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Constitutional Law

2010

Constitutional Law

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Full-Text Articles in Law

Foreword - In Memory Of Robert J. Lipkin, James May, Erin Daly, Robert Hayman Feb 2011

Foreword - In Memory Of Robert J. Lipkin, James May, Erin Daly, Robert Hayman

Robert L. Hayman

This is a foreword to a compendium of writings by our lost friend and colleague, Bobby Lipkin, collected within a special issue of the Widener Law Review. Bobby’s constitutionalism beholds and celebrates that "no constitutional truths emanate from either politically unaccountable" courts or from paradigmatically imperfect constitutional legal theories. Rather, Bobby’s constitutionalism was participatory and justificatory: it derives from the Constitution’s republican democracy. The Constitution means what We the People allow it to mean at constitutional inflection points in our nation’s history. We miss Bobby dearly.


Foreword - In Memory Of Robert J. Lipkin, James May, Erin Daly, Robert Hayman Feb 2011

Foreword - In Memory Of Robert J. Lipkin, James May, Erin Daly, Robert Hayman

Erin Daly

This is a foreword to a compendium of writings by our lost friend and colleague, Bobby Lipkin, collected within a special issue of the Widener Law Review. Bobby’s constitutionalism beholds and celebrates that "no constitutional truths emanate from either politically unaccountable" courts or from paradigmatically imperfect constitutional legal theories. Rather, Bobby’s constitutionalism was participatory and justificatory: it derives from the Constitution’s republican democracy. The Constitution means what We the People allow it to mean at constitutional inflection points in our nation’s history. We miss Bobby dearly.


Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen R. Kaufman, Martin A. Schwartz Dec 2010

Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen R. Kaufman, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.


Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen R. Kaufman, Martin A. Schwartz Dec 2010

Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen R. Kaufman, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.


Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen R. Kaufman, Martin A. Schwartz Dec 2010

Civil Rights In Transition: Sections 1981 And 1982 Cover Discrimination On The Basis Of Ancestry And Ethnicity, Eileen R. Kaufman, Martin A. Schwartz

Eileen Kaufman

No abstract provided.


In Efforts To Regulate Immigration, States Test Limits Of Their Authority, Alan E. Garfield Dec 2010

In Efforts To Regulate Immigration, States Test Limits Of Their Authority, Alan E. Garfield

Alan E Garfield

No abstract provided.


Thurgood Marshall, The Race Man, And Gender Equality In The Courts, Taunya Banks Dec 2010

Thurgood Marshall, The Race Man, And Gender Equality In The Courts, Taunya Banks

Taunya Lovell Banks

Renowned civil rights advocate and race man Thurgood Marshall came of age as a lawyer during the black protest movement in the 1930s. He represented civil rights protesters, albeit reluctantly, but was ambivalent about post-Brown mass protests. Although Marshall recognized law's limitations, he felt more comfortable using litigation as a tool for social change. His experiences as a legal advocate for racial equality influenced his thinking as a judge. Marshall joined the United States Supreme Court in 1967, as dramatic advancement of black civil rights through litigation waned. Other social movements, notably the women's rights movement, took its ...


Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progressive Originalism, Dale E. Ho Dec 2010

Dodging A Bullet: Mcdonald V. City Of Chicago And The Limits Of Progressive Originalism, Dale E. Ho

Dale E Ho

The Supreme Court’s decision in last term’s gun rights case, McDonald v. City of Chicago, punctured the conventional wisdom after District of Columbia v. Heller that “we are all originalists now.” Surprisingly, many progressive academics were disappointed. For “progressive originalists,” McDonald was a missed opportunity to overrule the Slaughter-House Cases and to revitalize the Privileges or Immunities Clause of the Fourteenth Amendment. In their view, such a ruling could have realigned progressive constitutional achievements with originalism and relieved progressives of the albatross of substantive due process, while also unlocking long-dormant constitutional text to serve as the source of ...


A Comment On Costs In Constitutional Cases, Iain Field Nov 2010

A Comment On Costs In Constitutional Cases, Iain Field

Iain Field

Professor Patrick Keyzer and Stephen Lloyd SC are both well qualified to speak to the legal principles that govern the determination of costs in constitutional cases, and I am, with respect, happy to accept their combined review of these principles. I do not think that there are any significant disagreements between them in this regard. They have, nevertheless, provided us with two usefully distinct perspectives on the topic, and offered two contrasting views as to the need for special costs rules in constitutional cases. I have only a small number of observations (perhaps it is better to say questions), which ...


Lawmakers As Lawbreakers, Ittai Bar-Siman-Tov Nov 2010

Lawmakers As Lawbreakers, Ittai Bar-Siman-Tov

Dr. Ittai Bar-Siman-Tov

How would Congress act in a world without judicial review? Canlawmakers be trusted to police themselves? This Article examinesCongress’s capacity and incentives to enforce upon itself “the law ofcongressional lawmaking”—a largely overlooked body of law that iscompletely insulated from judicial enforcement. The Article exploresthe political safeguards that may motivate lawmakers to engage inself-policing and rule-following behavior. It identifies the majorpolitical safeguards that can be garnered from the relevant legal,political science, political economy, and social psychology scholarship,and evaluates each safeguard by drawing on a combination oftheoretical, empirical, and descriptive studies about Congress. TheArticle’s main argument is ...


