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All Articles in Constitutional Law

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21766 full-text articles. Page 2 of 510.

The Human Life Federalism Amendment - An Assessment, Wilfred R. Caron 2017 St. John's University School of Law

The Human Life Federalism Amendment - An Assessment, Wilfred R. Caron

The Catholic Lawyer

No abstract provided.


Privatizing And Publicizing Speech, Nelson Tebbe 2017 Selected Works

Privatizing And Publicizing Speech, Nelson Tebbe

Nelson Tebbe

When should we allow governments to deploy private-law rules in order to circumvent public-law obligations? Two cases this year call that question to mind. They ask the Supreme Court to explore interactions between property law and constitutional rules concerning free speech and antiestablishment. On the one hand, the Court recently handed down Pleasant Grove City v. Summum, which involved a Ten Commandments monument that a private religious organization donated to a city. The Court concluded that the permanent monument became government speech when the city accepted the gift, displayed it in a municipal park, and formally took ownership of the ...


Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai 2017 Brooklyn Law School

Constitutional Borrowing, Nelson Tebbe, Robert L. Tsai

Nelson Tebbe

Borrowing from one domain to promote ideas in another domain is a staple of constitutional decisionmaking. Precedents, arguments, concepts, tropes, and heuristics all can be carried across doctrinal boundaries for purposes of persuasion. Yet the practice itself remains underanalyzed. This Article seeks to bring greater theoretical attention to the matter It defines what constitutional borrowing is and what it is not, presents a typology that describes its common forms, undertakes a principled defense of borrowing, and identifies some of the risks involved. Our examples draw particular attention to places where legal mechanisms and ideas migrate between fields of law associated ...


Eclecticism, Nelson Tebbe 2017 Cornell Law School

Eclecticism, Nelson Tebbe

Nelson Tebbe

This short piece comments on Kent Greenawalt's new book, Religion and the Constitution: Establishment and Fairness. It argues that although Greenawalt's eclectic approach carries certain obvious costs, his theory cannot be evaluated without comparing its advantages and disadvantages to those of its competitors. It concludes by giving some sense of what that comparative calculus might look like.


The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe 2017 Selected Works

The End Of Religious Freedom: What Is At Stake?, Nelson Tebbe

Nelson Tebbe

In recent work, Steven Smith argues that the American tradition of religious freedom is newly imperiled and may even be nearing exhaustion. This Review puts to one side the substance of that argument and focuses instead on what the stakes might be, should it turn out to be correct. It concludes that the consequences would not be as severe as many people fear.


Smith In Theory And Practice, Nelson Tebbe 2017 Cornell Law School

Smith In Theory And Practice, Nelson Tebbe

Nelson Tebbe

Employment Division v. Smith controversially held that general laws that were neutral toward religion would no longer be presumptively invalid, regardless of how much they incidentally burdened religious practices. That decision sparked a debate that continues today, twenty years later. This symposium Essay explores the argument that subsequent courts have in fact been less constrained by the principal rule of Smith than advocates on both sides of the controversy usually assume. Lower courts administering real world disputes often find they have all the room they need to grant relief from general laws, given exceptions written into the decision itself and ...


Nonbelievers, Nelson Tebbe 2017 Cornell Law School

Nonbelievers, Nelson Tebbe

Nelson Tebbe

How should courts handle nonbelievers who bring religious freedom claims? Although this question is easy to grasp, it presents a genuine puzzle because the religion clauses of the Constitution, along with many contemporary statutes, protect only religion by their terms. From time to time, judges and lawyers have therefore struggled with the place of nonbelievers in the American scheme of religious freedom. Today, this problem is gaining prominence because of nonbelievers’ rising visibility. New lines of social conflict are forming around them, generating disputes that have already gone legal. In this Article, I argue that no wholesale response will do ...


