Law Commons^™

Eminent Need: Proposing A Market Participation Exception For Municipal Parker Immunity, Scott B. Weese

Scott B Weese

A township is using its eminent domain powers to become a monopsony in the real estate market for the designated area. That township’s monopsony power is then being exploited to create a price-fixing scheme that would violate antitrust laws, either as a per se violation under § 1 of the Sherman Antitrust Act, or as a monopolizing or attempted monopolizing offense under § 2. Under the Sherman Act, effected residents could force the township to appraise each property individually and pay the full market value; if the township refused, they would be subject to the treble damage penalty, erasing any …

The Senate Filibuster: The Politics Of Destruction, Emmet J. Bondurant

Emmet J Bondurant

The notion that the Framers of the Constitution intended to allow a minority in the U.S. Senate to exercise a veto power over legislation and presidential appointments is not only profoundly undemocratic, it is also a myth. The overwhelming trend of law review articles have assumed that because the Constitution grants to each house the power to make its own rules, the Senate filibuster rule is immune from constitutional attack. This Article takes an opposite position based on the often overlooked history of the filibuster, the text of the Constitution and the relevant court precedents which demonstrate that the constitutionality …

Why Wait Until The Crime Happens? Providing For The Involuntary Commitment Of Dangerous Individuals Without Requiring A Showing Of Mental Illness, Adam Lamparello

Adam Lamparello

No abstract provided.

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 new unenumerated …

Junior Bar Law Review 1 (2010), 21-40 Judicial Activism Revisited: Reflecting On The Role Of Judges In Enforcing Economic, Social And Cultural Rights, Gehan D. Gunatilleke Mr.

Gehan D Gunatilleke Mr.

Following the conclusion of military operations in Sri Lanka in 2009, the issue of economic development and distributive justice appears to have remerged on the country’s agenda. Within this post-conflict context, the judiciary in Sri Lanka is confronted with a major challenge in terms of defining its proper role in the promotion of Economic Social and Cultural (“ESC”) rights. The precise extent to which judges should be ‘activist’ in promoting these rights should be contrasted with the level of activism required of judges in the sphere of civil and political rights. Advocating ESC rights in Sri Lanka simply cannot be …

When Juveniles Face Questioning, Tamar R. Birckhead

Tamar R Birckhead

This op-ed argues that the age of a suspect should be considered when evaluating whether the questioning was custodial, thereby triggering the right to Miranda warnings.

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 …

Whether Foreigner Or Alien: A New Look At The Original Language Of The Alien Tort Statute, M. Anderson Berry

M. Anderson Berry

Until now, the word that puts the ‘A’ in ATS has been completely overlooked. No court or commentator has delved in to the 1789 meaning of “alien,” or to the drafters' understanding of and possible intentions behind that word.

In the Supreme Court’s only opinion regarding the Alien Tort Statute, Sosa v. Alvarez-Machain, the Court unanimously agreed that although the first House of Representatives modified the Senate’s draft of what eventually became the Judiciary Act of 1789, it made hardly any changes to the provisions on aliens, including what became the ATS. The Court did not point out any of …

Can The Federal Reserve Adopt An Inflation Targeting Regime Under The Current Statutory Arrangements?, Hong Kyoon Cho

Hong Kyoon Cho

This paper discussed legal perspectives in institutional framework of central banking, keyed to monetary policy framework. The statutory objectives of monetary policy provide an environment under which the central bank can design its monetary policy framework, in that the choice of the monetary policy framework could lie within the scope of the spirits embodied in the statutory objectives of monetary policy. Monetary policy framework could illuminate legal aspects of debate, as specifically seen in the Federal Reserve’s case that has adopted not an explicit but an implicit monetary policy framework, namely the Just-Do-It approach. Under the current legal mandate, i.e., …

Snyder V. Phelps & The Supreme Court's Speech-Tort Jurisprudence: A Prediction, Deana Ann Pollard Sacks

Deana A Pollard

In Snyder v. Phelps, members of the Westboro Baptist Church targeted a young marine’s untimely death to exemplify their hate-filled message to the world that “God Hates Fags” and retaliates against America for tolerating homosexuality by killing American soldiers. A jury awarded the marine’s father $10.9 million for invasion of privacy and emotional distress after the church members disseminated extremely hateful and personalized attacks against the fallen marine’s family. The Supreme Court is reviewing the case to determine whether civil liability based on invasive, hate-filled, injurious speech violates the First Amendment. In New York Times v. Sullivan, the Supreme Court …

Sexual Reorientation, Elizabeth M. Glazer

Elizabeth M Glazer

Bisexuals have been invisible for at least ten years. Ten years ago, Kenji Yoshino wrote about the “epistemic contract of bisexual erasure,” the tacit agreement between both homosexuals and heterosexuals to erase bisexuals. Though legal scholarship has addressed bisexuality only in rare moments, Yoshino’s epistemic contract of erasure answered Ruth Colker’s earlier call for a “bi jurisprudence” and explained why the “vast and vastly unacknowledged wall between heterosexual and homosexual identities” that Naomi Mezey identified has been so “vigilantly maintained.” While the tenth anniversary of the publication of Yoshino’s article is reason enough to revisit the topic of bisexual erasure, …

The Bible And The Constitution, Brad Jacob

Robert Weston Ash

ABSTRACT

The Bible and the Constitution Prof. Bradley P. Jacob

Is the United States Constitution consistent with the Holy Bible? For many people today, and especially for most lawyers, legal scholars and judges, the question is both irrelevant and silly. Their answer would be a simple, “Who cares?”

