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Boumediene’S Quiet Theory: Access To Courts And The Separation Of Powers., Stephen I. Vladeck

Scholarly Articles in Law Reviews & Journals

At the core of Justice Kennedy's majority opinion in Boumediene v. Bush are his repeated suggestions that habeas corpus is an integral aspect of the separation of powers, and that, as such, the writ remains relevant even when the individual rights of those who would seek its protections are unclear. And whereas some might view these passages as little more than rhetorical flourishes, it is difficult to understand the crux of Kennedy's analysis - of why the review available to the Guantanamo detainees failed to provide an adequate alternative to habeas corpus - without understanding the significance of his separation-of-powers …

Loyalty Testing For Attorneys: When Is It Necessary And Who Should Decide?, Mary Elizabeth Basile

Cardozo Law Review

The concept of loyalty has been manipulated to mean different things with respect to the profession of law depending on the political climate brought about by national crises throughout the history of this country. An attorney's loyalty to his country has referred to more than mere allegiance and support of the laws of the sovereignty in that it has been understood to concern specified beliefs, doctrines, and associations. It has been tested through the imposition of loyalty oaths from the colonial days through the Civil War and Cold War, to the current post-September 11 era in which the government's emphasis …

Harbison V. Bell, Sarah Rutledge

Duke Journal of Constitutional Law & Public Policy Sidebar

No abstract provided.

You Can Move In But You Can't Stay: To Protect Occupancy Rights After Halprin, The Fair Housing Act Needs To Be Amended To Prohibit Post-Acquisition Discrimination, 42 J. Marshall L. Rev. 751 (2009), Scott N. Gilbert

UIC Law Review

No abstract provided.

Compelled Speech Under The Commercial Speech Doctrine: The Case Of Menu Label Laws, Jennifer L. Pomeranz

Journal of Health Care Law and Policy

No abstract provided.

Statutory Standing And The Tyranny Of Labels, Radha A. Pathak

Oklahoma Law Review

Constitutional and prudential standing doctrines have received an abundance of scholarly consideration. Statutory standing, in contrast, has remained largely unexplored. The Supreme Court’s use of the term is relatively consistent and unobjectionable, but the meaning that many lower courts ascribe to it is anything but innocuous. This article develops a conceptual framework for understanding the different ways in which different courts conceive of statutory standing. Using the Employee Retirement Income Security Act of 1974 (“ERISA”) as a paradigmatic example, it attempts to illustrate the pernicious effects that often result from common misconceptions of statutory standing in disputes involving purely private …

Gardasil A Year Later: Cervical Cancer As A Model For Inequality Of Access To Health Services, Micah Globerson

Cardozo Journal of Equal Rights & Social Justice

This article updates a prior feminist legal analysis of Gardasil, the vaccine against Human Papillomavirus ("HPV"), in light of new developments. Recent discoveries confirming that HPV poses threats to men led Merck & Co. ("Merck") to apply for FDA approval to market Gardasil to males. These developments have renewed focus on the recurring question of whether making Gardasil vaccination a prerequisite for boys' school participation will arouse the same public condemnation that resulted from the prior mandate targeting girls. Another new development involves a vaccine panel recommendation by the Centers for Disease Control ("CDC") that inadvertently resulted in a policy …

We Can Do Better: The State Of Custodial Misconduct By Correctional Staff In New York, Tanyika Brime

Cardozo Journal of Equal Rights & Social Justice

The note examines a class action lawsuit filed by female inmates against the New York Department of Correctional Services (DOCS), alleging widespread sexual misconduct by correctional staff and constitutional violations. The court ultimately dismissed most claims due to procedural issues, such as failure to exhaust administrative remedies, except for one plaintiff. The analysis highlights systemic failures in addressing prison sexual abuse and advocates for comprehensive legal reforms and external oversight to protect vulnerable inmates.

Barriers To Freedom: Continued Failure Of U.S. Immigration Laws To Offer Equal Protection To Immigrant Battered Women, Katerina Shaw

Cardozo Journal of Equal Rights & Social Justice

The note argues that U.S. immigration laws, despite advancements made by the Violence Against Women Act (VAWA), continue to fail in providing equal protection and adequate relief to immigrant battered women. It highlights that these women face significant legal and non-legal barriers, including unequal treatment under VAWA, burdensome evidentiary requirements, and cultural and financial obstacles that prevent them from seeking help and escaping abusive relationships.

Equality, I Spoke That Word/ As If A Wedding Vow: Mental Disability Law And How We Treat Marginalized Persons, Michael L. Perlin

Articles & Chapters

No abstract provided.

