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When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand 2017 Pepperdine University

When Judges Are Theologians: Adjudicating Religious Questions, Michael A. Helfand

Michael A Helfand

In this chapter, I explore how judges—and, more generally, U.S. courts—deal with legal disputes when they must consider not only laws and facts, but also religion, or maybe even more precisely, theology. Indeed, in a wide range of circumstances, judges are confronted with cases where the outcome in some way or another requires them to issue a decision that is predicated, to varying to degrees, on a theological question upon which there is some debate. While in American law the ostensibly simple answer to this question is simply that the Constitution prohibits courts from adjudicating religious questions ...


Helfand_Implied Consent.Pdf, Michael A. Helfand 2017 Pepperdine University

Helfand_Implied Consent.Pdf, Michael A. Helfand

Michael A Helfand

One of the recent fault lines over religious liberty is the scope of protections afforded institutions and corporations that have religiously-motivated leadership. Courts and scholars all seem to agree that such religious institutions deserve some degree of protection. But the remains significant debate over the principles that should guide judicial decisions addressing in what circumstances religiously-motivated institutions should—and in what circumstances they should not—receive the law’s protection.

In this chapter, I argue for an “implied consent” framework to address religious institutional claims. Such a framework grounds the authority of religious institutions not in a degree of inherent ...


Derechos Sociales Y Políticas Públicas. El Principio De Progresividad, Rodrigo A. Poyanco Bugueño 2017 Universidad de Los Andes - Chile

Derechos Sociales Y Políticas Públicas. El Principio De Progresividad, Rodrigo A. Poyanco Bugueño

Rodrigo A. Poyanco Bugueño

Social rights involve a public policy component whose determination is outside the jurisdiction of constitutional judges. Therefore, attempts to directly adjudicate the social rights contained in constitutions encourage judges to engage in activism, evaluating elements that do not really correspond to legal interpretation, in a strict sense of the term. In order to demonstrate this assertion, this article will study some decisions of the constitutional and superior courts of Brazil, Colombia, Peru and Chile, as well as the Inter-American Court, which apply the so-called principle of progressivity in the fulfillment of social rights.


Formal And Informal Constitutional Amendment Of The United States Constitution, Richard S. Kay 2017 Selected Works

Formal And Informal Constitutional Amendment Of The United States Constitution, Richard S. Kay

Richard Kay

This is the United States report submitted for the session on Formal and Informal Constitutional Amendment at the Twentieth Congress of the International Academy of Comparative Law to be held in Fukuoka, Japan in July, 2018. The report reviews the rules of Article V of the United States Constitution that sets out the rules for constitutional amendment and it provides a brief chronology of the twenty-eight amendments adopted to date. It notes a number of potential problems of interpretation associated with Article V. The report considers the widely held assumption that the United States Constitution is one of the hardest ...


Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez 2017 New York University

Fourth Amendment Anxiety, Stephen E. Henderson, Kiel Brennan-Marquez

Stephen E Henderson

In Birchfield v. North Dakota (2016), the Supreme Court broke new Fourth Amendment ground by establishing that law enforcement’s collection of information can be cause for “anxiety,” meriting constitutional protection, even if subsequent uses of the information are tightly restricted.  This change is significant.  While the Court has long recognized the reality that police cannot always be trusted to follow constitutional rules, Birchfield changes how that concern is implemented in Fourth Amendment law, and importantly, in a manner that acknowledges the new realities of data-driven policing.
 
Beyond offering a careful reading of Birchfield, this Article has two goals.  First ...


Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson 2017 University of Oklahoma College of Law

Carpenter V. United States And The Fourth Amendment: The Best Way Forward, Stephen E. Henderson

Stephen E Henderson

We finally have a federal ‘test case.’  In Carpenter v. United States, the Supreme Court is poised to set the direction of the Fourth Amendment in the digital age.  The case squarely presents how the twentieth-century third party doctrine will fare in contemporary times, and the stakes could not be higher.  This Article reviews the Carpenter case and how it fits within the greater discussion of the Fourth Amendment third party doctrine and location surveillance, and I express a hope that the Court will be both a bit ambitious and a good measure cautious. 
 
As for ambition, the Court must ...


What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler 2017 University of Pennsylvania Law School

What Congress's Repeal Efforts Can Teach Us About Regulatory Reform, Cary Coglianese, Gabriel Scheffler

Faculty Scholarship

Major legislative actions during the early part of the 115th Congress have undermined the central argument for regulatory reform measures such as the REINS Act, a bill that would require congressional approval of all new major regulations. Proponents of the REINS Act argue that it would make the federal regulatory system more democratic by shifting responsibility for regulatory decisions away from unelected bureaucrats and toward the people’s representatives in Congress. But separate legislative actions in the opening of the 115th Congress only call this argument into question. Congress’s most significant initiatives during this period — its derailed attempts to ...


