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Articles 1 - 30 of 59
Full-Text Articles in Public Law and Legal Theory
Preserving Life By Ranking Rights, John William Draper
Preserving Life By Ranking Rights, John William Draper
Librarian Scholarship at Penn Law
Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.
The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it …
Collusion, Obstruction Of Justice, And Impeachment, Ediberto Roman, Melissa Gonzalez, Dianet Torres
Collusion, Obstruction Of Justice, And Impeachment, Ediberto Roman, Melissa Gonzalez, Dianet Torres
Journal of Legislation
No abstract provided.
Bureaucratic Resistance And The National Security State, Rebecca Ingber
Bureaucratic Resistance And The National Security State, Rebecca Ingber
Faculty Scholarship
Modern accounts of the national security state tend toward one of two opposing views of bureaucratic tensions within it: At one extreme, the executive branch bureaucracy is a shadowy “deep state,” unaccountable to the public or even to the elected President. On this account, bureaucratic obstacles to the President’s agenda are inherently suspect, even dangerous. At the other end, bureaucratic resistance to the President represents a necessary benevolent constraint on an otherwise imperial executive, the modern incarnation of the separation of powers, as the traditional checks on the President of the courts and Congress have fallen down on the job. …
Taxonomy Of Minority Governments, Lisa La Fornara
Taxonomy Of Minority Governments, Lisa La Fornara
Indiana Journal of Constitutional Design
A minority government in its most basic form is a government in which the party holding the most parliamentary seats still has fewer than half the seats in parliament and therefore cannot pass legislation or advance policy without support from unaffiliated parties. Because seats in minority parliaments are more evenly distributed amongst multiple parties, opposition parties have greater opportunity to block legislation. A minority government must therefore negotiate with external parties and adjust its policies to garner the majority of votes required to advance its initiatives.
This paper serves as a taxonomy of minority governments in recent history and proceeds …
Single Subject Rules And Civil Rights: Using Legislative-Process Restrictions To Facially Challenge Constitutionally Suspect Laws, Annie Melton
Journal of Law and Policy
This Note argues that the single subject rule, a procedural restriction, can be used to facially challenge certain insidious laws. By giving courts an opening to review a law in its most elemental form—a deliberated-over means of adequately implementing a new, or remedying an existing, policy—the single subject rule tests it for characteristics like clarity, practicality, and predictability. The rule is rarely litigated in many states, but doing so draws attention to a fundamental philosophy of the legislative process, which is especially compelling in light of the ideological battles that are dominating statehouses across the country and giving rise to …
Speech-And-Display Laws: Balancing Physicians' Free Speech Rights And States' Interests In The Context Of Abortion, Emily Ruppert
Speech-And-Display Laws: Balancing Physicians' Free Speech Rights And States' Interests In The Context Of Abortion, Emily Ruppert
Journal of Law and Policy
“The question is not pro-abortion or anti-abortion, the question is who makes the decision: a woman and her physician, or the government.” – Gloria Steinem
Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang
Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang
All Faculty Scholarship
Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …
Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum
Originalist Theory And Precedent: A Public Meaning Approach, Lawrence B. Solum
Georgetown Law Faculty Publications and Other Works
Much ink has already been spilled on the relationship of constitutional originalism to precedent (or, more specifically, the doctrine of stare decisis). The debate includes contributions from Randy Barnett, Steven Calabresi, Kurt Lash, Gary Lawson, John McGinnis with Michael Rappaport, Michael Paulsen, and Lee Strang, not to mention Justice Antonin Scalia—all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, Ronald Dworkin, Michael Gerhardt, Randy Kozel, and David Strauss. Some writers are more difficult to classify; Akhil Amar comes to mind. And there are many other contributions to …
Private Law, Fundamental Rights, And The Rule Of Law, Hugh Collins
Private Law, Fundamental Rights, And The Rule Of Law, Hugh Collins
West Virginia Law Review
No abstract provided.
Punitive Preemption And The First Amendment, Rachel Proctor May
Punitive Preemption And The First Amendment, Rachel Proctor May
San Diego Law Review
In recent years, state legislators have begun passing a new breed of “punitive” preemption laws–those that impose fines, civil and criminal sanctions, and other sanctions on local governments and their officials as a consequence of passing laws or enacting policies that are inconsistent with state laws. This represents a significant change from traditional preemption, under which a local government could enact laws based on its view of preempting state statutes and applicable state constitutional provisions and, if necessary, defend its interpretation in court. When punitive preemption prevents a local lawmaking process from taking place, the state forecloses a unique form …
The Legal Foundations Of White Supremacy, Erika Wilson
The Legal Foundations Of White Supremacy, Erika Wilson
DePaul Journal for Social Justice
No abstract provided.
