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Congressional Power To Regulate Sex Discrimination: The Effect Of The Supreme Court's "New Federalism", Calvin Massey 2017 University of Maine School of Law

Congressional Power To Regulate Sex Discrimination: The Effect Of The Supreme Court's "New Federalism", Calvin Massey

Maine Law Review

Congressional power to prevent and remedy sex discrimination in employment has been founded almost entirely upon the commerce power and Section 5 of the Fourteenth Amendment, which gives Congress power “to enforce, by appropriate legislation” the equal protection guarantee. The commerce power has enabled Congress to prohibit private sex discrimination in employment, and the combination of the commerce and enforcement powers has enabled Congress to prohibit such sex discrimination by public employers. From the late 1930s until the early 1990s the doctrinal architecture of these powers was relatively stable, even if statutory action to realize the promise of a nondiscriminatory ...


How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of “A Condition Analogous To That Of A Slave” In Modern Brazil, Rebecca J. Scott, Leonardo Augusto de Andrade Barbosa, Carlos Henrique Borlido Haddad 2017 Duke Law

How Does The Law Put A Historical Analogy To Work?: Defining The Imposition Of “A Condition Analogous To That Of A Slave” In Modern Brazil, Rebecca J. Scott, Leonardo Augusto De Andrade Barbosa, Carlos Henrique Borlido Haddad

Duke Journal of Constitutional Law & Public Policy

No abstract provided.


Tahoe-Sierra Preservation Council, Inc. V. Tahoe Regional Planning Agency: The Reemergence Of Penn Central And A Healthy Reluctance To Craft Per Se Regulatory Takings Rules, Philip R. Saucier 2017 University of Maine School of Law

Tahoe-Sierra Preservation Council, Inc. V. Tahoe Regional Planning Agency: The Reemergence Of Penn Central And A Healthy Reluctance To Craft Per Se Regulatory Takings Rules, Philip R. Saucier

Maine Law Review

In Tahoe-Sierra Preservation Council, Inc. v. Tahoe Regional Planning Agency, the Supreme Court held that a moratorium on development imposed during the process of devising a comprehensive land use plan did not constitute a per se taking of property requiring compensation under the Takings Clause of the United States Constitution. The scope of Tahoe-Sierra, and thus its ultimate impact on Supreme Court takings jurisprudence, had been severely narrowed and redefined by the courts since the landowners first alleged a taking over fifteen years before the issue was ultimately decided by the Supreme Court. It is important to note that this ...


Beyond The Reach Of States: The Dormant Commerce Clause, Extraterritorial State Regulation, And The Concerns Of Federalism, Peter C. Felmly 2017 University of Maine School of Law

Beyond The Reach Of States: The Dormant Commerce Clause, Extraterritorial State Regulation, And The Concerns Of Federalism, Peter C. Felmly

Maine Law Review

The Commerce Clause of the United States Constitution provides that “[t]he Congress shall have Power ... [t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Interpreting this explicit grant of power to Congress, the Supreme Court has long recognized the existence of an implied limitation on the power of a state to legislate in areas of interstate commerce when Congress has remained silent. Under what is referred to as the negative or “dormant” Commerce Clause, the federal courts have thus scrutinized state legislation for well over one hundred years. In the past ...


Sessions V. Dimaya: Vagueness Doctrine & Deportation Statutes, Matthew Gibbons 2017 Duke Law

Sessions V. Dimaya: Vagueness Doctrine & Deportation Statutes, Matthew Gibbons

Duke Journal of Constitutional Law & Public Policy Sidebar

Sessions v. Dimaya seeks to determine whether the residual clause of a criminal provision, incorporated by reference into a civil immigration law, is void for vagueness. Although there is an instance of the Supreme Court applying the criminal vagueness standard to an immigration statute resulting in deportation, the United States argues that immigration law is not subject to that vagueness standard because it is civil and not criminal. This commentary argues that Sessions v. Dimaya presents the Supreme Court with an opportunity to conform with its precedents, further the principles underlying vagueness doctrine, and appear to apply judicial rules consistently ...


Half-Based Discrimination Against Gays, Alan E. Garfield 2017 Widener Law

Half-Based Discrimination Against Gays, Alan E. Garfield

Alan E Garfield

No abstract provided.


Rationalizing Rational Basis Review, Todd W. Shaw 2017 Northwestern Pritzker School of Law

Rationalizing Rational Basis Review, Todd W. Shaw

Northwestern University Law Review

As a government attorney defending economic legislation from a constitutional challenge under the Fourteenth Amendment—How would you rate your chances of success? Surely excellent. After all, hornbook constitutional law requires only the assembly of a flimsy underlying factual record for economic legislation to pass rational basis review.

