Law Commons^™

Friendly Fire Casualties Of American Civil Liberty In The War On Terror: Humanitarian Law Project V. Holder And The Erosion Of Free Speech, Alicia C. Armstrong Esq.

Alicia C Armstrong

The holding in Humanitarian Law Project (HLP) v. Holder marks a significant shift in First Amendment doctrine, unprecedented since the early twentieth century “Red Scare” cases. The HLP decision suggests that free speech principles which have been developing for over half a century—culminating in the paramount protection of “subversive advocacy”—are less deserving of adherence in the face of terrorism than in times of relative peace. Throughout the past several decades, the Court has retreated from the notion that speech which is disturbing to public opinion but benign in its capability to incite imminent lawless action deserves lower legal protection. To …

Immigrant Laws, Obstacle Preemption And The Lost Legacy Of Mcculloch, Lauren Gilbert

Lauren Gilbert

Using Congress’ perceived failure to enforce the immigration laws as a backdrop, this paper will explore how the Supreme Court’s recent decision in Chamber of Commerce v.Whiting upholding the Legal Arizona Workers Act exposes some of the tensions and contradictions in modern preemption doctrine. Examining the relationship among express, field, impossibility and obstacle preemption, I explore three emerging trends, all evident in Chamber of Commerce v. Whiting. The first is an increasing reluctance of the Court to find implied obstacle preemption. The second related trend is an inclination to expand the scope of impossibility preemption beyond the physical impossibility cases. …

Bearing Injustice: Foster Care, Pregnancy Prevention, And The Law, Taylor I. Dudley

Taylor I Dudley

The State has numerous responsibilities to children and youth in and emancipating from foster care. Ensuring a foster child’s medical welfare is among the most imperative of the State’s obligations. Pregnancy prevention is a unique component of medical welfare and long-term well-being. Indeed, it stands out as a responsibility that the State must fulfill to counteract the likelihood of diminished life outcomes that so many former foster children face. However, like many problems facing foster children, pregnancy is noticed, yet unaddressed; contemplated, yet unresolved. The State’s failure to adequately address pregnancy prevention among youth in foster care is unconstitutional under …

For Carrying Into Execution The Foregoing Powers: Interpretative Theories Of The Necessary And Proper Clause In Light Of United States V. Comstock, Marianella Medelius

Marianella Medelius

The Necessary and Proper Clause, also known as the Sweeping Clause, is the last of the eighteen enumerated powers granted to Congress under Article I, Section 8 of the Constitution. The clause provides Congress with the ability to make laws necessary and proper to carry out the exercise of its powers. Contrary to what is often believed, the New Deal’s expansion of Congressional powers was not the product of the Supreme Court directly extending the scope of the Commerce Clause. Instead, it was the Court’s liberal interpretation of the Necessary and Proper Clause that enabled the Court to uphold laws …

For Carrying Into Execution The Foregoing Powers. Interpretative Theories Of The Necessary And Proper Clause In Light Of United States V. Comstock, Marianella Medelius

Marianella Medelius

The Necessary and Proper Clause, also known as the Sweeping Clause, is the last of the eighteen enumerated powers granted to Congress under Article I, Section 8 of the Constitution. The clause provides Congress with the ability to make laws necessary and proper to carry out the exercise of its powers. Contrary to what is often believed, the New Deal’s expansion of Congressional powers was not the product of the Supreme Court directly extending the scope of the Commerce Clause. Instead, it was the Court’s liberal interpretation of the Necessary and Proper Clause that enabled the Court to uphold laws …

The Accommodation Of The Shari’A Within Western Legal Systems, Rex J. Ahdar

Rex J Ahdar

The article addresses the highly topical and controversial issue of the accommodation of the Shari'a within Western legal systems. It argues that the issue raises fundamental questions, not only about the nature of shari'a, but also about the liberal-constitutional foundations of 'the West' as we know it. The article closely analyzes and scrutinizes these questions from various historical, philosophical, religious and legal points of view. We conclude that when these matters are properly considered, there is room for a carefully defined accommodation of Shari'a within the legal systems of the West, but with certain important qualifications.

Delgado V. Araguz: A Trial Court’S Medical Opinion And The Constitutional Injury That Results., Abel C. Ramirez Jr.

Abel C Ramirez Jr.

In the state of Texas, “a marriage between persons of the same sex is not legally recognized, and will be rendered void.” Therefore, a marriage license will only be issued to a couple that consists of one person who fits within the exclusive gender category of “male” and one person who fits within the exclusive gender category of “female.” Traditionally, “gender” has been determined by a singular method – one’s genitalia at birth. However, what if it isn’t that simple? What if a person is born without a distinct gender (a person who is neither distinctly male, nor distinctly female)? …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

The Right To Learn: Intellectual Honesty And The First Amendment, Jeffrey M. Cohen

Jeffrey M. Cohen

Science education is one of the most hotly contested issues in public debate. Even after decades of jurisprudence and scholarly analysis, politicians still ignite public passions by suggesting that creationism or intelligent design theory be taught alongside of evolution in public school science classrooms. Despite political rhetoric, the Establishment Clause has been steadfastly used to prevent religion masquerading as science from entering the science classroom. However, public officials have launched attacks recently on other scientific theories, such as climate change, that are not religiously motivated. Students are left in these instances without resort to the Establishment Clause and are potentially …

Inclusionary Zoning: The Evolution Of Present-Day Mount Laurel, Kelsey Hotchkiss

Kelsey Hotchkiss

This essay analyzes the present-day effect of the prominent New Jersey Supreme Court Mount Laurel I and II cases on inclusionary zoning. The Mount Laurel decisions, which initiated the provision of affordable housing to low-income New Jersey residents, remain influential in current local legislation. Today, the Mount Laurel Doctrine continues to encourage the development of affordable housing through legislative initiatives designed to satisfy both the constitutional rights of developers as well as the needs of local, low-income families.

