Scarce Medical Resources – Parenthood At Every Age, In Every Case And Subsidized By The State?, Yehezkel 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 ...
Conscience And Complicity: Assessing Pleas For Religious Exemptions In Hobby Lobby's Wake, 2015 University of Pennsylvania
Conscience And Complicity: Assessing Pleas For Religious Exemptions In Hobby Lobby's Wake, Amy Sepinwall
Amy J. Sepinwall
In the paradigmatic case of conscientious objection, the objector claims that his religion forbids him from actively participating in a wrong (e.g., by fighting in a war). In the religious challenges to the Affordable Care Act’s employer mandate, on the other hand, employers claim that their religious convictions forbid them from merely subsidizing insurance through which their employees might commit a wrong (e.g., by using contraception). The understanding of complicity underpinning these challenges is vastly more expansive than what standard legal doctrine or moral theory contemplates. Courts routinely reject claims of conscientious objection to taxes that fund ...
Unreasonable Doubt: Warren Hill, Aedpa, And The Unconstitutionality Of Georgia's Reasonable Doubt Standard, 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
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, 2015 Duke Law
Constructed Constraint And The Constitutional Text, Curtis A. Bradley, Neil S. Siegel
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 ...
Speaker Discrimination: The Next Frontier Of Free Speech, 2015 University of Nevada, Las Vegas -- William S. Boyd School of Law
Speaker Discrimination: The Next Frontier Of Free Speech, Michael Kagan
Citizens United v. FEC articulated a new pillar of free speech doctrine that is independent from the well-known controversies about corporate personhood and the role of money in elections. For the first time, the Supreme Court clearly said that discrimination on the basis of the identity of the speaker offends the First Amendment. Previously, the focus of free speech doctrine had been on the content and forum of speech, not on the identity of the speaker. This new doctrine has the potential to reshape free speech law far beyond the corporate speech and campaign finance contexts. This article explores the ...
Confronting Cops In Immigration Court, 2015 Boston College Law School
Confronting Cops In Immigration Court, Mary Holper
Immigration judges routinely use police reports to make life-altering decisions in noncitizens’ lives. The word of the police officer prevents a detainee from being released on bond, leads to negative discretionary decisions in relief from removal, and can prove that a past crime fits within a ground of removability. Yet the police officers who write these reports rarely step foot in immigration court; immigration judges rely on the hearsay document to make such critical decisions. This practice is especially troubling when the same police reports cannot be used against the noncitizen in a criminal case without the officer testifying, due ...
Corporate Piety And Impropriety: Hobby Lobby's Extension Of Rfra Rights To For-Profit Corporations, 2015 University of Pennsylvania
Corporate Piety And Impropriety: Hobby Lobby's Extension Of Rfra Rights To For-Profit Corporations, Amy Sepinwall
Amy J. Sepinwall
In Burwell v. Hobby Lobby, the Supreme Court held, for the first time, that the Religious Freedom Restoration Act (RFRA) applied to for-profit corporations and, on that basis, it allowed Hobby Lobby to omit otherwise mandated contraceptive coverage from its employee healthcare package. Critics argue that the Court’s novel expansion of corporate rights is fundamentally inconsistent with the basic principles of corporate law. In particular, they contend that the decision ignores the fact that the corporation, as an artificial entity, cannot exercise religion in its own right, and they decry the notion that the law might look through the ...
Free Expression, In-Group Bias, And The Court's Conservatives: A Critique Of The Epstein-Parker-Segal Study, Todd E. Pettys
Todd E. Pettys
In a recent, widely publicized study, a prestigious team of political scientists concluded that there is strong evidence of ideological in-group bias among the Supreme Court’s members in First Amendment free-expression cases, with the current four most conservative justices being the Roberts Court’s worst offenders. Beneath the surface of the authors’ conclusions, however, one finds a surprisingly sizable combination of coding errors, superficial case readings, and questionable judgments about litigants’ ideological affiliations. Many of those problems likely flow either from shortcomings that reportedly afflict the Supreme Court Database (the data set that nearly always provides the starting point ...
The Challenge Of Co-Religionist Commerce, 2015 Duke Law
The Challenge Of Co-Religionist Commerce, Michael A. Helfand, Barak D. Richman
This Article addresses the rise of “co-religionist commerce” in the United States — that is, the explosion of commercial dealings that take place between co-religionists who intend their transactions to achieve both commercial and religious objectives. To remain viable, co-religionist commerce requires all the legal support necessary to sustain all other commercial relationships. Contracts must be enforced, parties must be protected against torts, and disputes must be reliably adjudicated.
Under current constitutional doctrine, co-religionist commercial agreements must be translated into secular terminology if there are to be judicially enforced. However, religious goods and services often cannot be accurately translated without religious ...
Environmental Federalism's Tug Of War Within, 2015 SelectedWorks
Environmental Federalism's Tug Of War Within, Erin Ryan
Anyone paying attention has noticed that many of the most controversial issues in American governance—health care reform, marriage rights, immigration, drug law, and others—involve questions of federalism. The intensity of these disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world, where the answers to jurisdictional questions are less and less obvious. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy, and it is likely to do so for some time. From mining to ...
