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Scarce Medical Resources – Parenthood At Every Age, In Every Case And Subsidized By The State?, yehezkel Margalit 2015 SelectedWorks

Scarce Medical Resources – Parenthood At Every Age, In Every Case And Subsidized By The State?, Yehezkel Margalit

Hezi Margalit

The dilemma of scarce medical resources is deeply rooted in the ancient mankind history, but it has been accelerated in the modern era with the appearance of the bio-medical innovations. This acute dilemma is relevant to all the western developed states, include Israel. Nevertheless, in one field there is the notion that Israel has unlimited medical resources – the fulfillment of its citizen's procreation and parenthood rights. Thus, for sociological, demographical, religious and security reasons the State of Israel invests a vast amount of money to develop and use the various fertility treatments. Israel, today, has the highest per capita ...


Unreasonable Doubt: Warren Hill, Aedpa, And The Unconstitutionality Of Georgia's Reasonable Doubt Standard, Adam Lamparello 2015 SelectedWorks

Unreasonable Doubt: Warren Hill, Aedpa, And The Unconstitutionality Of Georgia's Reasonable Doubt Standard, Adam Lamparello

Adam Lamparello

Georgia’s “beyond a reasonable doubt” standard for determining intellectual disability has led to an absurd—and arbitrary—result. A Georgia state court held that defendant Warren Hill was intellectually disabled, yet still sentenced Hill to death. Seven experts—and the court—deemed Hill disabled under a preponderance of the evidence standard. He remains on death row, however, because Georgia’s “preposterous burden of proof” requires that intellectual disability be proved beyond a reasonable doubt, a standard experts have said is nearly impossible to satisfy. It “effectively limits the constitutional right protected in Atkins,” and creates a conditional, not categorical ...


Dog Whistling, The Color-Blind Jurisprudential Regime And The Constitutional Politics Of Race, Calvin J. TerBeek 2015 SelectedWorks

Dog Whistling, The Color-Blind Jurisprudential Regime And The Constitutional Politics Of Race, Calvin J. Terbeek

Calvin J TerBeek

Ian Haney Lopez’s new book, "Dog Whistle Politics: How Coded Racial Appeals Have Reinvented Racism and Wrecked the Middle Class", has a provocative thesis. Lopez contends that dog-whistling, that is, coded racial rhetoric, “explains how politicians backed by concentrated wealth manipulate racial appeals to win elections and also to win support for regressive policies that help corporations and the super-rich, and in the process wreck the middle class." Though this may seem plausible enough, the thesis cannot stand up to scrutiny; the relevant political science literature provides no support for this. What is more, Lopez's treatment of the ...


Constructed Constraint And The Constitutional Text, Curtis A. Bradley, Neil S. Siegel 2015 Duke Law

Constructed Constraint And The Constitutional Text, Curtis A. Bradley, Neil S. Siegel

Faculty Scholarship

In recent years, constitutional theorists have attended to the unwritten aspects of American constitutionalism and, relatedly, to the ways in which the constitutional text can be “constructed” upon by various materials. This Article takes a different approach. Instead of considering how various materials can supplement, implement, or interact with the constitutional text, the Article focuses on how the text itself is often partially constructed in American constitutional practice. Although interpreters typically regard clear text as controlling, this Article contends that whether the text is perceived to be clear is often affected by various “modalities” of constitutional interpretation that are normally ...


Restoring Constitutional Equilibrium, Adam Lamparello 2014 SelectedWorks

Restoring Constitutional Equilibrium, Adam Lamparello

Adam Lamparello

In areas such as the Fourteenth Amendment, the Supreme Court's lack of institutional restraint has affected citizens of every political persuasion. In Bush v. Gore, the Florida Supreme Court’s recount order was blocked. ‘Liberals,’ lost. In Roe v. Wade, the Court required state legislatures to allow most abortions in the first trimester. ‘Conservatives’ lost. In Clinton v. City of New York and Citizens United v. Federal Election Commission, the coordinate branch’s attempt to ensure a more efficient and fairer government was thwarted. Average citizens lost. The problem is not a liberal or conservative one, whatever those words ...


The Limits Of Child Pornography, Carissa Byrne Hessick 2014 Maurer School of Law: Indiana University

The Limits Of Child Pornography, Carissa Byrne Hessick

Indiana Law Journal

Although the First Amendment ordinarily protects the creation, distribution, and possession of visual images, the Supreme Court has declared that those protections do not apply to child pornography. But the Court has failed to clearly define child pornography as a category of speech. Providing a precise definition of the child pornography exception to the First Amendment has become increasingly important because recent years have seen a dramatic increase in the penalties associated with the creation, distribution, and possession of child pornography.