Repeal Of "Don't Ask, Don't Tell:" A Smooth Transition, Sharon E. Debbage Alexander, Kathi S. Westcott

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

From The Editors, Mark Tushnet, Carrie Menkel Meadow

Journal of Legal Education

No abstract provided.

Blocking Access To Assets: Compromising Civil Rights To Protect National Security Or Unconstitutional Infringement On Due Process And The Right To Hire An Attorney? , Danielle Stampley

American University Law Review

No abstract provided.

Untangling Tenth Amendment Standing: Why Private Parties Cannot Enforce The Federal Structure, David M. Palmer

UC Law Constitutional Quarterly

In the last thirty years, the Tenth Amendment has experienced a resurgence as an independent check on the powers of the federal government. This newfound interest in the meaning and power of the Tenth Amendment has inevitably led to the question: Who may bring a Tenth Amendment claim? As the Tenth Amendment concerns the relationship between states and the federal government, states, not private parties, have traditionally acted as plaintiffs in suits against federal government incursion. However, the Seventh and Eleventh Circuit Courts of Appeals have, in a series of cases beginning twenty-five years ago, expressly permitted private parties to …

Silence At The Schoolhouse Gate: The Diminishing First Amendment Rights Of Public School Employees, Neal H. Hutchens

Kentucky Law Journal

No abstract provided.

Mixed Speech: When Speech Is Both Private And Governmental, Caroline Mala Corbin

Articles

Speech is generally considered to be either private or governmental, and this dichotomy is embedded in First Amendment jurisprudence. However, speech is often neither purely private nor purely governmental but rather a combination of the two. Nonetheless, the Supreme Court has not yet recognized mixed speech as a distinct category of speech. This Article suggests considerations for identifying mixed speech and exposes the shortcomings of the current approach of classifying all speech as either private or governmental when determining whether viewpoint restrictions pass First Amendment muster. Treating mixed speech as government speech gives short shrift to the free speech interests …

A Post-Morse Framework For Students' Potentially Hurtful Speech (Religious And Otherwise), Emily Gold Waldman

Elisabeth Haub School of Law Faculty Publications

In this Article, I weave together strands from Tinker, Fraser, and Morse, as well as from lower court decisions taking varying approaches to this issue, to propose a new standard for student speech that is potentially hurtful to other students. This approach encompasses, without being limited to, speech that is religiously-motivated in nature. I argue that student speech that is hurtful to other students (whether religiously-motivated or not) should first be divided into two categories: (1) speech that identifies particular students for attack; and (2) speech, such as the message on Harper's T-shirt, that expresses a general opinion without being …

Employee Speech & Management Rights: A Counterintuitive Reading Of Garcetti V. Ceballos, Elizabeth Dale

UF Law Faculty Publications

In the two years since the decision came down, courts and commentators generally have agreed that the Supreme Court's decision in Garcetti v. Ceballos sharply limited the First Amendment rights of public employees. In this Article, I argue that this widely shared interpretation overstates the case. The Court in Garcetti did not dramatically change the way it analyzed public employees' First Amendment rights. Instead, it restated the principles on which those claims rest, emphasizing management rights and the unconstitutional conditions doctrine. By making those two theories the centerpiece of the decision, the Court in Garcetti defined public employee speech rights …

Hazelwood V. Kuhlmeier And The University: Why The High School Standard Is Here To Stay, Christopher N. Lavigne

Fordham Urban Law Journal

In Hazelwood School District v. Kuhlmeier, the Supreme Court evaluated the administrative control of a high school newspaper and held that public school officials could control speech in school-sponsored activities if they did so for legitimate pedagogical reasons. While the Court reserved the question of whether this standard should be applicable at the university level, various federal circuit courts have since applied this speech-restrictive standard to student speech at colleges and universities. In light of these circuit court opinions, there has been considerable debate about whether and to what extent the Hazelwood framework should apply to college and university students. …

Pressures Toward Mediocrity In The Representation Of Children, Barbara Glesner Fines

Faculty Works

When children are the subject of dependency, adoption or guardianship proceedings, protecting those children requires attention to a variety of interests. Children need a voice: an advisor and an advocate whose judgment is unclouded by conflicting interests. Courts need information that the adult parties to the proceedings may not easily discover or willingly provide. The families and social services agencies need monitors and mediators. The attorney guardian ad litem (GAL) is, in many situations, called upon to meet all these needs. During the past decade, major academic conferences and professional organizations have devoted thousands of hours to developing standards of …

“Equality, I Spoke Th At Word/As If A Wedding Vow”: Mental Disability Law And How We Treat Marginalized Persons, Michael J. Perlin, John Douard

NYLS Law Review

No abstract provided.