But the recent uptick in courts questioning the credibility of legislative records might give pause to your optimism. As a growing body of scholarship has identified, the Supreme Court and federal courts of appeals increasingly invalidate laws under rational basis review despite the presence of an otherwise constitutionally sufficient legislative record. Under ...


Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang 2017 Emory University School of Law

Gerrymandering And The Constitutional Norm Against Government Partisanship, Michael S. Kang

Michigan Law Review

This Article challenges the basic premise in the law of gerrymandering that partisanship is a constitutional government purpose at all. The central problem, Justice Scalia once explained in Vieth v. Jubilerer, is that partisan gerrymandering becomes unconstitutional only when it “has gone too far,” giving rise to the intractable inquiry into “how much is too much.” But the premise that partisanship is an ordinary and lawful purpose, articulated confidently as settled law and widely understood as such, is largely wrong as constitutional doctrine. The Article surveys constitutional law to demonstrate the vitality of an important, if implicit norm against government ...


Constitutional Conflict And The Development Of Canadian Aboriginal Law, Guy Charlton, Xiang Gao 2017 Auckland University of Technology

Constitutional Conflict And The Development Of Canadian Aboriginal Law, Guy Charlton, Xiang Gao

The University of Notre Dame Australia Law Review

This paper argues that aboriginal rights in Canada have been greatly affected by 19 th century governmental and social conflicts within the Canadian colonial state. These conflicts, largely over the ownership of land and regulatory authority between the federal government and the provinces necessarily impacted the First Nations on the ground while affecting how their legal claims were recognized and implemented. In particular they impacted the legal efficacy of treaty rights, the scope of rights recognised by the courts and an expansive legally protected notion of indigenous sovereignty. As a result, the rights now protected under sec. 25 and 35 ...


The Fragility Of The Free American Press, RonNell Anderson Jones, Sonja R. West 2017 University of Utah S.J. Quinney College of Law

The Fragility Of The Free American Press, Ronnell Anderson Jones, Sonja R. West

Northwestern University Law Review

President Donald Trump has faced criticism for attacking the press and for abandoning longstanding traditions of accommodating and respecting it. This Essay argues that the national discussion spurred by Trump’s treatment of the press has fallen short of capturing the true seriousness of the situation. Trump’s assault on the custom of press accommodation follows a generation-long collapse of other major press protections. In order to fully understand the critical juncture at which American press freedom now stands, we must expand the discussion beyond talk of a rogue president’s aberrant attacks on the press and consider the increasingly ...


Due Process Abroad, Nathan S. Chapman 2017 University of Georgia School of Law

Due Process Abroad, Nathan S. Chapman

Northwestern University Law Review

Defining the scope of the Constitution’s application outside U.S. territory is more important than ever. In February, the Supreme Court heard oral argument about whether the Constitution applies when a U.S. officer shoots a Mexican teenager across the border. At the same time, federal courts across the country scrambled to evaluate the constitutionality of an Executive Order that, among other things, deprived immigrants of their right to reenter the United States. Yet the extraterritorial reach of the Due Process Clause—the broadest constitutional limit on the government’s authority to deprive persons of “life, liberty, or property ...


Justice Scalia's Other Standing Legacy, Tara Leigh Grove 2017 William & Mary Law School

Justice Scalia's Other Standing Legacy, Tara Leigh Grove

Faculty Publications

No abstract provided.


La Hiperinflación De Los Derechos Fundamentales: Consideraciones Sobre Sus Límites, Potencialidades Y Sobre Su Relativa Indisponibilidad, Juan Carlos Riofrío Martínez-Villalba 2017 Universidad de los Hemisferios

La Hiperinflación De Los Derechos Fundamentales: Consideraciones Sobre Sus Límites, Potencialidades Y Sobre Su Relativa Indisponibilidad, Juan Carlos Riofrío Martínez-Villalba

Juan Carlos Riofrío Martínez-Villalba

Se consideran aquí los aspectos potenciales de los derechos humanos y constitucionales, para luego deducir las respectivas consecuencias. El capítulo I muestra la incongruencia de que todo derecho (incluido el derecho al sombrero, a una merienda proporcionada y al trato cálido) sea indisponible. El capítulo II define los elementos esenciales que todo derecho subjetivo debe tener para serlo. El capítulo III distingue los derechos subjetivos realizados (actuales), de los hipotéticos (potenciales): solo hay derecho realizado si en la realidad cotidiana alguien puede exigir algo a otro; antes solo será una posibilidad, una hipótesis de trabajo más o menos justificada en ...