''Here, There And Everywhere'': Human Dignity In Contemporary Law And In The Transnational Discourse, Luis Roberto Barroso Professor

Luis Roberto Barroso Professor

ABSTRACT: Over the past several decades, human dignity has become an omnipresent idea in contemporary law. This Article surveys the use of human dignity by domestic and international courts and describes the concept’s growing role in transnational discourse, with special attention paid to the case law of the United States Supreme Court. The Article then examines the legal nature of human dignity, finding it to be a constitutional principle rather than a freestanding fundamental right, and develops a unifying and universal identity for the concept. At its core, human dignity contains three elements - intrinsic value, autonomy and community value …

You Can Say That Again!: A Way Out Of The Compelled Commercial Speech Conundrum, Dayna B. Royal

Dayna B. Royal

In the last decade the Supreme Court has modified the compelled-speech and commercial-speech doctrines by creating a hybrid of the two—compelled-commercial speech. This nascent doctrine leaves unanswered serious questions about how it coexists with other doctrines in the First Amendment landscape.

This paper proposes a principled means to resolve these questions by drawing on an innovative behavioral-science theory called Cultural Cognition to provide a system for categorizing forced commercial-speech regulations. By establishing which test applies to determine whether regulations violate the First Amendment, this framework should help bring consistency and predictability into a murky area of First Amendment law.

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

Book Review Of Current Issues In Constitutional Litigation: A Context And Practice Casebook (Carolina Academic Press 2011), Christy Whitfield

Sarah E. Ricks

This is a book review of Current Issues in Constitutional Litigation: A Context & Practice Casebook (Carolina Academic Press 2011). My perspective is unique because I have worked with and watched this casebook evolve – I was assigned an early draft of the casebook as a law school student taking a constitutional litigation course, I worked as a research assistant on a later version of the casebook, and now, several years later, I have viewed the final result of the casebook as a practicing attorney. As a former law clerk and now as an attorney advisor in the beginning years …

Tinker And The Diminution Of Public Education, Ryan Hardy

Ryan Hardy

Part I of this article discusses clothing as speech. Part II examines Tinker v. Des Moines. Part III examines the three other Supreme Court student expression cases. Part IV discusses the framework set up by the Supreme Court cases. Part IV also illustrates lower court decisions involving specific types of clothing or symbols and the confusion among those lower courts. Part V discusses the mission of public education and its relation to student expression. Part VI describes Tinker’s lasting effects on public education. Part VII explains that the Supreme Court should overrule Tinker and adopt a new standard

The Geography Of Sexuality, Yishai Blank, Issi Rosen-Zvi

Yishai Blank

Who regulates sexuality in America? Given the high salience of federal laws and policies such as the Defense of Marriage Act (DOMA) and the military’s “Don’t Ask Don’t Tell” policy, and states’ legal activism regarding same-sex marriage, it would seem that sexuality is mostly a federal and a state matter, and that cities play a secondary, if not insignificant role. This Article argues that in fact the opposite is true: the regulation of sexuality has been decentralized, with cities being the main locus where the most important issues pertaining to the lives of gays and lesbians are decided. This “localization …

The Reality Of Eu-Conformity Review In France, Juscelino F. Colares

Juscelino F. Colares

French High Courts embraced review of national legislation for conformity with EU law in different stages and following distinct approaches to EU law supremacy. This article tests whether adherence to different views on EU law supremacy has resulted in different levels of EU directive enforcement by the French High Courts. After introducing the complex French systems of statutory, treaty and constitutional review, this study explains how EU-conformity review emerged among these systems and provides an empirical analysis refuting the anecdotal view that different EU supremacy theories produce substantial differences in conformity adjudication outcomes. These Courts' uniformly high rates of EU …

Why Congress Cannot Require Major League Baseball To Implement Suspicionless Blood Testing For Performance-Enhancing Drugs, Matthew W. Kerner

Matthew W Kerner

In the United States, professional baseball is not only ingrained in the fabric of popular culture, it is big business. As of 2010, Major League Baseball (MLB) players earn annual salaries ranging from the league minimum of $400,000, to the astronomical $33 million paycheck of New York Yankees megastar, Alex Rodriguez. The average salary of an MLB player in 2010 was $3,297,828, which is more than a 65 percent increase from the average 2000 salary of $1,998,034. Meanwhile, the inflation rate in the United States has risen just 28.37 percent in the same time span. These figures do not even …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Zachary D. Clopton, Steven E. Art

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Zachary D. Clopton, Steven E. Art

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …

The Meaning Of The Seventeenth Amendment And A Century Of State Defiance, Steven E. Art, Zachary D. Clopton

Zachary D Clopton

Nearly a century ago, the Seventeenth Amendment to the U.S. Constitution worked a substantial change in American government, dictating that the people should elect their Senators by popular vote. Despite its significance, no court or commentator has explained what the Amendment means or how it works. This Article fills that void, providing the first definitive interpretation of the Seventeenth Amendment. Our account is based on a detailed textual analysis and a variety of other sources: historical and textual antecedents; relevant Supreme Court decisions; the complete debates in Congress; and the social and political factors that led to this new constitutional …