Ohio's Modern Courts Amendment Must Be Amended: Why And How, Richard S. Walinski, Mark D. Wagoner Jr. 2017 Thacker Robinson Zinz LPA

Ohio's Modern Courts Amendment Must Be Amended: Why And How, Richard S. Walinski, Mark D. Wagoner Jr.

Cleveland State Law Review

A 1968 amendment to the Ohio Constitution granted the Supreme Court of Ohio the authority to promulgate “rules governing practice and procedure” for Ohio courts. The amendment also provided that “[a]ll laws in conflict with such rules shall be of no further force or effect after such rules have taken effect” and that no rule may “abridge, enlarge, or modify any substantive right.”

Although the amendment was explicit about automatic repeal of existing laws, it says nothing about whether the General Assembly may legislate on a procedural matter after a court rule takes effect. That silence has caused enduring ...


Stuck In Ohio's Legal Limbo, How Many Mistrials Are Too Many Mistrials?: Exploring New Factors That Help A Trial Judge In Ohio Know Whether To Exercise Her Authority To Dismiss An Indictment With Prejudice, Especially Following Repeated Hung Juries, Samantha M. Cira 2017 Cleveland-Marshall College of Law

Stuck In Ohio's Legal Limbo, How Many Mistrials Are Too Many Mistrials?: Exploring New Factors That Help A Trial Judge In Ohio Know Whether To Exercise Her Authority To Dismiss An Indictment With Prejudice, Especially Following Repeated Hung Juries, Samantha M. Cira

Cleveland State Law Review

Multiple mistrials following validly-prosecuted trials are becoming an increasingly harsh reality in today’s criminal justice system. Currently, the Ohio Supreme Court has not provided any guidelines to help its trial judges know when to make the crucial decision to dismiss an indictment with prejudice following a string of properly-declared mistrials, especially due to repeated hung juries. Despite multiple mistrials that continue to result in no conviction, criminal defendants often languish behind bars, suffering detrimental psychological harm and a loss of personal freedom as they remain in “legal limbo” waiting to retry their case. Furthermore, continuously retrying defendants cuts against ...


Eureka County V. Seventh Judicial Dist. Ct., 133 Nev. Adv. Op. 111 (Dec. 28, 2017), Michelle Harnik 2017 University of Nevada, Las Vegas -- William S. Boyd School of Law

Eureka County V. Seventh Judicial Dist. Ct., 133 Nev. Adv. Op. 111 (Dec. 28, 2017), Michelle Harnik

Nevada Supreme Court Summaries

The Court determined that due process requires junior water rights holders be given notice and an opportunity to be heard in the district court’s consideration of a senior water rights holder’s request to curtail the junior’s water rights.


The Jewish Family – Between Family Law And Contract Law, yehezkel Margalit 2017 Netanya Academic College

The Jewish Family – Between Family Law And Contract Law, Yehezkel Margalit

Hezi Margalit

Traditional Jewish family law has persevered for hundreds of years and rules covering marriage, the raising of children, and divorce are well established; yet pressures from modern society are causing long held views to be re-examined. The Jewish Family: Between Family Law and Contract Law examines the tenets of Jewish family law in the light of new attitudes concerning the role of women, assisted reproduction technologies, and prenuptial agreements. It explores, through interdisciplinary research combining the legal aspects of family law and contract law, how the Jewish family can cope with both old and modern obstacles and challenges. Focusing on ...


Franchise Tax Board Of California V. Hyatt, 133 Nev. Adv. Op. 102 (Dec. 26, 2017), Rebecca L. Crooker 2017 University of Nevada, Las Vegas -- William S. Boyd School of Law

Franchise Tax Board Of California V. Hyatt, 133 Nev. Adv. Op. 102 (Dec. 26, 2017), Rebecca L. Crooker

Nevada Supreme Court Summaries

The Court determined that discretionary-function immunity does not apply to intentional tort and bad faith claims. Under comity principles, the Franchise Tax Board was entitled to the $50,000 statutory cap that would extend to Nevada businesses under NRS 41.035(1). The Court additionally recognized false light invasion of privacy as a tort cause of action distinct from other privacy torts, and adopted the Restatement’s sliding-scale approach in determining the amount of evidence necessary to establish a claim for intentional infliction of emotional distress.


Constitutional Barriers To Congressional Reform, John M. Greabe 2017 University of New Hampshire School of Law

Constitutional Barriers To Congressional Reform, John M. Greabe

Law Faculty Scholarship

Americans celebrate our Constitution as a beacon that can guide us through difficult situations. And justly so. But at times, the Constitution also has stood as a barrier to necessary reform.