Secession And Federalism In The United States: Tools For Managing Regional Conflict In A Pluralist Society, Erin Ryan 2017 Florida State University College of Law

Secession And Federalism In The United States: Tools For Managing Regional Conflict In A Pluralist Society, Erin Ryan

Erin Ryan

This Article explores the use of federalism and secession as tools for managing regional conflict within pluralist governance, drawing on underappreciated features of the American experience.  Epic struggles to balance autonomy with interdependence have taken on new urgency as dissatisfaction with globalization inspires political cataclysms unimaginable just a few years ago—including ‘Brexit’ from the European Union and American threats to leave NATO.  The same impetus toward devolution also surfaces in heated intra-national conflicts.  Recent calls for secession in Catalonia, Iraqi Kurdistan, Scotland, Québec, South Sudan, and even the United States reveal multiple political contexts in which questions have been ...


Ideal Theory And The Limits Of Historical Narrative, Anthony O'Rourke 2017 Columbia Law School

Ideal Theory And The Limits Of Historical Narrative, Anthony O'Rourke

Anthony O'Rourke

Some intellectual concepts that once played a central role in America’s constitutional history are, for both better and worse, no longer part of our political language.[1] These concepts may be so alien to us that they would remain invisible without carefully reexamining the past in order to challenge the received narratives of America’s constitutional development.[2] Should constitutional theorists undertake this kind of historical reexamination? If so, to what extent should they be willing to stray from the disciplinary norms that govern intellectual history? And what normative aims can they reasonably expect to achieve by exploring ideas ...


Conant V. Walters: A Misapplication Of Free Speech Rights In The Doctor-Patient Relationship, Katharine M. McCarthy 2017 University of Maine School of Law

Conant V. Walters: A Misapplication Of Free Speech Rights In The Doctor-Patient Relationship, Katharine M. Mccarthy

Maine Law Review

In Conant v. Walters, the United States Court of Appeals for the Ninth Circuit addressed the application of the First Amendment's right of free speech to a federal policy that prohibited the recommendation of medical marijuana by physicians. This class action suit, brought by physicians and severely ill patients, successfully enjoined the federal government from enforcing its policy revoking the federal prescriptive licenses of physicians who recommend or approve of marijuana use by patients suffering from certain severe illnesses. The federal government's policy, issued in 1996 through a statement of Barry McCaffrey, director of the Office of National ...


The Justice Against Sponsors Of Terrorism Act: An Infringement On Executive Power, Dan Cahill 2017 Boston College Law School

The Justice Against Sponsors Of Terrorism Act: An Infringement On Executive Power, Dan Cahill

Boston College Law Review

In the more than sixteen years since September 11, 2001, the United States has resolved, through policy at home and abroad, to vindicate the heroes and victims of that attack. From the creation of the Department of Homeland Security, to the raid that resulted in the death of Osama Bin Laden, the shockwaves of 9/11 have reverberated through America’s domestic and foreign policy ever since. In the only veto override of the Obama presidency, the 114th U.S. Congress brought the Justice Against Sponsors of Terrorism Act (“JASTA”) into force, intending to provide U.S. citizens with a ...


Creating The Public Forum, Samantha Barbas 2017 Selected Works

Creating The Public Forum, Samantha Barbas

Samantha Barbas

This article describes the development of the public forum doctrine in the context of a larger story about the nation’s efforts in this period to come to terms with its first modern crisis of communication...The public forum is both a site for public debate and a means of communication for the less privileged. In the 1930s and 1940s, intellectuals and activists sought to enlist the state in the creation of “public forums” on the radio, in print journalism, and in public space. This article examines this public forum movement and its enduring impact on the free speech doctrine ...


Sexual Misconduct And Congressional Self-Governance, John M. Greabe 2017 University of New Hampshire School of Law

Sexual Misconduct And Congressional Self-Governance, John M. Greabe

Legal Scholarship

[Excerpt] "Over the past year, a number of prominent politicians (including President Donald Trump) have been publicly accused of serious sexual misconduct and abuse of power. The question therefore has arisen: Can these politicians either be barred from taking office or removed from office on the basis of these accusations?

There is only way to remove a sitting president: impeachment by the House of Representatives and conviction by the Senate. But the topic of impeaching and removing a president warrants its own column. This column will instead focus on what Congress may do when its members and members-elect face charges ...


An Examination Of The Instruction Of Religion Clause Issues In Massachusetts Teacher Education Programs, Matthew E. Henry 2017 Lesley University

An Examination Of The Instruction Of Religion Clause Issues In Massachusetts Teacher Education Programs, Matthew E. Henry

Educational Studies Dissertations

The prevailing research, as well as reported complaints of academic, civic, personal, and social harm, indicates that public school teachers do not exhibit the professional knowledge, skills, and attitudes grounded in the religion clauses of the U.S. Constitution. This study investigated how TEPs in the Commonwealth of Massachusetts document their instruction of preservice teachers on religion clause issues as they apply to grade 6-12 content area pedagogy, curriculum, and professional ethos. The institutional documents presented to preservice teachers were collected from four teacher education programs in the Commonwealth. An evaluation tool— synthesized from the leading scholarship and research on ...


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