Georgia State Law Review Symposium Keynote Address: Uncovering Forensic Flaws - An Outside Perspective, Spencer S. Hsu
Georgia State Law Review Symposium Keynote Address: Uncovering Forensic Flaws - An Outside Perspective, Spencer S. Hsu
Georgia State University Law Review
This transcript is a reproduction of the Keynote Address by Spencer Hsu at the 2017–2018 Georgia State University Law Review Symposium — From the Crime Scene to the Court room: The Future of Forensic Science Reform — on April 6, 2018.
Spencer Hsu is an investigative reporter at the Washington Post, a two-time Pulitzer Prize finalist, and a national Emmy Award nominee.
Safety From Flawed Forensic Sciences Evidence, Boaz Sangero
Safety From Flawed Forensic Sciences Evidence, Boaz Sangero
Georgia State University Law Review
This article addresses the way to safety in the context of forensic sciences evidence. After presenting the current lack of safety, which I term “unsafety,” I raise some possible safety measures to contend with this. My suggestions are grounded on two bases: first, the specific analysis of each type of evidence in line with the most recent research on the subject; and second, modern safety theory and its application to the criminal justice system. It is important to stress that my proposals represent only some of the conceivable safety measures. Developing a comprehensive safety theory for the criminal justice system …
Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley
Things Invisible To See: State Action & Private Property, Joseph William Singer, Isaac Saidel-Goley
Texas A&M Law Review
This Article revisits the state action doctrine, a judicial invention that shields “private” or “non-governmental” discrimination from constitutional scrutiny. Traditionally, this doctrine has applied to discrimination even in places of public accommodation, like restaurants, hotels, and grocery stores. Born of overt racial discrimination, the doctrine has inflicted substantial injustice throughout its inglorious history, and courts have continuously struggled in vain to coherently apply the doctrine. Yet, the United States Supreme Court has not fully insulated “private” or “horizontal” relations among persons from constitutional scrutiny. The cases in which it has applied constitutional norms to non-governmental actors should be celebrated rather …
A Lesson From Goodfellas: Why Current Illinois Consideration Based Pension Reform Proposals Still Fail, Lari A. Dierks
A Lesson From Goodfellas: Why Current Illinois Consideration Based Pension Reform Proposals Still Fail, Lari A. Dierks
Northwestern Journal of Law & Social Policy
No abstract provided.
Legal Ethics And The Political Activity Of Government Lawyers, Andrew Martin
Legal Ethics And The Political Activity Of Government Lawyers, Andrew Martin
Articles, Book Chapters, & Popular Press
The ability to engage in political activity is an essential feature of a democratic society. However, the ability of government lawyers to do so is unclear. While most governments have passed legislation identifying permissible political activity of their employees, it is unclear how the professional obligations of lawyers apply in this context and how these professional obligations interact with this legislation. This article answers these questions. The duty of loyalty to the client requires most government lawyers to refrain from all political activity at the same level of government. The special professional obligations of Crown prosecutors require these lawyers to …
A Review Of Various Actions By The Federal Bureau Of Investigation And Department Of Justice In Advance Of The 2016 Election, Office Of The Inspector General, U.S. Department Of Justice
A Review Of Various Actions By The Federal Bureau Of Investigation And Department Of Justice In Advance Of The 2016 Election, Office Of The Inspector General, U.S. Department Of Justice
United States Department of Justice: Publications and Materials
The Department of Justice (Department) Office of the Inspector General (OIG) undertook this review of various actions by the Federal Bureau of Investigation (FBI) and Department in connection with the investigation into the use of a private email server by former Secretary of State Hillary Clinton. Clinton served as Secretary of State from January 21, 2009, until February 1, 2013, and during that time used private email servers hosting the @clintonemail.com domain to conduct official Department of State (State Department) business. In 2014, in response to a request from the State Department to Clinton for “copies of any Federal records …
Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing
Entering The Trump Ice Age: Contextualizing The New Immigration Enforcement Regime, Bill Ong Hing
Texas A&M Law Review
During the early stages of the Trump ICE age, America seemed to be witnessing and experiencing an unparalleled era of immigration enforcement. But is it unparalleled? Did we not label Barack Obama the “deporter-inchief?” Was it not George W. Bush who used the authority of the Patriot Act to round up nonimmigrants from Muslim and Arab countries, and did his ICE not commonly engage in armed raids at factories and other worksites? Are there not strong parallels that can be drawn between Trump enforcement plans and actions and those of other eras? What about the fear and hysteria that seems …
Multiculturalism And The Bill Of Rights, Arthur Schlesinger Jr.
Multiculturalism And The Bill Of Rights, Arthur Schlesinger Jr.
Maine Law Review
The Second Annual Frank M. Coffin Lecture on Law and Public Service was held on October 7, 1993. Professor Arthur M. Schlesinger, Jr. presented "Multiculturalism and the Bill of Rights."
