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Articles 1 - 30 of 148
Full-Text Articles in Law
Foreword - In Memory Of Robert J. Lipkin, James May, Erin Daly, Robert Hayman
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
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 Developments, Martin A. Schwartz
Civil Rights Developments, 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
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 Developments, Martin A. Schwartz
Civil Rights Developments, 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
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
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
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
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 place. The …
A Comment On Costs In Constitutional Cases, Iain Field
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
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 that the political safeguards that …
George Washington And The Executive Power, John C. Yoo
George Washington And The Executive Power, John C. Yoo
John C Yoo
This paper examines current debates over the scope of presidential power through the lens of the Washington administration. We tend to treat Washington’s decisions with an air of inevitability, but the constitutional text left more questions about the executive unanswered than answered. Washington filled these gaps with a number of foundational decisions - several on a par with those made during the writing and ratification of the Constitution itself. He was a republican before he was a Federalist, but ultimately Washington favored an energetic, independent executive, even at the cost of political harmony. He centralized decision-making in his office, so …
Justice Kennedy's Most Important Constitutional Opinions, Randall Kelso, Charles Kelso
Justice Kennedy's Most Important Constitutional Opinions, Randall Kelso, Charles Kelso
Randall Kelso
Abstract for Kelso & Kelso, Justice Kennedy’s Most Important Constitutional Opinions In this article, we have undertaken to evaluate Justice Kennedy’s majority, concurring, and dissenting opinions in terms of their importance for society and the law. We have found no single criteria by which to assess importance. Instead, we have used a balancing system whose elements are: (1) how many people are likely to be affected over time; (2) how important are the competing interests to individuals, society, or government; (3) how much impact is the opinion likely to have on the development of constitutional law; and (4) what effect …
Don't Be So Quick To Ban Violent Videogames, Alan E. Garfield
Don't Be So Quick To Ban Violent Videogames, Alan E. Garfield
Alan E Garfield
No abstract provided.
The Patient Protection And Affordable Care Act And Constitutional Challenges, Mel Cousins
The Patient Protection And Affordable Care Act And Constitutional Challenges, Mel Cousins
Mel Cousins
Having undergone an extensive process of political discussion and debate, the Health Care Reform Act (properly the Patient Protection and Affordable Care Act) is now under intensive legal challenge with at least 20 different cases from both states and organizations and individuals currently under way. Although this litigation is at an early stage, there has already been considerable academic (and other) interest with a number of websites tracking the development of the litigation and providing links to the considerable commentary which has already been developed (albeit much of it inevitably speculative in nature). There have now been five substantive rulings …
The Defense Of Marriage Act (Doma), Equal Protection And State Authority – Gill V Office Of Personnel Management And Commonwealth Of Massachusetts V United States Dept Of Health And Human Services, Mel Cousins
Mel Cousins
The issue of the recognition of same-sex marriages and the constitutionality of a refusal to recognize such marriages has received considerable attention in the US state courts in the last decade. A number of state courts have ruled that, state constitutions require the recognition of same-sex marriages. However, relatively few cases had reached the federal courts and in almost all these cases the restrictions had been upheld. However, two recent challenges to a ban on same-sex marriages in California (Proposition 8) and restrictions of the rights of same-sex couples under federal law (DOMA) have now been successful before federal district …
Arizona V. Gant And Its Impact On Search And Seizure Law And Vehicle Searches, Michael Gizzi, R Curtis
Arizona V. Gant And Its Impact On Search And Seizure Law And Vehicle Searches, Michael Gizzi, R Curtis
Michael C Gizzi
The decision in Arizona v. Gant, handed down in April of 2009, was a surprise for law enforcement and Supreme Court observers alike. For law enforcement, it took away their unfettered discretion to search a car anytime they engaged in a routine traffic stop, which was a commonly used tool for drug interdiction and combating gangs. For Court observers, it not only was a rare decision to suppress evidence in a Fourth Amendment case but it also presented an unusual line up of justices. This study considers the implications of Gant both for law enforcement and for observers of the …
Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi
Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment's Protections Against Unreasonable Search And Seizure, Hariqbal Basi
Hariqbal Basi
Abstract- For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order …
Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment’S Protections Against Unreasonable Searches And Seizures, Hariqbal Basi
Excluding Exclusion: How Herring Jeopardizes The Fourth Amendment’S Protections Against Unreasonable Searches And Seizures, Hariqbal Basi
Hariqbal Basi
Abstract- For nearly a half-century, the exclusionary rule has remained an important mechanism for ensuring police compliance with the Fourth Amendment and deterring unconstitutional searches and seizures. In January 2009, the Supreme Court held in Herring v. United States that the exclusionary rule does not apply to good faith negligent police behavior. This significantly broadened the law, and severely limits the future application of the exclusionary rule. Furthermore, this holding has strong potential for abuse by police departments. By analogizing to Fifth Amendment jurisprudence and Miranda rights, I argue that the ruling in Herring needs to be limited in order …
Ghostwriting: Filling In The Gaps Of Pro Se Prisoners’ Access To The Courts, Ira P. Robbins
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
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 the inmates …
Hate Funeral Protests? Then Ignore Them, Alan E. Garfield
Hate Funeral Protests? Then Ignore Them, Alan E. Garfield
Alan E Garfield
No abstract provided.
