Law and Society Commons^™

Finding New Constitutional Rights Through The Supreme Court’S Evolving “Government Purpose” Test Under Minimum Scrutiny, John H. Ryskamp

ExpressO

By now we all are familiar with the litany of cases which refused to find elevated scrutiny for so-called “affirmative” or “social” rights such as education, welfare or housing: Lindsey v. Normet, San Antonio School District v. Rodriguez, Dandridge v. Williams, DeShaney v. Winnebago County. There didn’t seem to be anything in minimum scrutiny which could protect such facts as education or housing, from government action. However, unobtrusively and over the years, the Supreme Court has clarified and articulated one aspect of minimum scrutiny which holds promise for vindicating facts. You will recall that under minimum scrutiny government’s action is …

Using Capture Theory And Chronology In Eminent Domain Proceedings, John H. Ryskamp

ExpressO

Capture theory--in which private purpose is substituted for government purpose--sheds light on a technique which is coming into greater use post-Kelo v. New London. That case affirmed that eminent domain use need only be rationally related to a legitimate government purpose. Capture theory focuses litigators' attention on "government purpose." That is a question of fact for the trier of fact. This article shows how to use civil discovery in order to show the Court that private purpose has been substituted for government purpose. If it has, the eminent domain use fails, because the use does not meet minimum scrutiny. This …

Finding The Constitutional Right To Education In San Antonio School District V. Rodriguez, John H. Ryskamp

ExpressO

In Lawrence v. Texas, the Supreme Court abolished the scrutiny regime because it impermissibly interfered with an important fact, liberty. And yet, even in earlier cases which ostensibly upheld the scrutiny regime, it is difficult to see that the Court ever did so to the detriment of facts it considered important. In short, the Court often (always?) found itself raising the level of scrutiny for a fact in the same case it upheld the regime, leaving us to wonder if the scrutiny regime ever actually had any effect at all, or even whether the Court felt it was relevant. As …

Reading, Writing, And Radicalism: The Limits On Government Control Over Private Schooling In An Age Of Terrorism., Avigael N. Cymrot

St. Mary's Law Journal

There are constitutional limitations that govern attempts to regulate the teaching of terrorism-encouraging ideologies. According to a 1999-2000 study by the National Center of Education Statistics, there are 152 full-time Islamic schools in the United States, schooling about 19,000 students. The primary concern is not that children will be instructed to immediately engage in terrorist acts, but that the teaching of a radical Islamist ideology will predispose them to join radical Islamist terrorist movements and engage in violence. The Free Exercise Clause and parental rights doctrine, however, might not by themselves bar the state from interfering in private education to …

Does A Computer's Choice Of Where To Reside Implicate The Dormant Commerce Clause?, Robert J. Firestone

NYLS Law Review

No abstract provided.

Isn't That Unconstitutional? Religion And Professional Life, Amelia J. Uelmen

Amelia J Uelmen

No abstract provided.

Copyright And Free Expression: The Convergence Of Conflicting Normative Frameworks, Shyamkrishna Balganesh

All Faculty Scholarship

Recent attempts to expand the domain of copyright law in different parts of the world have necessitated renewed efforts to evaluate the philosophical justifications that are advocated for its existence as an independent institution. Copyright, conceived of as a proprietary institution, reveals an interesting philosophical interaction with other libertarian interests, most notably the right to free expression. This paper seeks to understand the nature of this interaction and the resulting normative decisions. The paper seeks to analyze copyright law and its recent expansions, specifically from the perspective of the human rights discourse. It looks at the historical origins of modern …

Jon O. Newman And The Abortion Decisions: A Remarkable First Year, Andrew D. Hurwitz

NYLS Law Review

No abstract provided.