A Study In Sovereignty: Federalism, Political Culture, And The Future Of Conservatism, Clint Hamilton
A Study In Sovereignty: Federalism, Political Culture, And The Future Of Conservatism, Clint Hamilton
Senior Honors Theses
This thesis confronts symptoms of an issue which is eroding at the principles of conservative advocacy, specifically those dealing with federalism. It contrasts modern definitions of federalism with those which existed in the late 1700s, and then attempts to determine the cause of the change. Concluding that the change was caused by a shift in American political identity, the author argues that the conservative movement must begin a conversation on how best to adapt to the change to prevent further drifting away from conservative principles.
Impact Of 2001 - 2016 Supreme Court Establishment Clause Cases, Nicole Cumming
Impact Of 2001 - 2016 Supreme Court Establishment Clause Cases, Nicole Cumming
Honors Theses
This study will look at United States Supreme Court Establishment Clause cases from 2001-2016. During those 16 years, the Court decided 1,276 cases. Only 10 of those cases dealt with the establishment clause.
At an absolute minimum, the Establishment Clause was intended to prohibit the federal government from declaring and financially supporting a national religion, which existed in many other countries at the time of America's founding. This idea has become vital to the values Americans hold dear. Throughout history, religious freedom and tolerance have been celebrated, and most of that is due to the Establishment Clause. However, there is …
Characterizing Power For Separation-Of-Powers Purposes, Tuan N. Samahon
Characterizing Power For Separation-Of-Powers Purposes, Tuan N. Samahon
University of Richmond Law Review
The U.S. Constitution parcels "legislative," "executive," and "judicial" powers among the separate branches of the federal government, but leaves those powers undefined. Accordingly, characterizing exercises of power becomes an important threshold inquiry in separation-of-powers disputes. This symposium Essay canvasses four competing judicial approaches to the characterization of power: functional inquiry; identity-of-the-officer formalism; historical induction; and skepticism. In this area, Justice Scalia's formalism has been particularly influential but created considerable tension with original public meaning originalism. This Essay explains how Scalia's formalism led to his embrace of delegation and concludes by cautioning against judicial oversimplification in the characterization inquiry.
The People Against The Constitution, Aziz Z. Huq
The People Against The Constitution, Aziz Z. Huq
Michigan Law Review
A review of Jan-Werner Müller, What Is Populism?.
African Courts And Separation Of Powers: A Comparative Study Of Judicial Review In Uganda & South, Joseph M. Isanga
African Courts And Separation Of Powers: A Comparative Study Of Judicial Review In Uganda & South, Joseph M. Isanga
Joseph Isanga
Achieving political stability in a transitional democracy is a fundamental goal, the resoluteness of which is in part maintained by courts of judicial review that are independent from political bias and devoid of deference to traditionally more powerful branches of government. The recent democratic transitions occurring in the African nations of South Africa and Uganda provide a unique, contemporary insight into the formation of a constitutional jurisprudence. This study is an examination of pivotal cases decided by the Constitutional Courts of South Africa and Uganda, the roles that these decisions play in political stability, and the potential for political bias …
Serving Pets In Poverty: A New Frontier For The Animal Welfare Movement, Amanda Arrington, Michael Markarian
Serving Pets In Poverty: A New Frontier For The Animal Welfare Movement, Amanda Arrington, Michael Markarian
Sustainable Development Law & Policy
No abstract provided.
How Fast Is Too Fast? Osha’S Regulation Of The Meat Industry’S Line Speed And The Price Paid By Humans And Animals, Israel Cook
How Fast Is Too Fast? Osha’S Regulation Of The Meat Industry’S Line Speed And The Price Paid By Humans And Animals, Israel Cook
Sustainable Development Law & Policy
No abstract provided.
The Farts Heard ‘Round The World: Where Cow-Tapping Falls On The International Agenda Of Sustainable Development, Alexandra C. Nolan
The Farts Heard ‘Round The World: Where Cow-Tapping Falls On The International Agenda Of Sustainable Development, Alexandra C. Nolan
Sustainable Development Law & Policy
No abstract provided.
This Is Not The Bee’S Knees: A Critical View Of The Government’S Lack Of Policy To Conserve The Pollinators, Savannah Pugh
This Is Not The Bee’S Knees: A Critical View Of The Government’S Lack Of Policy To Conserve The Pollinators, Savannah Pugh
Sustainable Development Law & Policy
No abstract provided.
Legislative Efforts To Increase State Management For Imperiled Species Should Be Rejected, Stephanie Kurose
Legislative Efforts To Increase State Management For Imperiled Species Should Be Rejected, Stephanie Kurose
Sustainable Development Law & Policy
No abstract provided.
Anthropogenic Noise And The Endangered Species Act, Carolyn Larcom
Anthropogenic Noise And The Endangered Species Act, Carolyn Larcom
Sustainable Development Law & Policy
No abstract provided.