Historically Unappealing: Boumediene V. Bush, Appellate Avoidance Mechanisms, And Black Holes Extending Beyond Guantanamo Bay, 2015 College of William & Mary Law School
Historically Unappealing: Boumediene V. Bush, Appellate Avoidance Mechanisms, And Black Holes Extending Beyond Guantanamo Bay, Dennis Schmelzer
William & Mary Bill of Rights Journal
No abstract provided.
From Reynolds To Lawrence To Brown V. Buhman: Antipolygamy Statutes Sliding On The Slippery Slope Of Same-Sex Marriage, 2015 Univerisity of Texas at Arlington
From Reynolds To Lawrence To Brown V. Buhman: Antipolygamy Statutes Sliding On The Slippery Slope Of Same-Sex Marriage, Stephen L. Baskind
Stephen L Baskind
In 2003 in Lawrence v. Texas (striking Texas’ sodomy law), Justice Scalia predicted in his dissent the end of all morals legislation. If Justice Scalia is correct most, if not all, morals-based legislation may fall. For example, in recent years state laws prohibiting same-sex marriage have fallen to constitutional challenges. Ten years after Lawrence in 2013, a Utah Federal District Court in Brown v. Buhman, though feeling constrained by the 1878 Reynolds case (which rejected a First Amendment challenge to an antipolygamy law), nevertheless at the request of a polygamous family concluded that the cohabitation prong of Utah’s anti-bigamy ...
The Right To Vote Of Non-Resident Citizens: A Comparative Study Of The Federal Republic Of Germany And The United States Of America, 2015 University of Georgia School of Law
The Right To Vote Of Non-Resident Citizens: A Comparative Study Of The Federal Republic Of Germany And The United States Of America, Robert Dilworth, Frank Montag
Georgia Journal of International & Comparative Law
No abstract provided.
Court Of Appeals Of New York, People V. Brown, 2015 Touro College Jacob D. Fuchsberg Law Center
Court Of Appeals Of New York, People V. Brown, Melanie Hendry
Touro Law Review
No abstract provided.
Appellate Division, Fourth Department, People V. Allen, 2015 Touro College Jacob D. Fuchsberg Law Center
Appellate Division, Fourth Department, People V. Allen, Joaquin Orellana
Touro Law Review
No abstract provided.
The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, 2015 Harvard University
The Hypocrisy Of "Equal But Separate" In The Courtroom: A Lens For The Civil Rights Era, Jaimie K. Mcfarlin
Jaimie K. McFarlin
This article serves to examine the role of the courthouse during the Jim Crow Era and the early stages of the Civil Rights Movement, as courthouses fulfilled their dual function of minstreling Plessy’s call for “equality under the law” and orchestrating overt segregation.
Twelve Angry Hours: Improving Domestic Violence Holds In Tennessee Without Risk Of Violating The Constitution, Daniel A. Horwitz
Daniel A. Horwitz
Tennessee law currently provides that individuals who have been arrested for certain domestic violence offenses “shall not be released within twelve (12) hours of arrest if the magistrate or other official duly authorized to release the offender finds that the offender is a threat to the alleged victim.” However, Tennessee law also provides for an exception to this “12-hour hold” requirement that permits judges to release domestic violence arrestees before twelve hours have elapsed “if the official determines that sufficient time has or will have elapsed for the victim to be protected.”
Following an especially high-profile incident of domestic violence ...
Fundamental Unenumerated Rights Under The Ninth Amendment And Privileges Or Immunities Clause, 2015 Indiana Tech Law School
Fundamental Unenumerated Rights Under The Ninth Amendment And Privileges Or Immunities Clause, Adam Lamparello
The failure to link the Ninth Amendment and Privileges or Immunities Clause for the purpose of creating unenumerated fundamental rights has been a persistent but rarely discussed aspect of the Court’s jurisprudence. That should change. There need not be an ongoing tension between the Court’s counter-majoritarian role and the authority of states to govern through the democratic process. If the Constitution’s text gives the Court a solid foundation upon which to recognize new rights and thereby create a more just society, then the exercise of that power is fundamentally democratic. The Ninth Amendment and Privileges or Immunities ...
