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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.


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 ...


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 ...


Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2010 Ed.), Garrett Power Jul 2010

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2010 Ed.), Garrett Power

Garrett Power

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland School of Law. It is an “open content” casebook intended for classroom use in courses in Land Use Control, Environmental Law and Constitutional Law. It consists of cases carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. It considers both the personal right to liberty and the personal right in property. The text consists of non-copyrighted material and readers are free to use it or re-mix ...


Concurring In Part & Concurring In The Confusion, Sonja West May 2010

Concurring In Part & Concurring In The Confusion, Sonja West

Sonja R. West

When a federal appellate court decided last year that two reporters must either reveal their confidential sources to a grand jury or face jail time, the court did not hesitate in relying on the majority opinion in the Supreme Court's sole comment on the reporter's privilege--Branzburg v. Hayes. "The Highest Court has spoken and never revisited the question. Without doubt, that is the end of the matter," Judge Sentelle wrote for the three-judge panel on the Circuit Court of Appeals for the District of Columbia. By this declaration, the court dismissed with a wave of its judicial hand ...


Book Review Of Beau Breslin, "From Words To Worlds: Exploring Constitutional Functionality", Robert Tsai Dec 2009

Book Review Of Beau Breslin, "From Words To Worlds: Exploring Constitutional Functionality", Robert Tsai

Robert L Tsai

This is a review of Beau Breslin's book, "From Words to Worlds: Exploring Constitutional Functionality" (Johns Hopkins, 2009). As an antidote to what he believes to be scholarly marginalization of the "unique" aspects of a written constitution, Breslin focuses attention on seven functions of such a legal text: transforming existing orders, conveying collective aspirations, designing institutions, mediating conflict, recognizing claims of subnational communities, empowering social actors, and constraining governmental authority. This review briefly critiques Breslin's functional approach and discusses two of the more pressing goals of modern constitutionalism: managing social conflict and preserving cultural heritage.


Immigrant Workers And The Thirteenth Amendment, Maria Ontiveros Dec 2009

Immigrant Workers And The Thirteenth Amendment, Maria Ontiveros

Maria L. Ontiveros

This chapter examines the treatment of immigrant workers through the lens of the Thirteenth Amendment. It examines how the intersection of labor and immigration laws impact immigrant workers in general, "guest workers" and undocumented immigrants. It argues that immigrant workers can be seen as a caste of nonwhite workers laboring beneath the floor for free labor in ways which violate the Thirteenth Amendment. Further, it suggests ways in which immigrant workers can use the Thirteenth Amendment to improve their situation and offers an analysis of how the Thirteenth Amendment can form a bridge for organizing between labor, civil rights, immigration ...


John Brown's Constitution, Robert Tsai Dec 2009

John Brown's Constitution, Robert Tsai

Robert L Tsai

It will surprise many Americans to learn that before John Brown and his men briefly captured Harper’s Ferry, they authored and ratified a Provisional Constitution. This deliberative act built upon the achievements of the group to establish a Free Kansas, during which time Brown penned an analogue to the Declaration of Independence. These acts of writing, coupled with Brown’s trial tactics after his arrest, cast doubts on claims that the man was a lunatic or on a suicide mission. Instead, they suggest that John Brown aimed to be a radical statesman, one who turned to extreme tactics but ...


Calibrating Copyright Statutory Damages To Promote Speech, Alan Garfield Dec 2009

Calibrating Copyright Statutory Damages To Promote Speech, Alan Garfield

Alan E Garfield

Copyright and the First Amendment exist in tension. The Supreme Court acknowledges this tension but says that copyright law resolves it with two built-in free speech safeguards: (1) by protecting only the expression of ideas and not the ideas themselves (the idea/expression dichotomy); and (2) by allowing the use of expression under certain circumstances (the fair use doctrine). The problem is that these doctrines are notoriously vague, so users often cannot know ex ante whether their uses will be immune from liability. This unpredictably might be tolerable if users could be confident that, if they were subject to liability ...


The Inherent Structure Of Free Speech Law, Joshua Davis, Joshua Dec 2009

The Inherent Structure Of Free Speech Law, Joshua Davis, Joshua

Joshua P. Davis

To date no one has discovered a set of organizing principles for free speech doctrine, an area of the law that has been criticized as complex, ad hoc, and even incoherent. We provide a framework that distills free speech law down to three judgments: the first about the role of government; the second about the target of government regulation; and the third a constrained cost-benefit analysis. The framework can be summarized by three propositions: first, the Constitution constrains government if it regulates private speech, but not if government speaks, sponsors speech, or restricts expression in managing an internal governmental function ...