Models Of Religious Freedom, Marcel Stuessi Swiss Human Rights Lawyer Nov 2010

Models Of Religious Freedom, Marcel Stuessi Swiss Human Rights Lawyer

Marcel Stüssi

MODELS OF RELIGIOUS FREEDOM

The Swiss, US American, and Syrian models are in this thesis illustrated by way of three representations. The Analytical Representation comprises more than statements of posi-tive law or mechanical comparison. Each chapter is introduced by thought-forms predominant in the respective legal culture. The objective of the Methodological Representation is to investigate the logic and legitimate pattern by which the Swiss and US American judiciary meth-odologically come to the conclusion that an alleged governmental inter-ference is covered under the right to religious freedom. The last dimen-sion, which is the Eclectic Representation, pursues a dual aim. Firstly, the ...


Constitutional Law, James E. Leahy Nov 2010

Constitutional Law, James E. Leahy

Cal Law Trends and Developments

This was a year in which the reviewing courts in California were confronted with contemporary problems of constitutional law.


Constitutional Law, James E. Leahy Nov 2010

Constitutional Law, James E. Leahy

Cal Law Trends and Developments

This was an eventful year in the field of constitutional law. The court upheld the right of individuals to distribute antiwar literature within a railway station, struck down an injunction prohibiting county employees from peaceful picketing, upheld an ordinance punishing conduct which urges a riot or which urges others to commit acts of force or violence, and held the California loyalty oath unconstitutional.


Don't Be So Quick To Ban Violent Videogames, Alan E. Garfield Nov 2010

Don't Be So Quick To Ban Violent Videogames, Alan E. Garfield

Alan E Garfield

No abstract provided.


Ghostwriting: Filling In The Gaps Of Pro Se Prisoners’ Access To The Courts, Ira P. Robbins Oct 2010

Ghostwriting: Filling In The Gaps Of Pro Se Prisoners’ Access To The Courts, Ira P. Robbins

Ira P. Robbins

Compared with other litigants, pro se prisoners are at an inherent disadvantage when they try to vindicate their rights. They lack many of the resources enjoyed by non-prisoner litigants. They have limited finances and limited access to legal-research materials. Even if they had such access, their illiteracy would lessen its effectiveness. Moreover, many attorneys are unwilling or unable to undertake full representation of prisoner litigants. As a result, pro se prisoners struggle to navigate the complex legal system, often losing their cases on procedural grounds before ever reaching a decision on the merits. This Article argues that, in order to ...


Lessons From Hurricane Katrina: Prison Emergency Preparedness As A Constitutional Imperative, Ira P. Robbins Oct 2010

Lessons From Hurricane Katrina: Prison Emergency Preparedness As A Constitutional Imperative, Ira P. Robbins

Ira P. Robbins

Hurricane Katrina was one of the worst natural disasters ever to strike the United States, in terms of casualties, suffering, and financial cost. Often overlooked among Katrina's victims are the 8,000 inmates who were incarcerated at Orleans Parish Prison (OPP) when Katrina struck. Despite a mandatory evacuation of New Orleans, these men and women, some of whom had been held on charges as insignificant as public intoxication, remained in the jail as the hurricane hit, and endured days of rising, toxic waters, a lack of food and drinking water, and a complete breakdown of order within OPP. When ...


A Sword And A Shield: The Uses Of Law In The Bush Administration, Mary L. Dudziak Oct 2010

A Sword And A Shield: The Uses Of Law In The Bush Administration, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

The Bush administration has been criticized for departures from the rule of law, but within the administration law was not ignored. Instead it was seen variously as a tool and as a potential threat to the operation of the executive branch. Two narratives compete for attention. In an era when the legality of torture was openly debated, the deployment of law in wartime seemed the most immediate issue. At the same time, however, a decades-long conservative movement to change American law was both significantly furthered and complicated, as Supreme Court appointments moved the Court to the right, but the lack ...


Hate Funeral Protests? Then Ignore Them, Alan E. Garfield Oct 2010

Hate Funeral Protests? Then Ignore Them, Alan E. Garfield

Alan E Garfield

No abstract provided.


Patriotism For Profit And Persuasion: The Trademark, Free Speech, And Governance Problems With Protection Of Governmental Marks In The United States, Malla Pollack Oct 2010

Patriotism For Profit And Persuasion: The Trademark, Free Speech, And Governance Problems With Protection Of Governmental Marks In The United States, Malla Pollack

Malla Pollack

“Governmental marks” are words or phrases which involve the identity of a social group that is partly defined in terms of its citizenship in a government-institution. The power to name a social group (especially one from which exit is difficult) confers enormous power over the group’s members. Legally classifying such words as trademarks commodifies them, increasing the namer’s power: both by giving the word monetary value and by providing the mark-holder with the legal right to prevent others from manipulating the word’s meaning.