Person, State Or Not: The Place Of Business Corporations In Our Constitutional Order, 2015 Hofstra University, Deane School of Law
Person, State Or Not: The Place Of Business Corporations In Our Constitutional Order, Daniel J.H. Greenwood
Daniel J.H. Greenwood
Business corporations are critical institutions in our democratic republican market-based economic order. The United States Constitution, however, is completely silent as to their status in our system. The Supreme Court has filled this silence by repeatedly granting corporations rights against the citizenry and its elected representatives.
Instead, we ought to view business corporations, like municipal corporations, as governance structures created by We the People to promote our general Welfare. On this social contract view, corporations should have the constitutional rights specified in the text: none. Instead, we should be debating which rights of citizens against governmental agencies should also apply ...
Dying In Original Sin Vis-À-Vis Living In Disgrace—In Defense Of The Right To Socio-Eugenic Abortion As Personal Liberty, 2015 The National University of Advanced Legal Studies, Kochi, Kerala, India
Dying In Original Sin Vis-À-Vis Living In Disgrace—In Defense Of The Right To Socio-Eugenic Abortion As Personal Liberty, Jayadevan V. R. Dr.
Hamline Law Review
Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, 2015 Michigan State University College of Law
Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence
Michael Anthony Lawrence
This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.
The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 ...
(Un)Equal Protection: Why Gender Equality Depends On Discrimination, 2015 Northwestern University School of Law
(Un)Equal Protection: Why Gender Equality Depends On Discrimination, Keith Cunningham-Parmeter
Northwestern University Law Review
Most accounts of the Supreme Court’s equal protection jurisprudence describe the Court’s firm opposition to sex discrimination. But while the Court famously invalidated several sex-based laws at the end of the twentieth century, it also issued many other, less-celebrated decisions that sanctioned sex-specific classifications in some circumstances. Examining these long-ignored cases that approved of sex discrimination, this Article explains how the Court’s rulings in this area have often rejected the principle of formal equality in favor of broader antisubordination concerns. Outlining a new model of equal protection that authorizes certain forms of sex discrimination, (Un)Equal Protection ...
Once We’Re Done Honeymooning: Marriage Equality, Incrementalism, And Advances For Sexual Orientation Antidiscrimination, 2015 University of Massachusetts School of Law
Once We’Re Done Honeymooning: Marriage Equality, Incrementalism, And Advances For Sexual Orientation Antidiscrimination, Jeremiah A. Ho
Jeremiah A Ho
Once We’re Done Honeymooning: Marriage Equality, Incrementalism, and Advances for Sexual Orientation Antidiscrimination
Following the Supreme Court’s decision in U.S. v. Windsor, each recent victory in the federal courts has evidenced that the legal recognition of same-sex marriages in the U.S. is becoming increasingly secure. Yet, can marriage equality be the last stop in the pro-LGBT movement, or should we expect sexual minorities to advance in other legal arenas? Should we expect that the recent strides in marriage equality can somehow leverage broader protections of LGBT individuals beyond their marital relationships?
This article begins from ...
Walden V. Fiore And The Federal Courts: Rethinking Frcp 4(K)(1)(A) And Stafford V. Briggs, Daniel M. Klerman
University of Southern California Legal Studies Working Paper Series
If it were not so common, the reasoning in Walden v. Fiore would seem bizarre: the jurisdiction of a federal court over a federal claim against a federal agent depends on how much power the constitution allows the state of Nevada. This strange result is, of course, the result of FRCP 4(k)(1)(A), which, in most cases, makes the jurisdiction of a federal district court co-extensive with the jurisdiction of a state court of general jurisdiction in the same district. Less obviously, the outcome in Walden v. Fiore reflects Stafford v. Briggs, which, contrary to the plain language ...