Privacy Lost: Comparing The Attenuation Of Texas's Article 1, Section 9 And The Fourth Amendment., Kimberly S. Keller

St. Mary's Law Journal

The Fourth Amendment to the United States Constitution requires that all searches and seizures be reasonable. Article I, Section 9 of the Texas Constitution mirrors its federal counterpart, requiring reasonableness in regard to intrusive governmental action. In examining these texts, both the federal and state provisions are comprised of two independent clauses: (1) the Reasonableness Clause, which prohibits unreasonable searches and seizures; and (2) the warrant clause, which provides that warrants may issue only upon a showing of probable cause. Both the federal and Texas constitutions include explicit language regulating the government’s right to intrude on a person’s privacy. This …

Caseload Burdens And Jurisdictional Limitations: Some Observations From The History Of The Federal Courts, Edward A. Purcell Jr.

NYLS Law Review

No abstract provided.

Tradition, Principle And Self-Sovereignty: Competing Conceptions Of Liberty In The United States Constitution, Robin West

Georgetown Law Faculty Publications and Other Works

The “liberty” protected by the United States Constitution has been variously interpreted as the “liberty” of thinking persons to speak, worship and associate with others, unimpeded by onerous state law; the liberty of consumers and producers to make individual market choices, including the choice to sell one’s labour at any price one sees fit, free of redistributive or paternalistic legislation that might restrict it; and the liberty of all of us in the domestic sphere to make choices regarding reproductive and family life, free of state law that might restrict it on grounds relating to public morals. Although the United …

Toward The Restorative Constitution: A Restorative Justice Critique Of Anti-Gang Public Nuisance Injunctions, Joan W. Howarth

Scholarly Works

Gang members from elsewhere congregated on lawns, on sidewalks, and in front of apartment complexes at all hours. They displayed a casual contempt for notions of law, order, and decency -- openly drinking, smoking dope, sniffing toluene, and even snorting cocaine laid out in neat lines on the hoods of residents' cars. San Jose prosecutors responded by obtaining and enforcing a broad injunction against the gangs and their members, based on the finding that the gangs' activities constituted a public nuisance. California prosecutors have sought such anti-gang public nuisance injunctions since 1987. Their constitutionality was in doubt for ten years …

Is Progressive Constitutionalism Possible?, Robin West

Georgetown Law Faculty Publications and Other Works

Progressivism is in part a particular moral and political response to the sadness of lesser lives, lives unnecessarily diminished by economic, psychic and physical insecurity in the midst of a society or world that offers plenty. This insecurity is unjust and should end; the suffering should be alleviated, and those lives should be enriched. To do so must be one of the goals of a morally just or justifiable state. Not all suffering and not all lesser lives, of course, give rise to such a response. The suffering attendant to accident, disease, war and happenstance is neither entirely chargeable to …

Law And Religion In Israel And Iran: How The Integration Of Secular And Spiritual Laws Affects Human Rights And The Potential For Violence, S. I. Strong

Michigan Journal of International Law

Part I of this article provides a brief sketch of the principles of the two majority religions at issue in this discussion and an overview of the history of both Israel and Iran. It explains why each nation has chosen to structure itself as it has and why the imposition of U.S.-style secularism would be an inappropriate method of dealing with the religio-legal conflict in the two societies. Part II compares the fundamental or constitutional laws of the two nations by analyzing the provisions, policies, and practices most influenced by religion. After identifying and analyzing the laws themselves in Part …

Ex Post Facto Laws: Supreme Court New York County People V. Griffin (Decided December 5, 1996

Touro Law Review

No abstract provided.