Constitutional Law In Social Choice Perspective, 2015 University of Maryland Francis King Carey School of Law
Constitutional Law In Social Choice Perspective, Maxwell L. Stearns
Maxwell L. Stearns
Constitutional scholars do not typically employ spatial reasoning in their work. And yet, constitutional jurisprudence implicitly rests on a set of assumptions that can best be cast in spatial terms. This includes assuming that debated positions respecting constitutional issues, along with the views of Supreme Court justices, rest along a common liberal-to-conservative ideological dimension. Political scientists who embrace the Attitudinal Model are more explicit in this framing, which is itself a premise of those who code the Supreme Court Database upon which much quantitative work in the field of Judicial Politics takes place.
The assumption of a single analytical dimension ...
Unwrapping The Box The Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations Over Confronting The Confrontation Clause, 2015 Georgetown University Law Center
Unwrapping The Box The Supreme Court Justices Have Gotten Themselves Into: Internal Confrontations Over Confronting The Confrontation Clause, Paul F. Rothstein
Georgetown Law Faculty Publications and Other Works
Williams v. Illinois, handed down in 2012, is the latest in a new and revolutionary line of U.S. Supreme Court cases beginning with the 2004 decision of Crawford v. Washington which radically altered the Court's former approach to the Constitutional Confrontation Clause. That clause generally requires persons who make written or oral statements outside the trial, that may constitute evidence against a criminal defendant, to take the witness stand for cross-examination rather than those statements being presented at the trial only by the writing or by another person who heard the statement.
Previous to Crawford, under Ohio v ...
Disappearing Claims And The Erosion Of Public Law, 2015 Georgetown University Law Center
Disappearing Claims And The Erosion Of Public Law, J. Maria Glover
Georgetown Law Faculty Publications and Other Works
The Supreme Court’s arbitration jurisprudence in the last five years represents the culmination of a three-decade long expansion of the use of private arbitration as an alternative to court adjudication in the resolution of disputes of virtually every type of justiciable claim. As scholars have traced, privatizing disputes that would otherwise be public may well erode public confidence in public institutions and the judicial process. Accordingly, many observers have linked this decades-long privatization of dispute resolution to an erosion of the public realm. In this piece I argue that the Court’s recent arbitration jurisprudence undermines the public law ...
Ambiguous-Purpose Statements Of Children And Other Victims Of Abuse Under The Confrontation Clause, 2015 Georgetown University Law Center
Ambiguous-Purpose Statements Of Children And Other Victims Of Abuse Under The Confrontation Clause, Paul F. Rothstein
Georgetown Law Faculty Publications and Other Works
The author examines in this paper two kinds of ambiguous-purpose out-of-court statements that are especially problematic under current Confrontation law--problematic in ways that we hope will be solved directly or indirectly by the Supreme Court when it renders its decision in Ohio v. Clark. The statements he examines are:
(1) Statements made by abused children concerning their abuse, for example to police, physicians, teachers, welfare workers, baby sitters, or family members, some of whom may be under a legal duty to report suspected abuse to legal authorities. At least some of these statements will be directly addressed by the Court ...
A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, 2015 University of Nevada, Las Vegas -- William S. Boyd School of Law
A Taxonomy Of Discretion: Refining The Legality Debate About Obama’S Executive Actions On Immigration, Michael Kagan
Broad executive action has been the Obama Administration’s signature contribution to American immigration policy, setting off a furious debate about whether the President has acted outside his constitutional powers. But the legal debate about the scope of the President’s authority to change immigration policy has not fully recognized what is actually innovative about the Obama policies, and thus has not focused on those areas where he has taken executive discretion into uncharted territory. This essay aims to add new focus to the debate about Pres. Obama’s executive actions by defining five different types of presidential discretion: Congressionally-authorized ...
Amending Constitutional Amendment Rules, 2015 Boston College Law School
Amending Constitutional Amendment Rules, Richard Albert
No part of a constitution is more important than the rules that govern its amendment and its entrenchment against it. Given the important functions served by formal constitutional amendment rules, we might expect constitutional designers to entrench them against ordinary amendment, for instance by requiring a higher-than-usual quantum of agreement for their amendment or by making them altogether unamendable. Yet relatively few constitutional democracies set a higher threshold for formally amending formal amendment rules. In this Article, I demonstrate that existing written and unwritten limits to formally amending formal amendment rules are unsatisfactory, and I offer modest textual entrenchment strategies ...
Dicta And The Rule Of Law, 2014 Pepperdine University
Dicta And The Rule Of Law, Ryan S. Killian
Pepperdine Law Review
This Essay is about dicta. Like Olson, the Essay will not spend much time arguing about the definition of dicta. Rather, it analyzes rule of law issues as they pertain to dicta. Does the definition of dicta matter? Does reliance on dicta by subsequent courts raise rule of law concerns? The answer to both questions is yes.
An Outline For The Study Of Ethiopian Constitutional Law, 2014 SelectedWorks
An Outline For The Study Of Ethiopian Constitutional Law, Tsegaye Beru
This outline is based on the 1995 Ethiopian Constitution. However, it is important to acknowledge that the 1995 Constitution cannot be studied in isolation. Like its forerunners, the Constitution is not distinctively Ethiopia, save the customary and religious laws that have been recognized by it. Past and present constitutions were derived from various sources, mostly Western. The immediate source of the 1995 Constitution is the Charter of the Transitional Government that took power from the military government. However, the 1995 Constitution was built upon the constitutions and laws that preceded it and the customary and religious laws that predated it ...
Guarding Against Abuse: The Costs Of Excessively Long Copyright Terms, 2014 The Catholic University of America, Columbus School of Law
Guarding Against Abuse: The Costs Of Excessively Long Copyright Terms, Derek Khanna
CommLaw Conspectus: Journal of Communications Law and Technology Policy
No abstract provided.