Following Fisher: Narrowly Tailoring Affirmative Action, 2015 The Catholic University of America, Columbus School of Law
Following Fisher: Narrowly Tailoring Affirmative Action, Eang L. Ngov
Catholic University Law Review
Affirmative action has been at the forefront of educational policies and to this day continues to enliven debates. For decades, schools have litigated over whether affirmative action can be used to create a diverse student body. Now, the litigation has shifted to whether affirmative action policies are narrowly tailored. The Supreme Court’s most recent affirmative action case, Fisher v. University of Texas at Austin, requires that schools prove that there are no workable race neutral alternatives in order to demonstrate that their affirmative action programs are narrowly tailored. This article examines the available race neutral alternatives: percentage plans; socioeconomic ...
Abolish Anonymous Reporting To Child Abuse Hotlines, 2015 The Catholic University of America, Columbus School of Law
Abolish Anonymous Reporting To Child Abuse Hotlines, Dale Margolin Cecka
Catholic University Law Review
All states allow the public to anonymously report suspicions of child abuse or neglect to a toll free central phone number. An extensive examination of the policy and practices behind anonymous reporting hotlines indicates that they are widely unregulated and susceptible to abuse. The possible repercussions of an anonymous phone call create costs to the family and society which do not outweigh the potential benefit of allowing anonymous public reports. Under the guise of protecting children, the law has developed in such a way that it infringes on the fundamental rights of parents and children. At the same time, anonymous ...
Land Use Exactions, Anti-Evasion, And Koontz V. St. Johns River Water Management District, 2015 Campbell University
Land Use Exactions, Anti-Evasion, And Koontz V. St. Johns River Water Management District, Michael B. Kent Jr.
Michael B. Kent Jr.
This article considers the U.S. Supreme Court’s 2013 decision in Koontz v. St. Johns River Water Management District, which extended the application of the Court’s exactions test (known as Nollan/Dollan). The majority of the Court relied heavily on the unconstitutional conditions doctrine, explaining that this doctrine formed the basis not only for the Nollan/Dolan framework but also for the extension of that framework to Koontz’s new factual setting. Led by Justice Kagan, four members of the Court dissented. Although the dissenting Justices seemingly agreed with several of the majority’s propositions, they vigorously opposed ...
Nothing To Do With Personhood: Corporate Constitutional Rights And The Principle Of Confiscation, 2015 Texas State University
Nothing To Do With Personhood: Corporate Constitutional Rights And The Principle Of Confiscation, Paul Kens Dr.
Paul Kens Dr.
In its 2010 decision Citizens United v. Federal Election Commission the Supreme Court overruled a federal statute that limited a corporation’s ability to pay for political advertising out of its general treasury funds. Those limits, it ruled, violated the corporation’s right to freedom of speech. The case has since become notorious for the widely held belief that, in doing so, the Court declared that corporations are “persons,” possessing the same constitutional rights as flesh and blood human beings. Four years later the Court seemed to expand on this conclusion when it ruled in Burwell v. Hobby Lobby that ...
Jones, Lackey, And Teague, 2015 University of Detroit Mercy School of Law
Jones, Lackey, And Teague, Richard Broughton
In a recent, high-profile ruling, a federal court finally recognized that a substantial delay in executing a death row inmate violated the Eighth Amendment’s ban on cruel and unusual punishments. Courts have repeatedly rejected these so-called “Lackey claims,” making the federal court’s decision in Jones v. Chappell all the more important. And yet it was deeply flawed. This paper focuses on one of the major flaws in the Jones decision that largely escaped attention: the application of the non-retroactivity rule from Teague v. Lane. By comprehensively addressing the merits of the Teague bar as applied to Lackey claims ...
Romanticizing Democracy, Political Fragmentation, And The Decline Of American Government, 2015 NYU School of Law
Romanticizing Democracy, Political Fragmentation, And The Decline Of American Government, Richard Pildes
New York University Public Law and Legal Theory Working Papers
American democratic romanticism contributes to the current dysfunctionality of the institutions of American government, or so this article argues. Three lines of thought are developed that shape this argument. First, to understand the paralysis of current American government, it is as important to focus on the problem of "political fragmentation" as on the extreme polarization of the political parties By fragmentation, I mean both the internal diffusion of political power away from the party leadership into the hands of individual members, and the external diffusion of power away from the parties to non-party organizations. Today's political polarization is a ...