Reflections On From Slaves To Citizens Bondage, Freedom And The Constitution: The New Slavery Scholarship And Its Impact On Law And Legal Historiography, Robert J. Kaczorowski

Faculty Scholarship

The thesis of Professor Donald Nieman's paper, "From Slaves to Citizens: African-Americans, Rights Consciousness, and Reconstruction," is that the nation experienced a revolution in the United States Constitution and in the consciousness of African Americans. According to Professor Nieman, the Reconstruction Amendments represented "a dramatic departure from antebellum constitutional principles,"' because the Thirteenth Amendment reversed the pre-Civil War constitutional guarantee of slavery and "abolish[ed] slavery by federal authority." The Fourteenth Amendment rejected the Supreme Court's "racially-based definition of citizenship [in Dred Scott v. Sandford4], clearly establishing a color-blind citizenship” and the Fifteenth Amendment "wrote the principle of equality into the …

Searching For Basinwide Solutions To Endangered Species Problems Of The South Platte Of Colorado, James S. Lochhead

Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)

42 pages (includes illustrations and map).

Contains endnotes.

Community, Constitution, And Culture: The Case Of The Jewish Kehilah, Nomi Maya Stolzenberg, David N. Myers

University of Michigan Journal of Law Reform

Part I describes the historical development of the Jewish kehilah, its subsequent evolution, and eventual dissolution. Part II surveys recent trends in legal scholarship which reflect a growing consciousness of the tension between the demands of self-conscious cultural groups and liberal legal principles.

Toward An Abolitionist Interpretation Of The Fourteenth Amendment, Robin West

Georgetown Law Faculty Publications and Other Works

It is by now an open secret that current interpretations of the meaning of the equal protection clause of the Fourteenth Amendment, and of its relevance and mandate for contemporary problems of racial, gender, and economic justice, are deeply and, in a sense, hopelessly conflicted. The conflict, simply stated, is this: to the current Supreme Court, and to a sizeable and influential number of constitutional theorists, the "equal protection of the laws" guaranteed by the Constitution is essentially a guarantee that the categories delineated by legal rules will be "rational" and will be rationally related to legitimate state ends. To …

Law, Literature, And The Celebration Of Authority, Robin West

Georgetown Law Faculty Publications and Other Works

Richard Posner's new book, Law and Literature: A Misunderstood Relation, is a defense of “liberal legalism” against a group of modern critics who have only one thing in common: their use of either particular pieces of literature or literary theory to mount legal critiques. Perhaps for that reason, it is very hard to discern a unified thesis within Posner's book regarding the relationship between law and literature. In part, Posner is complaining about a pollution of literature by its use and abuse in political and legal argument; thus, the “misunderstood relation” to which the title refers. At times, Posner suggests …

Adjudication Is Not Interpretation: Some Reservations About The Law-As-Literature Movement, Robin West

Georgetown Law Faculty Publications and Other Works

Among other achievements, the modern law-as-literature movement has prompted increasing numbers of legal scholars to embrace the claim that adjudication is interpretation, and more specifically, that constitutional adjudication is interpretation of the Constitution. That adjudication is interpretation -- that an adjudicative act is an interpretive act -- more than any other central commitment, unifies the otherwise diverse strands of the legal and constitutional theory of the late twentieth century.

In this article, I will argue in this article against both modern forms of interpretivism. The analogue of law to literature, on which much of modern interpretivism is based, although fruitful, …

Housing For The Elderly: Constitutional Limitations And Our Obligations, Ed Stafman

Florida State University Law Review

No abstract provided.

Judicial Protection Of Minorities, Terrance Sandalow

Articles

In United States v. Carolene Products Co., Justice Stone suggested by indirection that there "may be narrower scope for operation of the presumption of constitutionality" when courts are called upon to determine the validity "of statutes directed at particular religious . . . or national . . . or racial minorities."' In such cases, he explained, "prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry."' Forty years later, …

The Law In Its Relation To Religion And Morals, Edwin C. Goddard

Other Publications

Man is a religious being. To him, everywhere and always, religion and religious institutions have been and will be of prime concern. Now, and in this United States, not less than in ages past and in other parts of the world, is this a fundamental fact. He who, without a recognition of this, would study either religion or government, would quite fail to comprehend his problem. Man is also a social being. As such he has always found it necessary to live in an organized society, under some form of government. The world depicted with such irresistible genius by Rosseau …