Yet there are some – Christian judges, lawyers and legal scholars – for whom the question matters a great deal. It matters to anyone who follows the tradition of Thomas Aquinas, William Blackstone, and Martin Luther King, Jr., in holding that a human law that violates God’s eternal principles of justice is …

The Kinston Ruling: Black Preferred Candidates And The Meaning Of The 15th Amendment, Brandon F. Douglass

Brandon F Douglass

Since the 1960s, section five of the Voting Rights Act requires covered jurisdictions to seek preclearance before making certain changes to their political structure. Recently, the United States Department of Justice ruled that Kinston, North Carolina’s attempt at removing partisan labels from its ballots for municipal posts violated section five of the Voting Rights Act, based on the premise that absent a partisan cue, Kinston’s African-American voters will not be able to elect their candidate of choice. This paper presents a summary of the preclearance process and an analysis of the Department’s ruling regarding Kinston’s attempt at removing the partisan …

This Is A Big @&%#*^! [Political Question] Deal!”, Ryan H. James

Ryan H. James

No abstract provided.

Non-Compactness And Voter Exchange; Towards A Constitutional Cure For Gerrymandering, Shlomo Angel

Shlomo Angel

No abstract provided.

Escaping Legal Limbo: Can Illinois Residents Who Entered Into A Legally Recognized Same-Sex Marriage Or Civil Union In Another State Dissolve Their Marriage In Illinois?, Michelle R. Green, Allen Wall, Jacob H. Karaca, Melissa Sereda

Michelle R. Green

Legal limbo: when a same-sex couple in a valid, legally performed marriage performed in a jurisdiction that recognizes such marriages wants to dissolve their marriage, but now lives in a jurisdiction that refuses to recognize their marriage as valid. This article explores the options available to such couples in Illinois and provides a practical roadmap for practitioners that we think provides the best chance of success for their clients seeking to dissolve a same-sex union.

While Illinois courts have not yet determined whether such a couple may lawfully dissolve their marriage in Illinois, many lessons can be gleaned from other …

Dennis The Menace?: An Analysis Of Whether The Episcopal Church’S Dennis Canon Entitles The Church To An Exemption From Neutral Trust Law, Robert W. Humphrey Ii

Robert W Humphrey II

In 1979, the Episcopal Church amended its canons to include a provision whereby all dioceses and local churches agreed to hold their property in trust for the national church. The Dennis Canon, as it is known, was a response to a schism within the church and an attempt by the church to preserve real property owned by local churches. Many courts construing the effect of the Dennis Canon have found it applies even when common law trust principles would provide otherwise. However, the Supreme Court of South Carolina recently refused to give effect to it, stating it has “no legal …

Smt. Selvi And Ors. Versus State Of Karnataka: Case Note, Vivek Jain

vivek jain

No abstract provided.

Iran’S “New Constitutionalism”: Constitutional Politics In Post-Revolutionary Iran, Kambiz Behi

Kambiz Behi

This Article argues that the Iranian constitutional system, although distinctive in application and in jurisprudence, is structurally and functionally similar to a set of rapidly globalizing forms of constitutional arrangement. These similarities include, in the main, legal institutions, legal thought, and methods of jurisprudence. In particular, I argue that the post-1989 constitutional reforms in Iran incorporate a globalizing constitutional mode of legal arrangement marked by proportionality analysis and judicial interventionism at the expense of representative politics. The Article also aims to make a contribution to the methodology of legal analysis by applying a Critical approach to the study of a …

No Place To Hide: First Amendment Protection For Geolocation Privacy, Theodore F. Claypoole

Theodore F Claypoole

The article analyzes the conflict between established Constitutional rights and evaporating privacy, by exploring technological changes that threaten anonymity and examining the First Amendment rights to be anonymous in association and speech.

Women And Pornography: The Reasons, The Benefits And The Risks, Guy Kochlani

Guy Kochlani

This Article examines the reasons why women enter the porn industry, the benefits of joining it and its risks. Specifically, this Article concentrates on the five major reasons why women enter the porn industry: 1) physical/sexual/mental abuse (reasons for building self-confidence and feeling important); 2) financial (last resort to earn money in a short time frame or building a business empire); 3) fame (believes that this is a stepping stone into Hollywood); 4) nymphomania (sexual addiction); and 5) human trafficking (forced in becoming a sex slave). In addition, this Article will lay out the benefits of entering such an industry, …

The Fiduciary Theory Of Governmental Legitimacy And The Natural Charter Of The Judiciary, Luke A. Wake

Luke A. Wake

In legal academia, there are various claims as to the proper role of the courts and the standard of review to be employed in evaluating claims of right. These competing judicial philosophies have been the subject of great debate in recent years. Yet underlying these debates is the question of rights and whether men are entitled, in justice, to assurances of personal autonomy, or whether the concept of rights is a mere legal fiction.