This Article proposes a clear definition of the child pornography exception. It argues that an image ought to fall ...


Abortion And The “Woman Question”: Forty Years Of Debate, Reva B. Siegel 2014 Maurer School of Law: Indiana University

Abortion And The “Woman Question”: Forty Years Of Debate, Reva B. Siegel

Indiana Law Journal

This paper was presented as the Addison C. Harris Lecture at the Indiana University Maurer School of Law, Bloomington, Indiana, September 27, 2012.


An Imminent Substantial Disruption: Towards A Uniform Standard For Balancing The Rights Of Students To Speak And The Rights Of Administrators To Discipline., Allison G. Kort 2014 SelectedWorks

An Imminent Substantial Disruption: Towards A Uniform Standard For Balancing The Rights Of Students To Speak And The Rights Of Administrators To Discipline., Allison G. Kort

Allison G Kort

ABSTRACT

An Imminent Substantial Disruption: Toward a Uniform Standard for Balancing the Rights of Students to Speak and the Rights of Administrators to Discipline.

By Allison Kort

Twenty-five years before the Supreme Court’s landmark school speech decision in Tinker v. Des Moines, 393 U.S. 503, 504 (1969), the Court cautioned against placing too much discretion in the hands of school boards. In Tinker, when students wore black armbands to protest the Vietnam War, the Supreme Court determined that student speech may not be censored when the record demonstrates no facts which would reasonably have led school authorities to ...


Free Exercise After The Arab Spring: Protecting Egypt’S Religious Minorities Under The Country’S New Constitution, James Michael Nossett 2014 Maurer School of Law: Indiana University

Free Exercise After The Arab Spring: Protecting Egypt’S Religious Minorities Under The Country’S New Constitution, James Michael Nossett

Indiana Law Journal

No abstract provided.


Inventing The Classical Constitution, Herbert Hovenkamp 2014 University of Iowa

Inventing The Classical Constitution, Herbert Hovenkamp

Herbert Hovenkamp

One recurring call over a century of American constitutional thought is for return to a “classical” understanding of American federal and state Constitutions. “Classical” does not necessarily mean “originalist” or “interpretivist." Some classical views, such as the attempt to revitalize Lochner-style economic due process, find little support in the text of the federal Constitution or any of the contemporary state constitutions. Rather, constitutional meaning is thought to lie in a background link between constitution formation and classical statecraft. The core theory rests on the assumption of a social contract to which everyone in some initial position agreed. Like any ...


Why The Right To Elective Abortion Fails Casey’S Own Interest-Balancing Methodology – And Why It Matters, Stephen G. Gilles 2014 SelectedWorks

Why The Right To Elective Abortion Fails Casey’S Own Interest-Balancing Methodology – And Why It Matters, Stephen G. Gilles

Stephen G Gilles

Why the Right to Elective Abortion Fails Casey’s Own Interest-Balancing Methodology – and Why It Matters

Stephen G. Gilles

In Planned Parenthood v Casey, the Supreme Court reaffirmed the right to elective abortion before viability, but abandoned Roe v Wade’s characterization of it as a fundamental right that can be overcome only by a compelling state interest. Instead, Casey treats the right to elective abortion as grounded in an interest-balancing judgment that the woman’s liberty interest in terminating her pregnancy outweighs the state’s interest in protecting pre-viable fetal life. Remarkably, however, the Casey Court did not defend ...


Good Faith Discrimination, Girardeau A. Spann 2014 SelectedWorks

Good Faith Discrimination, Girardeau A. Spann

Girardeau A Spann

Good Faith Discrimination

Girardeau A. Spann


Abstract

The Supreme Court’s current doctrinal rules governing racial discrimination and affirmative action are unsatisfying. They often seem artificial, internally inconsistent, and even conceptually incoherent. Despite a long and continuing history of racial discrimination in the United States, many of the problems with the Supreme Court’s racial jurisprudence stem from the Court’s willingness to view the current distribution of societal resources as establishing a colorblind, race-neutral baseline that can be used to make equality determinations. As a result, the current rules are as likely to facilitate racial discrimination as to prevent ...


