Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Pennsylvania Carey Law School (16)
- Selected Works (5)
- Northwestern Pritzker School of Law (4)
- Touro University Jacob D. Fuchsberg Law Center (3)
- University of Georgia School of Law (3)
-
- University of Pittsburgh School of Law (3)
- Barry University School of Law (2)
- Brooklyn Law School (2)
- Columbia Law School (2)
- SelectedWorks (2)
- Claremont Colleges (1)
- Duke Law (1)
- Maurer School of Law: Indiana University (1)
- Seattle University School of Law (1)
- Syracuse University (1)
- The Peter A. Allard School of Law (1)
- Trinity College (1)
- University of Michigan Law School (1)
- Keyword
-
- Constitutional law (16)
- Separation of powers (5)
- Constitutional Law (4)
- First Amendment (4)
- Law enforcement (4)
-
- Civil Rights and Discrimination (3)
- Constitution (3)
- Criminal law (3)
- Criminal procedure (3)
- Due process (3)
- Executive power (3)
- Legal history (3)
- Legal theory (3)
- Presidency (3)
- Privacy (3)
- Public Law and Legal Theory (3)
- Supreme Court of the United States (3)
- Administrative law (2)
- Agency enforcement discretion (2)
- Amendment (2)
- Article III (2)
- Cases and controversies (2)
- Civil procedure (2)
- Civil rights (2)
- Courts (2)
- Criminal justice (2)
- Departmentalism (2)
- Discretion (2)
- Ethics (2)
- Executive branch (2)
- Publication
-
- All Faculty Scholarship (15)
- Northwestern University Law Review (4)
- Articles (3)
- Faculty Scholarship (3)
- Georgia Journal of International & Comparative Law (3)
-
- Touro Law Review (3)
- Barry Law Review (2)
- Stephen E Henderson (2)
- All Faculty Publications (1)
- Brooklyn Journal of International Law (1)
- Bruce Ledewitz (1)
- Hezi Margalit (1)
- Howard M Wasserman (1)
- Indiana Journal of Constitutional Design (1)
- Jorge R Roig (1)
- Journal of Law and Policy (1)
- Katharine Jackson (1)
- Michigan Law Review (1)
- Pitzer Senior Theses (1)
- Political Science - All Scholarship (1)
- Prize Winning Papers (1)
- Seattle University Law Review (1)
- Senior Theses and Projects (1)
- Publication Type
Articles 1 - 30 of 50
Full-Text Articles in Public Law and Legal Theory
Amendment Creep, Jonathan L. Marshfield
Amendment Creep, Jonathan L. Marshfield
Michigan Law Review
To most lawyers and judges, constitutional amendment rules are nothing more than the technical guidelines for changing a constitution’s text. But amendment rules contain a great deal of substance that can be relevant to deciding myriad constitutional issues. Indeed, judges have explicitly drawn on amendment rules when deciding issues as far afield as immigration, criminal procedure, free speech, and education policy. The Supreme Court, for example, has reasoned that, because Article V of the U.S. Constitution places no substantive limitations on formal amendment, the First Amendment must protect even the most revolutionary political viewpoints. At the state level, courts have …
Multifactoral Free Speech, Alexander Tsesis
Multifactoral Free Speech, Alexander Tsesis
Northwestern University Law Review
This Article presents a multifactoral approach to free speech analysis. Difficult cases present a variety of challenges that require judges to weigh concerns for the protection of robust dialogue, especially about public issues, against concerns that sound in common law (such as reputation), statutory law (such as repose against harassment), and in constitutional law (such as copyright). Even when speech is implicated, the Court should aim to resolve other relevant individual and social issues arising from litigation. Focusing only on free speech categories is likely to discount substantial, and sometimes compelling, social concerns warranting reflection, analysis, and application. Examining the …
Cultural Democracy And The First Amendment, Jack M. Balkin
Cultural Democracy And The First Amendment, Jack M. Balkin
Northwestern University Law Review
Freedom of speech secures cultural democracy as well as political democracy. Just as it is important to make state power accountable to citizens, it is also important to give people a say over the development of forms of cultural power that transcend the state. In a free society, people should have the right to participate in the forms of meaning-making that shape who they are and that help constitute them as individuals.
The digital age shows the advantages of a cultural theory over purely democracy-based theories. First, the cultural account offers a more convincing explanation of why expression that seems …
Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson
Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson
Katharine Jackson
This paper first examines and critiques the group rights to religious exercise derived from the three ontologies of the corporation suggested by different legal conceptions of corporate personhood often invoked by Courts. Finding the implicated groups rights inimical to individual religious freedom, the paper then presents an argument as to why a discourse of intra-corporate toleration and voluntariness does a better job at protecting religious liberty.
Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas
Justice Scalia’S Originalism And Formalism: The Rule Of Criminal Law As A Law Of Rules, Stephanos Bibas
All Faculty Scholarship
Far too many reporters and pundits collapse law into politics, assuming that the left–right divide between Democratic and Republican appointees neatly explains politically liberal versus politically conservative outcomes at the Supreme Court. The late Justice Antonin Scalia defied such caricatures. His consistent judicial philosophy made him the leading exponent of originalism, textualism, and formalism in American law, and over the course of his three decades on the Court, he changed the terms of judicial debate. Now, as a result, supporters and critics alike start with the plain meaning of the statutory or constitutional text rather than loose appeals to legislative …
The Voice Of The People: Public Participation In The African Continent, Rafael Macia
The Voice Of The People: Public Participation In The African Continent, Rafael Macia
Indiana Journal of Constitutional Design
Public participation is becoming a more common characteristic of constitutional drafting processes around the world, and Africa has not been an exception in this regard. This paper seeks to survey several of the public participation processes undertaken in a number of African nations, in order to examine the methods followed and the effects produced by such processes. For that purpose, I have analyzed the constitutional drafting efforts in South Africa, Uganda, Eritrea, Zimbabwe, Rwanda, Kenya, and Egypt. These processes all show different circumstances and approaches, with variations in terms of their top-down or bottom-up nature, and, more importantly, in terms …
Reconsidering The History Of Open Courts In The Digital Age, Rory B. O'Sullivan, Catherine Connell
Reconsidering The History Of Open Courts In The Digital Age, Rory B. O'Sullivan, Catherine Connell
Seattle University Law Review
Article I, Section 10 of the Constitution of the State of Washington guarantees, “Justice in all cases shall be administered openly, and without unnecessary delay.” The Washington State Supreme Court has interpreted this clause to guarantee the public a right to attend legal proceedings and to access court documents separate and apart from the rights of the litigants themselves. Based on this interpretation, the court has struck down laws protecting the identity of both juvenile victims of sexual assault and individuals subject to involuntary commitment hearings. Its interpretation has also compromised the privacy rights of litigants wrongly named in legal …
Foundling Fathers: (Non-)Marriage And Parental Rights In The Age Of Equality, Serena Mayeri
Foundling Fathers: (Non-)Marriage And Parental Rights In The Age Of Equality, Serena Mayeri
All Faculty Scholarship
The twentieth-century equality revolution established the principle of sex neutrality in the law of marriage and divorce and eased the most severe legal disabilities traditionally imposed upon nonmarital children. Formal equality under the law eluded nonmarital parents, however. Although unwed fathers won unprecedented legal rights and recognition in a series of Supreme Court cases decided in the 1970s and 1980s, they failed to achieve constitutional parity with mothers or with married and divorced fathers. This Article excavates nonmarital fathers’ quest for equal rights, until now a mere footnote in the history of constitutional equality law.
Unmarried fathers lacked a social …
The Bounds Of Executive Discretion In The Regulatory State, Cary Coglianese, Christopher S. Yoo
The Bounds Of Executive Discretion In The Regulatory State, Cary Coglianese, Christopher S. Yoo
All Faculty Scholarship
What are the proper bounds of executive discretion in the regulatory state, especially over administrative decisions not to take enforcement actions? This question, which, just by asking it, would seem to cast into some doubt the seemingly absolute discretion the executive branch has until now been thought to possess, has become the focal point of the latest debate to emerge over the U.S. Constitution’s separation of powers. That ever‐growing, heated debate is what motivated more than two dozen distinguished scholars to gather for a two‐day conference held late last year at the University of Pennsylvania Law School, a conference organized …
Some Structural Dilemmas Of World Organization, C. Wilfred Jenks
Some Structural Dilemmas Of World Organization, C. Wilfred Jenks
Georgia Journal of International & Comparative Law
No abstract provided.
The Teaching Of International Law, Myres S. Mcdougal
The Teaching Of International Law, Myres S. Mcdougal
Georgia Journal of International & Comparative Law
No abstract provided.
The Place Of Policy In International Law, Oscar Schachter
The Place Of Policy In International Law, Oscar Schachter
Georgia Journal of International & Comparative Law
No abstract provided.
