Holmes And Dissent,
2011
Huntingdon College; Faulkner University; Supreme Court of Alabama
Holmes And Dissent, Allen P. Mendenhall
Allen Mendenhall
Holmes saw the dissent as a mechanism to advance and preserve arguments and as a pageant for wordplay. Dissents, for Holmes, occupied an interstitial space between law and non-law. The thought and theory of pragmatism allowed him to recreate the dissent as a stage for performative text, a place where signs and syntax could mimic the environment of the particular time and place and in so doing become, or strive to become, law. Holmes’s dissents were sites of aesthetic adaptation. The language of his dissents was acrobatic. It acted and reacted and called attention to itself. The more provocative and …
Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders,
2011
Pepperdine University
Religious Arbitration And The New Multiculturalism: Negotiating Conflicting Legal Orders, Michael A. Helfand
Michael A Helfand
This Article considers a trend towards what I have termed the "new multiculturalism," where conflicts between law and religion are less about recognition and symbolism and more about conflicting legal orders. Nothing typifies this trend more than the increased visibility of religious arbitration, whereby religious groups use current arbitration doctrine to have their disputes adjudicated not in U.S. courts and under U.S. law, but before religious courts and under religious law. This dynamic has pushed the following question to the forefront of the multicultural agenda: under what circumstances should U.S. courts enforce arbitration awards issued by religious courts in accordance …
Hosanna-Tabor And Supreme Court Precedent: An Analysis Of The Ministerial Exception In The Context Of The Supreme Court’S Hands-Off Approach To Religious Doctrine,
2011
Touro Law Center
Hosanna-Tabor And Supreme Court Precedent: An Analysis Of The Ministerial Exception In The Context Of The Supreme Court’S Hands-Off Approach To Religious Doctrine, Samuel J. Levine
Samuel J. Levine
The United States Supreme Court‘s review of the decision of the United States Court of Appeals for the Sixth Circuit in the case of Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC could lead to a major development in the Court‘s Religion Clause jurisprudence. On one level, Hosanna-Tabor presents important questions regarding the interrelationship between employment discrimination laws and the constitutional rights of religious organizations. The narrow issue at the center of the case is the ministerial exception, a doctrine that precludes courts from adjudicating discrimination claims arising out of disputes between religious institutions and their ministerial employees. This Essay …
Getting Time For An Acquitted Crime: The Unconstitutional Use Of Acquitted Conduct At Sentencing And New York's Call For Change,
2011
Touro University Jacob D. Fuchsberg Law Center
Getting Time For An Acquitted Crime: The Unconstitutional Use Of Acquitted Conduct At Sentencing And New York's Call For Change, Megan Sterback
Touro Law Review
No abstract provided.
Claims Of Ineffective Assistance Of Counsel: The Clash Of The Federal And New York State Constitutions,
2011
Touro University Jacob D. Fuchsberg Law Center
Claims Of Ineffective Assistance Of Counsel: The Clash Of The Federal And New York State Constitutions, Timothy M. Riselvato
Touro Law Review
No abstract provided.
Students' Fourth Amendment Rights In Schools: Strip Searches, Drug Tests, And More,
2011
Touro University Jacob D. Fuchsberg Law Center
Students' Fourth Amendment Rights In Schools: Strip Searches, Drug Tests, And More, Emily Gold Waldman
Touro Law Review
No abstract provided.
November 28, 2011: Death For The Hallowed Secularist,
2011
Duquesne University
November 28, 2011: Death For The Hallowed Secularist, Bruce Ledewitz
Hallowed Secularism
Blog post, “ Death for the Hallowed Secularist“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Perfectly Legal To Mandate The Purchase Of Insurance,
2011
Widener Law
Perfectly Legal To Mandate The Purchase Of Insurance, Alan E. Garfield
Alan E Garfield
No abstract provided.
November 24, 2011: Happy Secular Thanksgiving,
2011
Duquesne University
November 24, 2011: Happy Secular Thanksgiving, Bruce Ledewitz
Hallowed Secularism
Blog post, “Happy Secular Thanksgiving“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
November 23, 2011: Obama To Side With The Bishops,
2011
Duquesne University
November 23, 2011: Obama To Side With The Bishops, Bruce Ledewitz
Hallowed Secularism
Blog post, “Obama to Side With the Bishops“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Marbury Versus Madison: Documents And Commentary,
2011
University of Maryland Francis King Carey School of Law
Marbury Versus Madison: Documents And Commentary, Mark Graber, Michael Perhac
Mark Graber
Marbury versus Madison combines documents and analytical essays timed for the bicentennial year (2003) of one of the most important Supreme Court cases. This timely collection will explain: the constitutional, political, philosophical background to judicial review the historical record leading to this landmark case the impact of the decision since 1803 its impact on the world stage, especially for new and emerging democratic nations. Also includes a listing of all the Supreme Court cases citing Marbury an an annotated Marbury v. Madison.
