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Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson 2016 Columbia University

Disaggregating Corpus Christi: The Illiberal Implications Of Hobby Lobby's Right To Free Exercise, Katharine Jackson

Katharine Jackson

This paper first examines and critiques the group rights to religious exercise derived from the three ontologies of the corporation suggested by different legal conceptions of corporate personhood often invoked by Courts. Finding the implicated groups rights inimical to individual religious freedom, the paper then presents an argument as to why a discourse of intra-corporate toleration and voluntariness does a better job at protecting religious liberty.


Nonmoral Theoretical Disagreement In Law, Alani Golanski 2016 Weitz & Luxenberg, P.C.

Nonmoral Theoretical Disagreement In Law, Alani Golanski

Alani Golanski

I agree with Dworkin that there is widespread theoretical disagreement in law. I hope to show, however, why this disagreement should not be seen as moral in nature. Legal philosophers have nearly always viewed the existence of theoretical disagreement in law as the indicium of moral dispute. If that is so, and if such disagreement is widespread, then this would be compelling evidence of law’s incorporation of moral standards. Thus, theoretical disagreement has posed a powerful challenge to the "positivist" approach, which claims that, for the most part, legality can be determined without resort to moral criteria.

This paper ...


Reforming The Federal Arbitration Act To Equalize The Adjudication Rights Of Powerful And Weak Parties, Stephen A. Plass 2016 The Catholic University of America, Columbus School of Law

Reforming The Federal Arbitration Act To Equalize The Adjudication Rights Of Powerful And Weak Parties, Stephen A. Plass

Catholic University Law Review

Providing an extensive historical overview of federal arbitration jurisprudence and the Federal Arbitration Act (FAA), this article argues that the Supreme Court has misinterpreted FAA provisions and goals, thereby drastically changing the law of labor arbitration to the detriment of American workers and consumers. Namely, original congressional policy goals (providing speedy, fair and informal alternatives to court adjudication) have been countermanded by the Supreme Court’s interpretation of arbitration law over the last 50 years. As a result, modern arbitration law sets up an imbalance of power between employers/merchants and workers/consumers who are forced into lengthy and expensive ...


Publius's Political Science, John A. Ferejohn, Roderick M. Hills 2016 NYU Law School

Publius's Political Science, John A. Ferejohn, Roderick M. Hills

New York University Public Law and Legal Theory Working Papers

“Publius,” the collective author of The Federalist, was not just a polemicist and normative theorist but also a political scientist. We argue that the political psychology, and institutional predictions that comprise The Federalist are best understood as political science, because the predictions could be – and were – revised in light of “that best oracle of wisdom, experience” (Federalist 15). After outlining some “maintained hypotheses” about human nature that undergird The Federalist, we describe three respects in which James Madison revised, in light of post-1790 experience, Publius’ institutional predictions. The Federalist pressed the view that the national legislature would be the most ...


Reconsidering The Constitutionality Of Mandatory Minimum Sentences Under Section 231(5)(E) Post-Luxton, Laura Metcalfe 2016 University of Ottawa Faculty of Law

Reconsidering The Constitutionality Of Mandatory Minimum Sentences Under Section 231(5)(E) Post-Luxton, Laura Metcalfe

Western Journal of Legal Studies

Section 231(5)(e) of the Criminal Code elevates murder to first-degree murder when a death is caused while committing unlawful confinement per s. 279 of the Criminal Code. The corresponding mandatory sentence is life imprisonment with no eligibility for parole until 25 years have been served. The Supreme Court of Canada held that this provision was constitutional in R v Luxton, since it did not violate the principles of fundamental justice and was not considered cruel and unusual punishment, contrary to s. 7 and 12 of the Canadian Charter of Rights and Freedoms, respectively.

However, lower courts ought to ...


The Erosion Of The Rule Of Law When A State Attorney General Refuses To Defend The Constitutionality Of Controversial Laws, Rena M. Lindevaldsen 2016 Barry University School of Law

The Erosion Of The Rule Of Law When A State Attorney General Refuses To Defend The Constitutionality Of Controversial Laws, Rena M. Lindevaldsen

Barry Law Review

No abstract provided.