Criminal Prosecution And Section 1983, Barry C. Scheck
Criminal Prosecution And Section 1983, Barry C. Scheck
Touro Law Review
No abstract provided.
Procedural Due Process Claims, Erwin Chemerinsky
Procedural Due Process Claims, Erwin Chemerinsky
Touro Law Review
No abstract provided.
Juvenile Culpability And The Felony Murder Rule: Applying The Enmund Standard To Juveniles Facing Felony Murder Charges, Sterling Root
Juvenile Culpability And The Felony Murder Rule: Applying The Enmund Standard To Juveniles Facing Felony Murder Charges, Sterling Root
Senior Theses and Projects
Over the past decade, the Supreme Court has issued decisions in numerous cases (Roper v. Simmons, Graham v. Florida, Miller v. Alabama, and Montgomery v. Louisiana) involving juvenile sentencing that have radically transformed our juvenile criminal justice system. While some of these cases did involve juveniles convicted of felony murder, the Supreme Court never directly addressed how to handle juvenile sentencing in felony murder cases. This leaves a gap in society’s understanding of juvenile felony murder sentencing that must be addressed. Otherwise, many juveniles that never intended, attempted, or wished that a life be taken might spend the rest of …
Recent Supreme Court Employment Law Developments, Olati Johnson, Douglas D. Scherer
Recent Supreme Court Employment Law Developments, Olati Johnson, Douglas D. Scherer
Touro Law Review
No abstract provided.
The Federal Government's Usurpation Of Local Control From Public Schools: A Historical Analysis Of Politics, Law, And Reaction, Brett Geier
Barry Law Review
No abstract provided.
The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi
The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi
Northwestern University Law Review
Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines—the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly …
Will The Real Lawmakers Please Stand Up: Congressional Standing In Instances Of Presidential Nonenforcement, Bethany R. Pickett
Will The Real Lawmakers Please Stand Up: Congressional Standing In Instances Of Presidential Nonenforcement, Bethany R. Pickett
Northwestern University Law Review
The Take Care Clause obligates the President to enforce the law. Yet increasingly, presidents use nonenforcement to unilaterally waive legislative provisions to serve their executive policy goals. In doing so, the President’s inaction takes the practical form of a congressional repeal—a task that is solely reserved for Congress under the Constitution. Presidential nonenforcement therefore usurps Congress’s unique responsibility in setting the national policy agenda.
This Note addresses whether Congress has standing to sue in instances of presidential nonenforcement to realign and reaffirm Congress’s unique legislative role. In answering this question, this Note examines legislative standing precedent and argues that the …
Rejecting Sovereign Immunity In Public Law Litigation, Howard M. Wasserman
Rejecting Sovereign Immunity In Public Law Litigation, Howard M. Wasserman
Howard M Wasserman
No abstract provided.
“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer
“Spooky Action At A Distance”: Intangible Injury In Fact In The Information Age, Seth F. Kreimer
All Faculty Scholarship
Two decades after Justice Douglas coined “injury in fact” as the token of admission to federal court under Article III, Justice Scalia sealed it into the constitutional canon in Lujan v. Defenders of Wildlife. In the two decades since Lujan, Justice Scalia has thrown increasingly pointed barbs at the permissive standing doctrine of the Warren Court, maintaining it is founded on impermissible recognition of “Psychic Injury.” Justice Scalia and his acolytes take the position that Article III requires a tough minded, common sense and practical approach. Injuries in fact must be "tangible" "direct" "concrete" "de facto" realities in time and …
The Erosion Of The Rule Of Law When A State Attorney General Refuses To Defend The Constitutionality Of Controversial Laws, Rena M. Lindevaldsen
The Erosion Of The Rule Of Law When A State Attorney General Refuses To Defend The Constitutionality Of Controversial Laws, Rena M. Lindevaldsen
Barry Law Review
No abstract provided.