Dance Of Numbers: Social Insurance And Social Security After Federal Court Of Accounts’ Auditing Report (2017), Carlos Luiz Strapazzon 2017 Western University of Santa Catarina State (UNOESC); University Positivo School of Law

Dance Of Numbers: Social Insurance And Social Security After Federal Court Of Accounts’ Auditing Report (2017), Carlos Luiz Strapazzon

Carlos Luiz Strapazzon

This paper discusses the audit report conducted by the Federal Court of Accounts (TCU) in the Brazilian Social Security system. On 2017 (June) the Court of Accounts released the Report No. 1295/2017 (TC 001.040/2017-0). The aim of the audit was to ascertain information upon the counts, the management and, particularly, upon the existence (or not) of financial deficit. The audit has considered data from 10 years now, reaching the period from 2007 to 2016. All so-called "social security regimes" administered by the Federal Government that integrate the concept of Social Security in Brazil were audited. This study ...


Archon Corp., Vs. Eighth Judicial Dist. Court, 133 Nev. Adv. Op. 101 (December 21, 2017), Landon Littlefield 2017 University of Nevada, Las Vegas -- William S. Boyd School of Law

Archon Corp., Vs. Eighth Judicial Dist. Court, 133 Nev. Adv. Op. 101 (December 21, 2017), Landon Littlefield

Nevada Supreme Court Summaries

The Nevada Supreme Court denied Archon Corporation’s petition for a writ of mandamus or prohibition challenging the denial of a motion to dismiss based on tolling of the statute of limitations. The court declined relief for the following three reasons; the statute-based argument that petitioners made to this court was not considered by the lower court, the court’s clarification of the law would alter the district court’s disposition because the district court made its decision on alternative grounds, and finally, because the district court denied the motion to dismiss without prejudice.


Herr V. U.S. Forest Service, Peter B. Taylor 2017 Alexander Blewett III School of Law at the University of Montana

Herr V. U.S. Forest Service, Peter B. Taylor

Public Land and Resources Law Review

In Herr v. U. S. Forest Service, the Sixth Circuit ruled on whether the Forest Service could infringe on pre-existing private property rights held adjacent to a designated Wilderness Area. The Herrs purchased lakefront property adjacent to the Sylvania Wilderness in the Upper Peninsula of Michigan with the intention of using their littoral rights for recreational boating. The Sylvania Wilderness was created under the Michigan Wilderness Act in 1987, but the Act observed valid existing rights. The court found that the Herrs’ littoral rights were recognizable “valid existing rights.” Therefore, the Forest Service’s restriction of those rights was illegal.


National Labor Relations Board V. Murphy Oil Usa, Inc.: A Test Of Might, Elizabeth Storey 2017 Duke Law

National Labor Relations Board V. Murphy Oil Usa, Inc.: A Test Of Might, Elizabeth Storey

Duke Journal of Constitutional Law & Public Policy Sidebar

National Labor Relations Board v. Murphy Oil USA pits two co-equal federal statutes head-to-head. The Federal Arbitration Act mandates that all arbitration clauses be enforced. The National Labor Relations Act grants employees the right to act collectively to bring claims against employers. The Supreme Court must decide whether arbitration clauses in employment contracts, which require employees to arbitrate work-related disputes on an individual basis, contravene the interests of the NLRA. This commentary argues that the Supreme Court should recognize how these arbitration clauses undermine and subvert the protections of the NLRA by disallowing employees to act collectively. By invoking the ...


Postmodern Social Control: Dividuals And Surveillance, Ernest M. Oleksy 2017 Cleveland State University

Postmodern Social Control: Dividuals And Surveillance, Ernest M. Oleksy

The Downtown Review

As a society's foundational philosophy changes, so, too, will its forms of social control. By using the works of thinkers like Deleuze and Foucault as pivot points, the dynamic nature of social interactions and the agents to mediate those actions shall be investigated. This article includes findings from archival analysis written in a journalistic prose for simplicity of consumption.


Inseparable: Perspective Of Senator Daniel Webster, Ernest M. Oleksy 2017 Cleveland State University

Inseparable: Perspective Of Senator Daniel Webster, Ernest M. Oleksy

The Downtown Review

Considering the hypersensitivity that their nation has towards race relations, it is often ineffable to contemporary Americans as to how anyone could have argued against abolition in the 19th century. However, by taking the perspective of Senator Daniel Webster speaking to an audience of disunionist-abolitionists, proslaveryites, and various shades of moderates, numerous points of contention will be brought to light as to why chattel slavery persisted so long in the U.S. Focal points of dialogue will include the Narrative of Frederick Douglass, the "positive good" claims of Senator John C. Calhoun, the disunionism of William Lloyd Garrison, and the ...


Political Science Professor’S Book Gets Chinese Translation, 2017 Selected Works

Political Science Professor’S Book Gets Chinese Translation

Gary L. Rose

A Chinese firm, Rightol Media Limited, will publish a translated version of Sacred Heart University Professor Gary Rose's book, Shaping a Nation, which delves into 25 Supreme Court cases that had major effects on the United States.


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