Rethinking Abortion: Equal Choice, The Constitution, And Reproductive Politics,
2011
University of Maryland Francis King Carey School of Law
Rethinking Abortion: Equal Choice, The Constitution, And Reproductive Politics, Mark Graber
Mark Graber
Mark Graber looks at the history of abortion law in action to argue that the only defensible, constitutional approach to the issue is to afford all women equal choice--abortion should remain legal or bans should be strictly enforced. Steering away from metaphysical critiques of privacy, Graber compares the philosophical, constitutional, and democratic merits of the two systems of abortion regulation witnessed in the twentieth century: pre-Roe v. Wade statutory prohibitions on abortion and Roe's ban on significant state interference with the market for safe abortion services. He demonstrates that before Roe, pro-life measures were selectively and erratically administered, thereby …
Dred Scott And The Problem Of Constitutional Evil,
2011
University of Maryland Francis King Carey School of Law
Dred Scott And The Problem Of Constitutional Evil, Mark Graber
Mark Graber
Dred Scott and the Problem of Constitutional Evil concerns what is entailed by pledging allegiance to a constitutional text and tradition saturated with concessions to evil. The Constitution of the United States was originally understood as an effort to mediate controversies between persons who disputed fundamental values, and did not offer a vision of the good society. In order to form a "more perfect union" with slaveholders, late-eighteenth-century citizens fashioned a constitution that plainly compelled some injustices and was silent or ambiguous on other questions of fundamental right. This constitutional relationship could survive only as long as a bisectional consensus …
Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?,
2011
Boston College Law School
Political Judges And Popular Justice: A Conservative Victory Or A Conservative Dilemma?, George D. Brown
George D. Brown
Most of the judges in America are elected. Yet the institution of the elected judiciary is in trouble, perhaps in crisis. The pressures of campaigning, particularly raising money, have produced an intensity of electioneering that many observers see as damaging to the institution itself. In an extraordinary development, four justices of the Supreme Court recently expressed concern over possible loss of trust in state judicial systems. Yet mechanisms that states have put in place to strike a balance between the accountability values of an elected judiciary and rule of law values of unbiased adjudication are increasingly invalidated by the federal …
Putting Watergate Behind Us: Salinas, Sun-Diamond, And Two Views Of The Anticorruption Model,
2011
Boston College Law School
Putting Watergate Behind Us: Salinas, Sun-Diamond, And Two Views Of The Anticorruption Model, George D. Brown
George D. Brown
A central question in the ongoing debate over the future of the American political system is how to deal with public corruption. This Article first examines the dominant theme of the last thirty years: a relatively hard-line approach that Professor Brown refers to as the post-watergate concensus. In recent years, however, this approach has been subject to growing criminalization of government ethics; Professor Brown then turns to what can be viewed as the counterrevolutionary critique. Against this background, he considers the United States Supreme Court's contribution to the debate. Starting with the recent Sun-Diamond and Salinas cases, and drawing from …
Accountability, Liability, And The War On Terror -- Constitutional Tort Suits As Truth And Reconciliation Vehicles,
2011
Boston College Law School
Accountability, Liability, And The War On Terror -- Constitutional Tort Suits As Truth And Reconciliation Vehicles, George D. Brown
George D. Brown
This Article examines the role of civil suits in providing accountability for the Bush administration's conduct of the "war on terror." There have been calls for a "Truth and Reconciliation Commission" to perform this function, almost like a retroactive impeachment of President Bush. For now, the idea appears to be dead, especially since many of the policies have continued under President Obama. Increasingly, the default accountability mechanism for questioning government conduct is the array of civil suits against federal officials by self-proclaimed victims of the war, cases which might be referred to as reverse war on terror suits. Many of …
Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent,
2011
Washington and Lee University School of Law
Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent, Doug Rendleman, Douglas Laycock
Scholarly Articles
Restitution may be a casualty in a collision with the constitutional law of standing. Article III is traditionally said to require an “injury in fact” for standing to be a plaintiff in federal court. Edwards, who alleges that First American paid a bribe or kickback in violation of the federal Real Estate Settlement Procedures Act, seeks to recover the statutory penalty. Defendant argues that even if it violated the Act, Edwards suffered no “injury in fact.” Our amicus brief in support of Edwards alerts the Supreme Court to the many restitutionary claims either for a wrongdoer’s profits or to set …
Golan V. Holder: Congressional Power Under The Copyright Clause And The First Amendment,
2011
Duke Law
Golan V. Holder: Congressional Power Under The Copyright Clause And The First Amendment, Claire Fong
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
It’S My Church And I Can Retaliate If I Want To: Hosanna-Tabor And The Future Of The Ministerial Exception,
2011
Duke Law
It’S My Church And I Can Retaliate If I Want To: Hosanna-Tabor And The Future Of The Ministerial Exception, Brad Turner
Duke Journal of Constitutional Law & Public Policy Sidebar
No abstract provided.
Electronic Contracts In Tanzania: An Appraisal Of The Legal Framework,
2011
St. Augustine University of Tanzania
Electronic Contracts In Tanzania: An Appraisal Of The Legal Framework, Daudi Mwita Nyamaka Mr.
Daudi Mwita Nyamaka Mr.
The concern of our study was to examine the legal basis for electronic contracts in Tanzania. The major problems that were being examined are; the ascertainment of e-contract terms and the other party in the contract with the focus to consent i.e. consensus ad idem requirements and capacity to contract. With the first problem, e-commerce involves e-contracts and the business community in Tanzania enters into contractual arrangements with external world via websites or email in which case the electronic environment is not suitable in Tanzania in terms of the laws and the technology. Messages sent via internet may be garbled …