Government Nonendorsement, Nelson Tebbe 2017 Cornell Law School

Government Nonendorsement, Nelson Tebbe

Nelson Tebbe

What are the constitutional limits on government endorsement? Judges and scholars typically assume that when the government speaks on its own account, it faces few restrictions. In fact, they often say that the only real restriction on government speech is the Establishment Clause. On this view, officials cannot endorse, say, Christianity, but otherwise they enjoy wide latitude to promote democracy or denigrate smoking. Two doctrines and their accompanying literatures have fed this impression. First, the Court’s recent free speech cases have suggested that government speech is virtually unfettered. Second, experts on religious freedom have long assumed that there is ...


Religion And Social Coherentism, Nelson Tebbe 2017 Brooklyn Law School

Religion And Social Coherentism, Nelson Tebbe

Nelson Tebbe

Today, prominent academics are questioning the very possibility of a theory of free exercise or non-establishment. They argue that judgments in the area can only be conclusory or irrational. In contrast to such skeptics, this Essay argues that decisionmaking on questions of religious freedom can be morally justified. Two arguments constitute the Essay. Part I begins by acknowledging that skepticism has power. The skeptics rightly identify some inevitable indeterminacy, but they mistakenly argue that it necessarily signals decisionmaking that is irrational or unjustified. Their critique is especially striking because the skeptics’ prudential way of working on concrete problems actually shares ...


How To Think About Religious Freedom In An Egalitarian Age, Nelson Tebbe 2017 Cornell Law School

How To Think About Religious Freedom In An Egalitarian Age, Nelson Tebbe

Nelson Tebbe

No abstract provided.


Free Exercise And The Problem Of Symmetry, Nelson Tebbe 2017 Selected Works

Free Exercise And The Problem Of Symmetry, Nelson Tebbe

Nelson Tebbe

No abstract provided.


Government Nonedorsement, Nelson Tebbe 2017 Brooklyn Law School

Government Nonedorsement, Nelson Tebbe

Nelson Tebbe

No abstract provided.


Countersupermajoritarianism, Nelson Tebbe, Frederic Bloom 2017 Brooklyn Law School

Countersupermajoritarianism, Nelson Tebbe, Frederic Bloom

Nelson Tebbe

No abstract provided.


Nonbelievers, Nelson Tebbe 2017 Selected Works

Nonbelievers, Nelson Tebbe

Nelson Tebbe

No abstract provided.


Equal Access And The Right To Marry, Nelson Tebbe, Deborah A. Widiss 2017 Selected Works

Equal Access And The Right To Marry, Nelson Tebbe, Deborah A. Widiss

Nelson Tebbe

No abstract provided.


Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe 2017 Brooklyn Law School

Associations And The Constitution: Four Questions About Four Freedoms, Nelson Tebbe

Nelson Tebbe

No abstract provided.


Constitutional Borrowing, Nelson Tebbe, Robert Tsai 2017 Selected Works

Constitutional Borrowing, Nelson Tebbe, Robert Tsai

Nelson Tebbe

No abstract provided.


Is The Constitution Special?, Nelson Tebbe, Christopher Serkin 2017 Brooklyn Law School

Is The Constitution Special?, Nelson Tebbe, Christopher Serkin

Nelson Tebbe

No abstract provided.


Excluding Religion, Nelson Tebbe 2017 Selected Works

Excluding Religion, Nelson Tebbe

Nelson Tebbe

No abstract provided.


Putting The Restroom Debate To Rest: Addressing Title Ix And Equal Protection In G.G. Ex Rel. Grimm V. Gloucester County School Board, Alexandra A. Harriman 2017 University of Maine School of Law

Putting The Restroom Debate To Rest: Addressing Title Ix And Equal Protection In G.G. Ex Rel. Grimm V. Gloucester County School Board, Alexandra A. Harriman

Maine Law Review

Courts, legislatures, and citizens have been debating whether transgender students should use the restroom that corresponds to their biological sex, or whether they can choose to use the facilities which align with their gender identity. The Fourth Circuit decided that Title IX required the latter in G.G. ex. rel. Grimm v. Gloucester County School Board, but that didn't settle the issue. To complicate things, the Trump Administration revoked the guidance that the Fourth Circuit had relied on. This Note argues that a court should resolve this once and for all by finding that a school policy that requires ...


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