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Articles 1 - 30 of 39
Full-Text Articles in Law
“Reasoning-Lite” In The Violent Video Game Case, Alan Garfield
“Reasoning-Lite” In The Violent Video Game Case, Alan Garfield
Alan E Garfield
One might have expected that the Supreme Court’s recent decision in the violent video game case, Brown v. Entertainment Merchants Ass’n, would have been a thoughtful balancing of society’s competing interests in protecting freedom of speech and protecting children from harm. After all, the Supreme Court had held decades earlier that the government could deny minors access to soft-porn, or what the Court called “girlie magazines.” So one could have assumed the Court would seriously consider California’s claim that minors also needed sheltering from the grittier world of violent video game rapes, beheadings, and ethnic cleansings. Yet, as Justice Scalia’s …
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.
Gps Tracking And The Fourth Amendment, Alan E. Garfield
Gps Tracking And The Fourth Amendment, Alan E. Garfield
Alan E Garfield
No abstract provided.
Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg
Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg
Diane Hoffmann
The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …
Church Autonomy Versus Civil Rights, Alan E. Garfield
Church Autonomy Versus Civil Rights, Alan E. Garfield
Alan E Garfield
No abstract provided.
Pennsylvania Constitutional Conventions: Discarding The Myths, John Gedid
Pennsylvania Constitutional Conventions: Discarding The Myths, John Gedid
John L. Gedid
No abstract provided.
Aep V. Connecticut And The Future Of The Political Question Doctrine, James R. May
Aep V. Connecticut And The Future Of The Political Question Doctrine, James R. May
James R. May
No abstract provided.
The Constitution And Economic Policy, Alan E. Garfield
The Constitution And Economic Policy, Alan E. Garfield
Alan E Garfield
No abstract provided.
Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow
Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow
Rebecca E Zietlow
The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look …
Constitutional Environmental Rights Worldwide, James May, Erin Daly
Constitutional Environmental Rights Worldwide, James May, Erin Daly
Erin Daly
No abstract provided.
Supreme Court Decides That Clean Air Act Displaces Federal Common Law Claims For Climate Change, James R. May
Supreme Court Decides That Clean Air Act Displaces Federal Common Law Claims For Climate Change, James R. May
James R. May
No abstract provided.
Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow
Popular Originalism? The Tea Party And Constitutional Theory, Rebecca Zietlow
Rebecca E Zietlow
The United States Constitution is currently the subject of a heated political debate. Tea Party activists have invoked the constitution as the foundation of their conservative political philosophy. These activists are engaged in “popular originalism,” using popular constitutionalism, constitutional interpretation outside of the courts, to invoke originalism as constitutional method. The Tea Party movement thus provides an excellent heuristic to explore the relationship between originalism and popular constitutionalism, two prominent trends in constitutional theory. Both originalists and popular constitutionalists study legal history to illuminate constitutional meaning, but the two schools of thought draw diverging lessons from that history. Originalists look …
Hey Uncle Sam, Can You Spare A Couple Billion?: Examining The Constitutionality Of A State Bankruptcy Chapter, David E. Solan
Hey Uncle Sam, Can You Spare A Couple Billion?: Examining The Constitutionality Of A State Bankruptcy Chapter, David E. Solan
David E Solan
During February 2011 the prospect of creating a state bankruptcy chapter burst onto the national conversation. This debate largely centered on the necessity of state bankruptcy as a means of averting state bailouts, while some commentators vaguely invoked the need to tread gingerly on state prerogatives under the 10th Amendment. However, the constitutionality of bankruptcy-for-states demands closer scrutiny given that the Supreme Court’s recent 10th Amendment jurisprudence has evolved in the direction of protecting state sovereignty.
The Article examines a pair of cases from the 1930s that contested the constitutionality of municipal bankruptcy, and argues that the principles handed down …
Due Process And Fundamental Rights, Martin A. Schwartz
Due Process And Fundamental Rights, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Jewish Legal Theory And American Constitutional Theory: Some Comparisons And Contrasts, Samuel J. Levine
Jewish Legal Theory And American Constitutional Theory: Some Comparisons And Contrasts, Samuel J. Levine
Samuel J. Levine
In this article, Levine explores some of the ways in which Jewish law may shed light on issues in American constitutional theory. While acknowledging that there are fundamental differences between a religious legal system and a secular one, he attempts to show that certain conceptual similarities between American law and Jewish law allow for meaningful yet cautious comparison of the two systems. Part I provides a broad historical and analytical overview of interpretation in Jewish law. Part II of the Article offers a specific conceptual framework for comparing Jewish law with American law. Levine considers questions of flexibility in legal …
Why Should A President Have To Be A Natural-Born Citizen, Alan E. Garfield
Why Should A President Have To Be A Natural-Born Citizen, Alan E. Garfield
Alan E Garfield
No abstract provided.
Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), Garrett Power
Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions (2011 Edition), 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 …
Court's Ruling Fiercely Un-Madisonian, Alan E. Garfield
Court's Ruling Fiercely Un-Madisonian, Alan E. Garfield
Alan E Garfield
No abstract provided.
Limits On Preemption And Punitive Damages: Can They Be Related?, Peter Zablotsky
Limits On Preemption And Punitive Damages: Can They Be Related?, Peter Zablotsky
Peter Zablotsky
No abstract provided.
Lee V. Weisman: Whither The Establishment Clause And The Lemon V. Kurtzman Three Pronged Test?, Thomas A. Schweitzer
Lee V. Weisman: Whither The Establishment Clause And The Lemon V. Kurtzman Three Pronged Test?, Thomas A. Schweitzer
Thomas A. Schweitzer
No abstract provided.
Recent Developments At The Juncture Of The Political Question Doctrine And Climate Litigation Law, James R. May
Recent Developments At The Juncture Of The Political Question Doctrine And Climate Litigation Law, James R. May
James R. May
This short essay does three things. First, it provides a primer on the most recent case developments at the juncture of the climate litigation and the political question doctrine. Second, it hazards some discussion about how the Supreme Court might engage the political question issue in Connecticut v. American Electric Power Co., Civ. Action No. 10-174. It ends with some concluding thoughts about the impact that litigation has on climate policy.
Conservative Justices Fail To See Corrupting Influence Of Money, Alan E. Garfield
Conservative Justices Fail To See Corrupting Influence Of Money, Alan E. Garfield
Alan E Garfield
No abstract provided.
Brief Of Law Professors As Amici Curiae In Support Of Respondents, American Electric Power Co. V. State Of Connecticut, No. 10-174, James R. May, Stuart Banner
Brief Of Law Professors As Amici Curiae In Support Of Respondents, American Electric Power Co. V. State Of Connecticut, No. 10-174, James R. May, Stuart Banner
James R. May
No abstract provided.
New Directions In Earth Rights, Environmental Rights And Human Rights: Six Facets Of Constitutionally Embedded Environmental Rights Worldwide, James May, Erin Daly
New Directions In Earth Rights, Environmental Rights And Human Rights: Six Facets Of Constitutionally Embedded Environmental Rights Worldwide, James May, Erin Daly
Erin Daly
This essay provides an overview of the worldwide phenomenon of constitutional environmental rights. Since the Stockholm Convention, nearly 60 countries have constitutionally entrenched environmental rights, according their citizens basic rights to environmental quality in one form or another. The list is diverse politically, including countries with civil, common law, Islamic, and other traditions. Some of the more recent of these include Kenya in 2010, Ecuador in 2007, France in 2005, Afghanistan in 2004, and South Africa in 1996. As a result, domestic courts and international tribunals are enforcing constitutionally enshrined environmental rights with growing frequency, reflecting basic human rights to …
The Article Ii Safeguards Of Federal Jurisdiction, Tara L. Grove
The Article Ii Safeguards Of Federal Jurisdiction, Tara L. Grove
Tara L. Grove
Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. I seek to fill that void. Drawing on two strands of social science research, I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even when the …
The Article Ii Safeguards Of Federal Jurisdiction, Tara L. Grove
The Article Ii Safeguards Of Federal Jurisdiction, Tara L. Grove
Tara L. Grove
Jurisdiction stripping has long been treated as a battle between Congress and the federal judiciary. Scholars have thus overlooked the important (and surprising) role that the executive branch has played in these jurisdictional struggles. I seek to fill that void. Drawing on two strands of social science research, I argue that the executive branch has a strong incentive to use its constitutional authority over the enactment and enforcement of federal law to oppose jurisdiction-stripping measures. Notably, this structural argument has considerable historical support. The executive branch has repeatedly opposed jurisdiction-stripping proposals in Congress. That has been true even when the …
Leave Health Care Law's Validity Up To Voters, Alan E. Garfield
Leave Health Care Law's Validity Up To Voters, Alan E. Garfield
Alan E Garfield
No abstract provided.
Honest Debate At Core Of Constitution, Alan E. Garfield
Honest Debate At Core Of Constitution, Alan E. Garfield
Alan E Garfield
No abstract provided.
Dignity In The Service Of Democracy, Erin Daly
Dignity In The Service Of Democracy, Erin Daly
Erin Daly
At a broad level, perhaps the most noticeable trend in Latin American constitutional law is the increasing muscularity of constitutional tribunals. Throughout the region, particularly in South America, tribunals charged with interpreting their country’s constitution are increasingly asserting themselves and inserting themselves into public controversies, from abortion to same sex marriage to the rights of political association. This heightened judicial activity can come at a cost to democracy: typically, the more social issues are decided by unelected and unaccountable judges rather than through a political process, the less the people control the resolution of those issues. The more outcomes are …