From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit
From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit
Hezi Margalit
In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known …
Taking Constitutional Identities Away From The Courts, Pietro Faraguna
Taking Constitutional Identities Away From The Courts, Pietro Faraguna
Brooklyn Journal of International Law
In federal states, constitutional identity is the glue that holds together the Union. On the contrary, in the European Union—not a fully-fledged federation yet—each Member state has its own constitutional identity. On the one hand, the Union may benefit from the particular knowledge, innovation, history, diversity, and culture of its individual states. On the other hand, identity-related claims may have a disintegrating effect. Constitutional diversity needs to come to terms with risks of disintegration. The Treaty on the European Union seeks a balance, providing the obligation to respect the constitutional identities of its Member states. Drawing from the European experience, …
Hate Speech And Double Standards, Thomas M. Keck
Hate Speech And Double Standards, Thomas M. Keck
Political Science - All Scholarship
Many European states ban the public expression of hateful speech directed at racial and religious minorities, and an increasing number do so for anti-gay speech as well. These laws have been subjected to a wide range of legal, philosophical, and empirical investigation, but this paper explores one potential cost that has not received much attention in the literature. Statutory bans on hate speech leave democratic societies with a Hobson’s choice. If those societies ban incitements of hatred against some vulnerable groups, they will inevitably face parallel demands for protection of other such groups. If they accede to those demands, they …
Class As Caste: The Thirteenth Amendment’S Applicability To Class-Based Subordination, William M. Carter Jr.
Class As Caste: The Thirteenth Amendment’S Applicability To Class-Based Subordination, William M. Carter Jr.
Articles
As part of a symposium marking the sesquicentennial of the Thirteenth Amendment, this Article briefly explores whether the Thirteenth Amendment applies to class-based subordination. While recognizing that the increasingly rigid class-based stratification of our society, rampant discrimination against the poor, increasing income inequality, and the concentration of enormous wealth in the hands of so few are all pressing social challenges that the legal system must address, this Article concludes that generalized class-based discrimination likely would not fall within the scope of the “badges and incidents of slavery” that the Amendment prohibits.
This Article argues, however, that the Thirteenth Amendment's prohibition …
The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh
The Constitutionalization Of Indian Private Law, Shyamkrishna Balganesh
All Faculty Scholarship
In this Essay, I examine the interaction between Indian constitutional law and Indian tort law. Using the context of the Indian Supreme Court’s dramatic expansion of its fundamental rights jurisprudence over the last three decades, I argue that while the Court’s conscious and systematic effort to transcend the public law/private law divide and incorporate concepts and mechanisms from the latter into the former might have produced a few immediate and highly salient benefits for the public law side of the system, its long terms effects on India’s private law edifice have been devastating. The Court’s fusion of constitutional law and …
Spelling Out Spokeo, Craig Konnoth, Seth F. Kreimer
Spelling Out Spokeo, Craig Konnoth, Seth F. Kreimer
All Faculty Scholarship
For almost five decades, the injury-in-fact requirement has been a mainstay of Article III standing doctrine. Critics have attacked the requirement as incoherent and unduly malleable. But the Supreme Court has continued to announce “injury in fact” as the bedrock of justiciability. In Spokeo v. Robins, the Supreme Court confronted a high profile and recurrent conflict regarding the standing of plaintiffs claiming statutory damages. It clarified some matters, but remanded the case for final resolution. This Essay derives from the cryptic language of Spokeo a six stage process (complete with flowchart) that represents the Court’s current equilibrium. We put …
Presidential Signing Statements: A New Perspective, Christopher S. Yoo
Presidential Signing Statements: A New Perspective, Christopher S. Yoo
All Faculty Scholarship
This Article offers a new perspective on Presidents’ use of signing statements. Following the dichotomy reflected in the literature, I will analyze signing statements raising constitutional objections and those offering interpretive guidance for ambiguous provisions separately. With respect to constitutional interpretation of statutes by the executive branch, Presidents have long asserted the authority and obligation to consider constitutionality when executing statutes. The widespread acceptance of the President’s power to construe statutes to avoid constitutional problems and to refuse to defend the constitutionality of or to enforce statutes in appropriate cases confirms the propriety of this conclusion. If these fairly uncontroversial …
Afterword: Kindling The Programmatic Production Of Critical And Outsider Legal Scholarship, 1996-2016, Sarudzayi M. Matambanadzo, Francisco Valdes, Sheila I, Velez Martinez
Afterword: Kindling The Programmatic Production Of Critical And Outsider Legal Scholarship, 1996-2016, Sarudzayi M. Matambanadzo, Francisco Valdes, Sheila I, Velez Martinez
Articles
This afterword to a conference-based symposium represents not only an inter-generational reflection on LatCrit theory @ XX, but also an aspirational reminder of our foundational propositions and values as we look and venture ahead. Beginning with an introduction to the foundational theoretical principles of LatCrit knowledge production - as embodied principally by LatCrit values and the related functions, guidelines, and postulates - we discuss in detail and depth how these theoretical principles underpin the various projects in the LatCrit "portfolio" and provide a historical sketch of the development of these projects as programmatic knowledge production. In particular, we aim …