Social Security, Modes Of Communication For Blind And Visually Impaired Persons And The Rehabilitation Act – American Council Of The Blind V Astrue, Mel Cousins
Mel Cousins
This note examines a recent District Court decision in which the plaintiffs successfully challenged the adequacy of modes of communication by the Social Security Administration in its notices and other correspondence to blind and visually impaired persons. The case shows the potential of the Rehabilitation Act to improve services to persons with disabilities.
Coal Workers’ Pneumoconiosis And Equal Protection In Kentucky – Cain V Lodestar Energy, Gardner V Vision Mining And Martinez V Peabody Coal, Mel Cousins
Mel Cousins
This note discusses a number of recent decisions of the Kentucky courts concerning coal workers pneumoconiosis and equal protection. The Kentucky Court of Appeals has recently found unconstitutional a special ‘consensus’ procedure by which coal workers affected by pneumoconiosis were required to prove their claim for workers compensation. The case is currently under appeal to the Kentucky Supreme Court.
A New Clear And Present Danger: Security, Freedom And Ordered Liberty On The Home Front During The War Against Terrorism, Beau James Brock
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 action …
Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss
Executing Foster V. Neilson: Enforcing Treaties Against The States, David Sloss
David Sloss
In Medellin v. Texas, the Supreme Court held that Article 94 of the United Nations Charter is non-self-executing. In so holding, the Court applied the “intent-based” doctrine of self-execution. Conventional wisdom traces that doctrine to an 1829 opinion by Chief Justice Marshall in Foster v. Neilson. The conventional wisdom is wrong. Marshall applied the “two-step” approach to self-execution, not the modern intent-based doctrine. The two-step approach distinguishes clearly between questions of international and domestic law. International law governs the content and scope of the United States’ treaty obligations. Domestic law determines which government officers are responsible for domestic treaty implementation. …
Government Under Party, Party Under Constitution: On The Construction Of Chinese State-Party Rule Of Law Constitutionalism, Larry Cata Backer
Government Under Party, Party Under Constitution: On The Construction Of Chinese State-Party Rule Of Law Constitutionalism, Larry Cata Backer
Larry Cata Backer
Since the establishment of the Soviet Union, constitutional theory has tended to look suspiciously at the constitutionalization of Marxist Leninist state apparatus under the control of a single party in power. These judgments have formed the basis of analysis of Chinese constitutionalism as well. But are these criticisms inevitably correct in general, and wholly applicable in the post 1989 Chinese context after the structural reforms of Deng Xiaoping and his successors? This paper explores those questions, developing a constitutional theory for states organized on a state-party model. The thesis of the article is this: Chinese constitutionalism presents a coherent and …
Anti-Cyber Bullying Statutes: Threat To Student Free Speech, John O. Hayward
Anti-Cyber Bullying Statutes: Threat To Student Free Speech, John O. Hayward
John O. Hayward
In October 2006, thirteen-year-old Megan Meier committed suicide because of postings on MySpace, an Internet social networking site. As a result, twenty-one states have passed statutes prohibiting cyber bullying, i.e., bullying by electronic means. Many of these laws threaten student free speech. This article examines cyber bullying, the laws it has spawned, how they chill student speech, their constitutionality, and proposes a Model Anti-Cyber Bullying Law.
A Modest Appeal For Decent Respect, Jessica Olive, David C. Gray
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 abandon these …
Rights Bring Responsibility: Clear Constitutional Protections May Be Only The Beginning Of The Discussion, Alan E. Garfield
Rights Bring Responsibility: Clear Constitutional Protections May Be Only The Beginning Of The Discussion, Alan E. Garfield
Alan E Garfield
No abstract provided.