Destination marketing employing governmental marks has become ubiquitous. The municipal governments of both New ...


A New Clear And Present Danger: Security, Freedom And Ordered Liberty On The Home Front During The War Against Terrorism, Beau James Brock Sep 2010

A New Clear And Present Danger: Security, Freedom And Ordered Liberty On The Home Front During The War Against Terrorism, Beau James Brock

Beau James Brock

Regardless of the foreign policy rationalizations for failing to respond to Osama Bin Laden’s declaration of war against the United States prior to September 11th, we are faced with a de facto state of war, for over a full decade now, that will require an ever vigilant and determined commitment in order to secure the domestic security of our land. The use of available technology to break through our opponents’ intelligence networks has been a vital instrument of victory in past wars and will be in this struggle we now face. But, where is the line marking appropriate federal ...


Section 7: Individual Rights, Institute Of Bill Of Rights Law At The William & Mary Law School Sep 2010

Section 7: Individual Rights, Institute Of Bill Of Rights Law At The William & Mary Law School

Supreme Court Preview

No abstract provided.


Balanced Budget Amendment Is Dangerous Gimmick, Not Solution, Nathan B. Oman Sep 2010

Balanced Budget Amendment Is Dangerous Gimmick, Not Solution, Nathan B. Oman

Popular Media

No abstract provided.


A Modest Appeal For Decent Respect, Jessica Olive, David C. Gray Sep 2010

A Modest Appeal For Decent Respect, Jessica Olive, David C. Gray

David C. Gray

In Graham v. Florida, the Supreme Court held that the Eighth Amendment prohibits imposing a sentence of life in prison without the possibility of release for nonhomicide crimes if the perpetrator was under the age of eighteen at the time of his offense. In so holding, Justice Kennedy cited foreign and international law to confirm the Court’s independent judgment. In his dissent, Justice Thomas recited now-familiar objections to the Court’s reliance on these sources. Those objections are grounded in his originalist jurisprudence. In this short invited essay, which expands on prior work, we argue that Justice Thomas should ...


Rights Bring Responsibility: Clear Constitutional Protections May Be Only The Beginning Of The Discussion, Alan E. Garfield Sep 2010

Rights Bring Responsibility: Clear Constitutional Protections May Be Only The Beginning Of The Discussion, Alan E. Garfield

Alan E Garfield

No abstract provided.


Unlimited War And Social Change: Unpacking The Cold War's Impact, Mary L. Dudziak Sep 2010

Unlimited War And Social Change: Unpacking The Cold War's Impact, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This paper is a draft chapter of a short book critically examining the way assumptions about the temporality of war inform American legal and political thought. In earlier work, I show that a set of ideas about time are a feature of the way we think about war. Historical progression is thought to consist in movement from one kind of time to another (from wartime to peacetime, to wartime, etc.). Wartime is thought of as an exception to normal life, inevitably followed by peacetime. Scholars who study the impact of war on American law and politics tend to work within ...


A Criminal Justice System That Works, Alan E. Garfield Sep 2010

A Criminal Justice System That Works, Alan E. Garfield

Alan E Garfield

No abstract provided.


The Great American Public, Mass Society, And The New Constitutional Order, Richard C. Boldt Sep 2010

The Great American Public, Mass Society, And The New Constitutional Order, Richard C. Boldt

Richard C. Boldt

No abstract provided.


Salazar V. Buono: Sacred Symbolism And The Secular State, Ian C. Bartrum Sep 2010

Salazar V. Buono: Sacred Symbolism And The Secular State, Ian C. Bartrum

Ian C Bartrum

This short piece discusses some doctrinal and theoretical implications of the Court's recent decision.


Foreword: Our Paradoxical Religion Clauses, Mark A. Graber Aug 2010

Foreword: Our Paradoxical Religion Clauses, Mark A. Graber

Mark Graber

No abstract provided.


Just Say No: Birth Control In The Connecticut Supreme Court Before Griswold V. Connecticut, Mary L. Dudziak Jul 2010

Just Say No: Birth Control In The Connecticut Supreme Court Before Griswold V. Connecticut, Mary L. Dudziak

University of Southern California Legal Studies Working Paper Series

This essay examines the right to use birth control in Connecticut before Griswold v. Connecticut (1965). It is often assumed that the Connecticut birth control ban was not enforced, and consequently did not affect access to birth control in the state. Accordingly, the cases challenging the state statute have been viewed as not real cases or controversies deserving of court attention. This essay demonstrates that this view is erroneous. Connecticut law was enforced against the personnel of birth control clinics for aiding and abetting the use of contraceptives. Enforcement of the statute against those working in clinics kept birth control ...