

This article examines the language of H.R. 3685 and compares it to an earlier version of the Employment Non-Discrimination Act that was introduced in April of 2007 as H.R. 2015. Drawing upon arguments from both conservative and liberal perspectives challenging the Act, this article argues that the latest version of the Employment Non-Discrimination Act, proposed in September of 2007 as H.R. 3685, offers greater promise for protecting gay, lesbian and bisexual Americans from discrimination in the workplace. The revised Employment Non-Discrimination Act will act to ensure that individuals will be protected regardless of their sexual orientation by the same fundamental …

Has The Fourth Amendment Gone To The Dogs?: Unreasonable Expansion Of Canine Sniff Doctrine To Include Sniffs Of The Home, Leslie A. Lunney

Leslie A Lunney

No abstract provided.

Cases And Materials On Privatization, Alexander Volokh

Alexander Volokh

These are the materials for my course on privatization, and the draft for an eventual casebook.

Has The Fourth Amendment Gone To The Dogs?: Unreasonable Expansion Of Canine Sniff Doctrine To Include Sniffs Of The Home, Leslie A. Lunney

Leslie A Lunney

No abstract provided.

Has The Fourth Amendment Gone To The Dogs?: Unreasonable Expansion Of Canine Sniff Doctrine To Include Sniffs Of The Home, Leslie A. Lunney

Leslie A Lunney

No abstract provided.

A Free Speech Right To Impugn Judicial Integrity In Court Proceedings, Margaret C. Tarkington

Margaret C Tarkington

Throughout the United States, state and federal courts discipline and sanction attorneys who make disparaging remarks about the judiciary and thereby impugn judicial integrity. In so doing, courts have almost universally rejected the constitutional standard established in New York Times v. Sullivan for punishing speech regarding government officials. While courts have imposed severe sanctions regardless of the forum where the speech has occurred, many of the cases involve speech made by attorneys in court proceedings. The existing scholarly literature generally supports the denial of First Amendment protection in such cases, indicating that attorney speech when made in court proceedings is …

Which Came First The Parent Or The Child?, Mary P. Byrn

Mary P. Byrn

From the moment a child is born, she is a juridical person endowed with constitutional rights. A child’s parents, however, do not become legal parents until a state statute grants them the fundamental right to raise one’s child. The state, therefore, exercises considerable power and discretion when it drafts the parentage statutes that determine who becomes a legal parent. This article asserts that the state, through its parens patriae power, has a duty to act as an agent for children when it drafts its parentage statutes. In particular, the state must adopt parentage statutes that satisfy children’s fundamental right to …

Impeach Brent Benjamin Now!? Giving Adequate Attention To Failings Of Judicial Impartiality, Jeffrey W. Stempel

Jeffrey W Stempel

In Caperton v. A.T. Massey Coal Co., Inc., 129 S. Ct. 2252 (2009), the Supreme Court by a 5-4 vote vacated and remanded a decision of the West Virginia Supreme Court of Appeals in which Justice Brent Benjamin cast the deciding vote in favor of Massey, a company run by Don Blankenship, who had provided $3 million in support to Benjamin during his 2004 election campaign.

Despite the unsavory taste of the entire episode, the Court was excessively careful not to criticize Justice Benjamin. Overlooked because of this undue judicial civility and controversy about the constitutional aspects of the decision …