Beyond Willful Ignorance, Alexander F. Sarch 2016 University Southern California

Beyond Willful Ignorance, Alexander F. Sarch

University of Southern California Legal Studies Working Paper Series

The law allows willful ignorance to substitute for knowledge on the theory that these two mental states are equally culpable. This Article argues that, as a result, the law is also committed to allowing some forms of egregious non-willful ignorance—most importantly, reckless ignorance—to substitute for knowledge when the conditions of equal culpability are met. In addition to developing this theoretical argument, the Article argues that some courts already allow reckless ignorance to substitute for knowledge—namely, in cases governed by the collective knowledge doctrine. Allowing reckless ignorance to substitute for knowledge is thus not unprecedented. What’s more ...


Preliminary Warnings On 'Constitutional' Idolatry, Brian Christopher Jones 2016 Academia Sinica

Preliminary Warnings On 'Constitutional' Idolatry, Brian Christopher Jones

Brian Christopher Jones

Although contemporary societies covet the notion of a written constitution, the UK still stands as one of the few jurisdictions not in possession such a single document. Yet recently there has been renewed discussion regarding whether the UK should draft its own constitution (or at least entrench some form of constitutional law). A recent House of Commons committee report thoroughly analysed this prospect, and many scholars and practitioners consider such a result inevitable. This piece argues that such a document should not be drafted, but if it is, it should surely not be called a "Constitution".

Difficulties arise because over ...


Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, yehezkel Margalit 2016 SelectedWorks

Bridging The Gap Between Intent And Status: A New Framework For Modern Parentage, Yehezkel Margalit

Hezi Margalit

The last few decades have witnessed dramatic changes in the conceptualization and methodologies of determining legal parentage in the U.S. and other countries in the western world. Through various sociological shifts, growing social openness and bio-medical innovations, the traditional definitions of family and parenthood have been dramatically transformed. This transformation has led to an acute and urgent need for legal and social frameworks to regulate the process of determining legal parentage. Moreover, instead of progressing in a piecemeal, ad-hoc manner, the framework for determining legal parentage should be comprehensive. Only a comprehensive solution will address the differing needs of ...


From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, yehezkel Margalit 2016 SelectedWorks

From Baby M To Baby M(Anji): Regulating International Surrogacy Agreements, Yehezkel Margalit

Hezi Margalit

In 1985, when Kim Cotton became Britain’s first commercial surrogate mother, Europe was exposed to the issue of surrogacy for the first time on a large scale. Three years later, in 1988, the famous case of Baby M drew the attention of the American public to surrogacy as well. These two cases implicated fundamental ethical and legal issues regarding domestic surrogacy and triggered a fierce debate about motherhood, child-bearing, and the relationship between procreation, science and commerce. These two cases exemplified the debate regarding domestic surrogacy - a debate that has now been raging for decades. Contrary to the well-known ...


Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson 2016 University of Oklahoma College of Law

Fourth Amendment Time Machines (And What They Might Say About Police Body Cameras), Stephen E. Henderson

Stephen E Henderson

When it comes to criminal investigation, time travel is increasingly possible. Despite longstanding roots in traditional investigation, science is today providing something fundamentally different in the form of remarkably complete digital records. And those records not only store our past, but thanks to data mining and big data, in many circumstances they are eerily good at predicting our future. So, now that we stand on the threshold of investigatory time travel, how should the Fourth Amendment and legislation respond? How should we approach bulk government capture, such as by a solar-powered drone employing wide-area persistent stare technology? Is it meaningfully ...


What Gideon Did, Sara Mayeux 2016 University of Pennsylvania

What Gideon Did, Sara Mayeux

Faculty Scholarship

Many accounts of Gideon v. Wainwright’s legacy focus on what Gideon did not do—its doctrinal and practical limits. For constitutional theorists, Gideon imposed a preexisting national consensus upon a few “outlier” states, and therefore did not represent a dramatic doctrinal shift. For criminal procedure scholars, advocates, and journalists, Gideon has failed, in practice, to guarantee meaningful legal help for poor people charged with crimes.

Drawing on original historical research, this Article instead chronicles what Gideon did—the doctrinal and institutional changes it inspired between 1963 and the early 1970s. Gideon shifted the legal profession’s policy consensus on ...


How To Get Away With Career Murder: The Unconstitutional Blueprint For Systematically Purging Whistleblowers From U.S. Law Enforcement, Zena D. Crenshaw-Logal, Dr. Andrew D. Jackson, Dr. Sandra Nunn 2015 National Judicial Conduct and Disability Law Project, Inc.