In a recent article in the Journal of Law and Philosophy, Evan Fox-Decent argues that individuals are entitled, at a minimum, to certain guarantees of bodily …

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 York City and …

Completing Ely's Representation Reinforcing Theory Of Judicial Review By Accounting For The Constitutional Values Of State Citizenship, Shane Pennington

Shane Pennington

John Hart Ely famously proposed a representation reinforcing theory of judicial review. Ely said that the Constitution embodies certain procedural principles that make the ideal of American representative democracy possible. Thus, where courts find that the political process has broken down, putting that republican goal out of reach, they must step in and exercise judicial review to correct for the procedural breakdown and to reinforce the representational principles the Constitution embodies.

Whether Ely’s theory is constructed on a foundation of sand or stone depends—to a large extent—on the rigor of his conception of “American representative democracy,” which he gleans largely …

Takings By Regulation: How Should Courts Weigh The Balancing Factors?, David Crump

David Crump

The Fifth Amendment to the Constitution provides that private property may not be taken without just compensation. But the Takings Clause does not provide much guidance to a court that is struggling to decide in a given case whether the facts before it amount to a taking. In Penn Central Transportation Company v. New York, the Supreme Court said that an ad hoc balancing test was to be the general approach to a regulatory takings case. The Court did not tell us how the factors were to be weighed, and in fact it left some of the balancing factors themselves …

The Thirteenth Amendment As A Model For Revolution, Sandra L. Rierson

Sandra L Rierson

To date, the United States has experienced only a handful of successful revolutionary movements. The first was the American Revolution itself. Although the original colonies’ war of independence and the resulting creation of a democratic republic was assuredly a revolution, it was incomplete in at least one major respect: it failed to resolve the fundamental conflict between the aspiration of freedom and the reality of slavery. Moreover, the bargains made and compromises struck at the time of the Revolution and as embodied within the Constitution neither encouraged nor enabled a course of gradual abolitionism, as the Founders purportedly hoped. Instead, …

Tax Lawyers, Tax Defiance, And The Ethics Of Casual Conversation, Michael Hatfield

Michael Hatfield

Tax Lawyers, Tax Defiance, and the Ethics of Casual Conversation Tax lawyers routinely navigate politically-charged waters when a tax topic is dropped into conversation. Increasingly, however, tax lawyers are confronted with comments that undermine the authority of the federal tax system itself. These comments may take several forms, including arguments that the income tax is unconstitutional. Regardless of form, this rhetoric differs from legitimate criticisms of the tax system because it encourages non-compliance as either a moral right or a political good . In the current environment, the tax bar should take up the call to be public educators with …

A Framework To Apply The Article Iii Case Or Controversy Requirement To Motions To Confirm Or Vacate Arbitral Awards Pursuant To The Federal Arbitration Act, Aaron Franklin

Aaron Franklin

Arbitration is an important method of dispute resolution but it requires courts that can confirm or vacate arbitral awards. When parties move to confirm or vacate these awards, federal courts largely ignore the Article III case or controversy requirement’s role as a limit on their power. Applying this requirement is not as simple as it sounds, and courts have little guidance in doing so. This Article therefore provides a framework that resolves two problems. First, motions to confirm or vacate arbitral awards always involve an underlying dispute (the dispute that necessitated arbitration) and a dispute about whether to grant the …

Déjà Vu: From Comic Books To Video Games: Legislative Reliance On “Soft Science” To Protect Against Uncertain Societal Harm Linked To Violence V. The First Amendment, Terri R. Day, Ryan C.W. Hall M.D.

Terri R. Day

This article discusses the weaknesses and limitations of social science evidence to prove that the virtual world of violent video games causes any real world harm. The Supreme Court, in its next term, will consider the constitutionality of California’s ban on the sale and rental of violent video games to minors. The controversy on violent video games is the latest legislative attempt to ban access and distribution of violent materials to children, reminiscent of the comic books debate over sixty years ago. This paper goes beyond a discussion of the First Amendment obstacles to violent video game restrictions. It focuses …

Delegated Decree Authority In Contemporary South America: Comparative Study Of The Radical Left And Their Threat To The Rule Of Law, Kerry Mohan

Kerry Mohan

International attention regarding Executive decree authority within Latin America has significantly increased following Hugo Chávez’ 2007 enabling law in Venezuela. This attention has largely been negative, as the international media has often vilified Chávez for promulgating decrees with the force of law. What the international media has continually failed to discuss, however, is that Chávez’ form of decree authority, “delegated decree authority” or “DDA,” has been common throughout Venezuela’s history and most of South America. This article seeks to determine DDA’s prevalence within South America, and in particular Venezuela, Ecuador, and Colombia, and determine whether DDA poses a threat to …