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Articles 1 - 30 of 360
Full-Text Articles in Law
Moral Limits On Morals Legislation: Lessons For U.S. Constitutional Law From The Declaration On Religious Freedom, Gregory A. Kalscheur S.J.
Moral Limits On Morals Legislation: Lessons For U.S. Constitutional Law From The Declaration On Religious Freedom, Gregory A. Kalscheur S.J.
Gregory A. Kalscheur, S.J.
A persistent American confusion regarding the proper relationship between law and morality is manifest in the opinions in Lawrence v. Texas. The Second Vatican Council’s Declaration on Religious Freedom provides the foundation for an analytical framework that can bring clarity to that confusion. The heart of this framework is the moral concept of public order. This concept offers a principled explanation of both the holding in Lawrence and the limitations the Court placed on that holding. The Court could clarify the confusion manifest in Lawrence by explicitly acknowledging that a state interest only becomes legitimate for purposes of rational basis …
Gerrymandering And The High Court, Alan E. Garfield
Gerrymandering And The High Court, Alan E. Garfield
Alan E Garfield
No abstract provided.
The Hollowness Of The Harm Principle, Steven D. Smith
The Hollowness Of The Harm Principle, Steven D. Smith
Steven D. Smith
Among the various instruments in the toolbox of liberalism, the so-called “harm principle,” presented as the central thesis of John Stuart Mill’s classic On Liberty, has been one of the most popular. The harm principle has been widely embraced and invoked in both academic and popular debate about a variety of issues ranging from obscenity to drug regulation to abortion to same-sex marriage, and its influence is discernible in legal arguments and judicial opinions as well. Despite the principle’s apparent irresistibility, this essay argues that the principle is hollow. It is an empty vessel, alluring but without any inherent legal …
Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith
Justice Douglas, Justice O'Connor, And George Orwell: Does The Constitution Compel Us To Disown Our Past, Steven D. Smith
Steven D. Smith
Justice William O. Douglas's majority opinion in Zorach v. Clauson famously asserted that "[w]e are a religious people whose institutions presuppose a Supreme Being." What did Douglas mean, and was he right? More recently, in cases involving the Ten Commandments, the Pledge of Allegiance and other public expressions and symbols, the Supreme Court has said that the Constitution prohibits government from endorsing religion. Can Douglas's "Supreme Being" assertion be reconciled with the "no endorsement" prohibition? And does the more modern doctrine demand that we forget, falsify, or forswear our pervasively religious political heritage? This essay, presented as the William O. …
The Tenuous Case For Conscience, Steven D. Smith
The Tenuous Case For Conscience, Steven D. Smith
Steven D. Smith
If there is any single theme that has provided the foundation of modern liberalism and has infused our more specific constitutional commitments to freedom of religion and freedom of speech, that theme is probably “freedom of conscience.” But some observers also perceive a progressive cheapening of conscience– even a sort of degradation. Such criticisms suggest the need for a contemporary rethinking of conscience. When we reverently invoke “conscience,” do we have any idea what we are talking about? Or are we just exploiting a venerable theme for rhetorical purposes without any clear sense of what “conscience” is or why it …
The Constitutionality Of The Patient Protection And Affordable Care Act In The Courts Of Appeals, Mel Cousins
The Constitutionality Of The Patient Protection And Affordable Care Act In The Courts Of Appeals, Mel Cousins
Mel Cousins
Having undergone an extensive process of political discussion and debate, the ACA (properly the Patient Protection and Affordable Care Act) is now under intensive legal challenge with over 20 different cases from both states and organizations and individuals having been initiated. The challengers argue that the Act lacks a constitutional basis and/or infringes on their constitutional rights. These cases involve a fascinating intersection of legal, political and policy issues and, regardless of the outcome, will have important implications for the future direction of US health care policy. There have now been four decisions of the courts of appeal on the …
Perfectly Legal To Mandate The Purchase Of Insurance, Alan E. Garfield
Perfectly Legal To Mandate The Purchase Of Insurance, Alan E. Garfield
Alan E Garfield
No abstract provided.
Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent, Doug Rendleman, Douglas Laycock
Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent, Doug Rendleman, Douglas Laycock
Scholarly Articles
Restitution may be a casualty in a collision with the constitutional law of standing. Article III is traditionally said to require an “injury in fact” for standing to be a plaintiff in federal court. Edwards, who alleges that First American paid a bribe or kickback in violation of the federal Real Estate Settlement Procedures Act, seeks to recover the statutory penalty. Defendant argues that even if it violated the Act, Edwards suffered no “injury in fact.” Our amicus brief in support of Edwards alerts the Supreme Court to the many restitutionary claims either for a wrongdoer’s profits or to set …
A Tale Told By A President, Mark A. Graber
A Tale Told By A President, Mark A. Graber
Mark Graber
Part I of this essay makes the case for symbolic politics. Presidents often have political reasons for subjecting courts to mere words. Part II makes the case for constitutional hardball.
Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller
Consensual Amorous Relationships Between Faculty And Students: The Constitutional Right To Privacy, Elisabeth A. Keller
Elisabeth Keller
Surveys of college students in the United States revealed that a significant number of students thought they had been victims of some form of sexual harassment. Growing awareness of the magnitude, dimensions, and effects of sexual harassment at educational institutions and the potential for institutional liability have prompted educators to adopt policies to avert such problems. The policies typically prohibit sexual harassment of employees and students and alert the university community to the serious effects of sexual harassment and the potential for student exploitation. Some universities have gone beyond establishing regulations directed at widely litigated problems of sexual harassment and …
Gps Tracking And The Fourth Amendment, Alan E. Garfield
Gps Tracking And The Fourth Amendment, Alan E. Garfield
Alan E Garfield
No abstract provided.
The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom
The Better Part Of Valor: The Real Id Act, Discretion, And The “Rule” Of Immigration Law, Daniel Kanstroom
Daniel Kanstroom
This article considers the problems raised by a federal law--the “REAL ID Act”--that seeks to preclude judicial review of discretionary immigration law decisions. Discretion, the flexible shock absorber of the administrative state, must be respected by our legal system. However, as Justice Felix Frankfurter once wrote, discretion is, “only to be respected when it is conscious of the traditions which surround it and of the limits which an informed conscience sets to its exercise.” The article suggests that judicial construction of the REAL ID Act will plumb the deep meaning of this qualification. The new law states, essentially, that constitutional …
A Comment On "Legisprudence", Vlad F. Perju
Cosmopolitanism And Constitutional Self-Government, Vlad F. Perju
Cosmopolitanism And Constitutional Self-Government, Vlad F. Perju
Vlad Perju
This paper, which was selected for presentation at the 2010 Yale/Stanford Junior Faculty Forum, articulates the theoretical steps by which self-government in a free community of equals leads constitutional analysis outside the boundaries of that political community. Openness to the experiences in self-government of other peoples is commonly assumed to undermine political legitimacy by loosing citizens’ control over their political fate. But is it possible that such openness might in fact render that control more effective? Could it actually enhance political and constitutional legitimacy? This paper articulates and defends the following claims: 1) The legitimacy of a political order is …
An Anthem For Ows?, Timothy Zick
In Defense Of Judicial Prudence, Nicholas Buccola, Aila Wallace
In Defense Of Judicial Prudence, Nicholas Buccola, Aila Wallace
Nicholas Buccola
This essay has two basic aims. First, we want to show that the three major theories of judicial review – majoritarianism, perfectionism, and originalism – have at their core commitments to “cardinal virtues” – temperance, justice, fortitude. In the first part of the essay, we describe each of the cardinal virtues in conjunction with a description of each judicial philosophy and demonstrate how each virtue fits at the center of each philosophy. Second, we want to show how a full appreciation of the cardinal virtues should lead us to endorse “prudentialism” as the best approach to judicial review in the …
Ows, Discourse, And Narratives, Timothy Zick
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.
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
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
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 …
Ows And The Constitution, Timothy Zick
For Carrying Into Execution The Foregoing Powers: Interpretative Theories Of The Necessary And Proper Clause In Light Of United States V. Comstock, Marianella Medelius
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
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
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 …
Harvesting New Conceptions Of Equality: Opportunity, Results, And Neutrality, Cedric M. Powell
Harvesting New Conceptions Of Equality: Opportunity, Results, And Neutrality, Cedric M. Powell
Cedric M. Powell
Our Exceptional Constitution, Timothy Zick
The Supreme Court 1974 Term: Note On Eastland V. United States Servicemen's Fund, James S. Rogers
The Supreme Court 1974 Term: Note On Eastland V. United States Servicemen's Fund, James S. Rogers
James S. Rogers
No abstract provided.
Trans-Border Exclusion And Execution, Timothy Zick
Trans-Border Exclusion And Execution, Timothy Zick
Popular Media
No abstract provided.
Church Autonomy Versus Civil Rights, Alan E. Garfield
Church Autonomy Versus Civil Rights, Alan E. Garfield
Alan E Garfield
No abstract provided.
From Barbarity To Regularity: A Case Study Of Unnecesarean Malpractice Claims, Jamie Abrams
From Barbarity To Regularity: A Case Study Of Unnecesarean Malpractice Claims, Jamie Abrams
South Carolina Law Review
No abstract provided.