How To Get Away With Career Murder: The Unconstitutional Blueprint For Systematically Purging Whistleblowers From U.S. Law Enforcement, Zena D. Crenshaw-Logal, Dr. Andrew D. Jackson, Dr. Sandra Nunn

Zena D. Crenshaw-Logal

Obviously U.S. state or federal prosecutors can be among the conspirators subjecting any given law enforcement whistleblower to retaliatory criminal prosecution.  In most instances such misdeeds are only under the color of law, i.e., they are the handy work of rogue government agents and do not constitute sovereign acts. However, according to the authors, an official or sovereign choice to “prefer” these oppressors is made each time a U.S. government agency opts not to thoroughly investigate their alleged whistleblower retaliation. The authors submit that all related convictions are accordingly void.  In addition to the “sworn public officer ...


Disparaging The Supreme Court, Part Ii: Questioning Institutional Legitimacy, Brian Jones 2015 Liverpool Hope University, UK

Disparaging The Supreme Court, Part Ii: Questioning Institutional Legitimacy, Brian Jones

Brian Christopher Jones

This updated and expanded piece welcomes the US Supreme Court to an unrelenting new world of disparagement, arguing that the Court is now subject to the widest and most sophisticated criticism it has ever experienced. This has led to many questions regarding the institution's legitimacy, and it now appears that a deeper conversation about the proper role of the Court, especially in regard to constitutional review, has only just begun. The increase in disparagement comes from both external (e.g., the press) and internal (e.g., dissent) sources. Externally, journalists, politicians, scholars, and the wider general public are now ...


Conviction Review Units: A National Perspective, John Hollway 2015 University of Pennsylvania Law School

Conviction Review Units: A National Perspective, John Hollway

Faculty Scholarship

Over the past 25 years, Americans have become increasingly aware of a vast array of mistakes in the administration of justice, including wrongful convictions, situations where innocent individuals have been convicted and incarcerated for crimes they did not commit. The most prevalent institutional response by prosecutors to address post-conviction fact-based claims of actual innocence is the Conviction Review Unit (CRU), sometimes called the Conviction Integrity Unit. Since the creation of the first CRU in the mid-2000s, more than 25 such units have been announced across the country; more than half of these have been created in the past 24 months ...


A Middle Ground For Democratic Accountability: Retention Elections For The House Of Lords, Brian Christopher Jones 2015

A Middle Ground For Democratic Accountability: Retention Elections For The House Of Lords, Brian Christopher Jones

Brian Christopher Jones

The piece explores the possibility of improving democratic accountability in the House of Lords by implementing retention elections, similar to those that are used for judges in many US states.


Moore On The Mind, Stephen J. Morse 2015 University of Pennsylvania Law School

Moore On The Mind, Stephen J. Morse

Faculty Scholarship

In revised form, this chapter will be published in a volume, Legal, Moral, and Metaphysical Truths: The Philosophy of Michael S. Moore, a festschrift for Michael Moore edited by Professor Kimberly Ferzan and me for Oxford University Press. The chapter first addresses a particular approach to foundational metaphysical issues in the philosophy of mind, action and responsibility that I term “Spockian solutions,” which are home remedies modeled on those found in the baby and child care book of famed pediatrician, the late Dr. Benjamin Spock. It then engages with Moore’s work on a variety of topics concerning action and ...


Addiction, Choice And Criminal Law, Stephen J. Morse 2015 University of Pennsylvania Law School

Addiction, Choice And Criminal Law, Stephen J. Morse

Faculty Scholarship

This chapter is a contribution to a volume, Addiction and Choice, edited by Nick Heather and Gabriel Segal that is forthcoming from Oxford University Press. Some claim that addiction is a chronic and relapsing brain disease; others claim that it is a product of choice; yet others think that addictions have both disease and choice aspects. Which of these views holds sway in a particular domain enormously influences how that domain treats addictions. With limited exceptions, Anglo-American criminal law has implicitly adopted the choice model and a corresponding approach to responsibility. Addiction is irrelevant to the criteria for the prima ...


Roe V. Wade: The Case That Changed Democracy, Adam Lamparello, Adam Lamparello 2015 Indiana Tech Law School

Roe V. Wade: The Case That Changed Democracy, Adam Lamparello, Adam Lamparello

Adam Lamparello

No abstract provided.


Criminal Law And Common Sense: An Essay On The Perils And Promise Of Neuroscience, Stephen J. Morse 2015 University of Pennsylvania Law School

Criminal Law And Common Sense: An Essay On The Perils And Promise Of Neuroscience, Stephen J. Morse

Faculty Scholarship

No abstract provided.


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