Critical Legal Studies, Daniel Fernando Gomez Tamayo 2014 SelectedWorks

Critical Legal Studies, Daniel Fernando Gomez Tamayo

Daniel Fernando Gomez Tamayo

The Concept of Law, Hart vs Dworkin, Intelligent Design Research by Katherine S. Pollard and Howard Gardner, American Democracy, Fundamental Rights. American Canon Law.


Arizona Scr 1015, Daniel Cassidy 2014 SelectedWorks

Arizona Scr 1015, Daniel Cassidy

Daniel Cassidy

A concurrent resolution proclaiming support of the Second Amendment of the United States Constitution.


Equality And Democracy, Steven L. Winter 2014 SelectedWorks

Equality And Democracy, Steven L. Winter

Steven L Winter

Brown is the most celebrated case in 20th Century Constitutional Law but its egalitarian vision is under attack. This article examines the meaning of equality and its constitutive relation to democracy. It contrasts Robert Post’s and Peter Westen’s arguments critical equality with Charles Sumner’s arguments in Roberts v. City of Boston (1849) and the original, Athenian understanding of democracy on which it is based. It then considers the social and power dynamics of gender before, during, and after the January 25th uprising in Tahrir Square in Egypt. The critical lesson it draws from Roberts and Tahrir is ...


Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson 2014 SelectedWorks

Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson

Kenneth Lasson

SACRED COWS, HOLY WARS

Exploring the Limits of Law in the Regulation of Raw Milk and Kosher Meat

By Kenneth Lasson

Abstract

In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution’s Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights and ...


Constitutional Interpretation In Law-Making: China’S Invisible Constitutional Enforcement Mechanism, Tom Ginsburg, Yan Lin 2014 SelectedWorks

Constitutional Interpretation In Law-Making: China’S Invisible Constitutional Enforcement Mechanism, Tom Ginsburg, Yan Lin

Tom Ginsburg

Abstract: It is conventional wisdom that China’s Constitution is unenforceable, and plays little role in China’s legal system, other than as a symbolic document. This view rests on the fact that the Supreme Court has no power to interpret the Constitution. The formal body with interpretive power, the Standing Committee of the National People’s Congress, has never issued an official interpretation. Despite this apparent lack of enforcement, we argue that China’s Constitution indeed plays an increasingly important role within the party-state. It does through not through the courts but through the legislative process, in which formal ...


Against Regulatory Displacement: An Institutional Analysis Of Financial Crises, Jonathan C. Lipson 2014 SelectedWorks

Against Regulatory Displacement: An Institutional Analysis Of Financial Crises, Jonathan C. Lipson

Jonathan C. Lipson

This paper uses “institutional analysis”—the study of the relative capacities of markets, courts, and regulators—to make three claims about financial crises.

First, financial crises are increasingly a problem of “regulatory displacement.” Through the ad hoc rescues of 2008 and the Dodd-Frank reforms of 2010, regulators displace market and judicial processes that ordinarily prevent financial distress from becoming financial crises. Because regulators are vulnerable to capture by large financial services firms, however, they cannot address the pathologies that create crises: market concentration and complexity. Indeed, regulators may inadvertently aggravate these conditions through resolution tactics that consolidate firms, and the ...


Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, yehezkel Margalit 2014 SelectedWorks

Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the conceptualization and methodologies of determining legal parentage in the U.S. and other countries in the western world. Through various sociological shifts, growing social openness and bio-medical innovations, the traditional definitions of family and parenthood have been dramatically transformed. This transformation has led to an acute and urgent need for legal and social frameworks to regulate the process of determining legal parentage. Moreover, instead of progressing in a piecemeal, ad-hoc manner, the framework for determining legal parentage should be comprehensive. Only a comprehensive solution will address the differing needs of ...


The Future Of Polyamorous Marriage: Lessons From The Marriage Equality Struggle, Hadar Aviram, Gwendolyn Manriquez Leachman 2014 SelectedWorks

The Future Of Polyamorous Marriage: Lessons From The Marriage Equality Struggle, Hadar Aviram, Gwendolyn Manriquez Leachman

Hadar Aviram

Amidst the recent legal victories and growing public support for same-sex marriage, numerous polyamorous individuals have expressed interest in pursuing legal recognition for marriages between more than two consenting adults. This Article explores the possibilities that exist for such a polyamorous marriage equality campaign, in light of the theoretical literature on law and social movements, as well as our own original and secondary research on polyamorous and LGBT communities. Among other issues, we examine the prospect of prioritizing the marriage struggle over other forms of nonmarital relationship recognition; pragmatic regulative challenges, like taxation, healthcare, and immigration; and how law and ...


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