Requiem For Section 1983, Paul D. Reingold

Articles

Section 1983 no longer serves as a remedial statute for the people most in need of its protection. Those who have suffered a violation of their civil rights at the hands of state authorities, but who cannot afford a lawyer because they have only modest damages or seek only equitable remedies, are foreclosed from relief because lawyers shun their cases. Today civil rights plaintiffs are treated the same as ordinary tort plaintiffs by the private bar: without high damages, civil rights plaintiffs are denied access to the courts because no one will represent them. Congress understood that civil rights laws …

Terror Financing, Guilt By Association And The Paradigm Of Prevention In The ‘War On Terror’, David Cole

Georgetown Law Faculty Publications and Other Works

"Material support" has become the watchword of the post-9/11 era. Material support to groups that have been designated as "terrorist" has been the U.S. government's favorite charge in post-9/11 "terrorism" prosecutions. Under immigration law, material support is a basis for deportation and exclusion - even where individuals have been coerced into providing support by the terrorist group itself. And under the Military Commissions Act, it is now a "war crime."

This essay argues that the criminalization of "material support" to designated "terrorist organizations" is guilt by association in twenty-first-century garb, and presents all of the same problems that criminalizing membership …

More Stories Of Jurisdiction-Stripping And Executive Power: Interpreting The Prison Litigation Reform Act (Plra), Giovanna Shay, Johanna Kalb

Cardozo Law Review

No abstract provided.

Surfing Past The Pall Of Orthodoxy: Why The First Amendment Virtually Guarantees Online Law School Graduates Will Breach The Aba Accreditation Barrier, Nicholas C. Dranias

ExpressO

The impact of the constitutional dilemma created by the ABA’s aversion to Internet schooling is widespread. Currently, 18 states and 2 U.S. territories restrict bar exam eligibility to graduates of ABA-accredited law schools. Additionally, 29 states and 1 U.S. territory restrict admission to practice on motion to graduates of ABA-accredited law schools.

Although numerous lawsuits have been filed in ultimately failed efforts to strike down bar admission rules that restrict eligibility to graduates of ABA-accredited law schools, none has challenged the ABA-accreditation requirement based on the First Amendment’s prohibition on media discrimination. This Article makes that case.

Despite accelerating technological …

Legalized Gaming And Political Contributions: When The Diceman Cometh, Will Corruption Goeth?, 40 J. Marshall L. Rev. 1089 (2007), Bonny Bumiller

UIC Law Review

No abstract provided.

Fair Use And The Digital Millennium Copyright Act, Thomas J. Loos

Michigan Telecommunications & Technology Law Review

In the last decade of the 20th Century, more than 200 years after the first Copyright Act of 1790, the rights of copyright owners have increased relative to those of the public. The Visual Artists Rights Act of 1990 provided a limited right to visual artists to control their work; even after sold, limiting first use rights. The first copyright act had a 28 year term; in 1998, the term of copyright was increased to the life of the author plus 70 years. The Digital Millennium Copyright Act (DMCA) of 1998 dramatically shrank the fair use rights provided under 17 …

Government Advertising Space: Lessons For The 'Choose Life' Specialty License Plate Controversy, Dara Purvis

Faculty Scholarship

As license plates emblazoned with the message “Choose Life” have proliferated in twenty-four states, so too have lawsuits challenging such specialty license plates. The holdings of such cases have run the gamut, resulting in a three-way circuit split among the Fourth, Fifth, and Sixth Circuits. Analysis of the controversy up to this point has not considered an illuminating analogy: advertising space owned and operated by the government. Examining the parallels between advertising space and specialty license plates informs doctrinal analysis of the dispute, demonstrating that state legislatures may not use the current practice of individually establishing specialty license plates through …

Poverty, Inequality, And Class In The Structural Constitutional Law Course, Stephen Loffredo

Fordham Urban Law Journal

This Article argues that poverty and income inequality issues should be taught in a constitutional law course. Furthermore, it argues that these issues should not only be considered when discussing due process, equal protection, the First Amendment, but in also within the context of structural constitutional law, i.e. separation of powers and federalism.

Morse Code, Da Vinci Code, Tax Code And ... Churches: An Historical And Constitutional Analysis Of Why Section 501(C)(3) Does Not Apply To Churches, Jennifer M. Smith

Journal Publications

This article is about the United States federal tax code and churches. In particular, it discusses the interplay between section 501(c)(3) and churches in America. Section II presents a background of the history of the tax exemption for churches and the judicial holdings relative to that exemption. Section III explores the historical development of the separation between church and state, tax exemptions, and section 501(c)(3). Section V analyzes section 501(c)(3) under the Constitution's free speech and religion clauses. Section V proposes a recommendation, and Section VI is the conclusion.