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Full-Text Articles in Law
Winning Wirzburger And Defeating The Blaine Amendments: Arguing Present Efficacy Instead Of Past Intent, Brendan Michael Groves
Winning Wirzburger And Defeating The Blaine Amendments: Arguing Present Efficacy Instead Of Past Intent, Brendan Michael Groves
ExpressO
The case of Wirzburger v. Galvin, currently on a writ of certiorari to the Supreme Court, may set the tone for all religious discrimination cases in the future. Massachusetts’ constitutional amendments that proscribe any citizen initiatives from either dealing with religion in general or attempting to repeal the states Blaine Amendment are at issue in the case. Petitioner’s counsel, the Becket Fund, rightly views this case as paramount in the long-march to victory over the anti-Catholic Blaine Amendments still codified in 37 state constitutions. However, they have lost almost every stage of the case.
This article argues that Wirzburger and …
Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins
Restorative Justice, Slavery And The American Soul, A Policy-Oriented Approach To The Question Of Slavery Reparations By The United States, Michael F. Blevins
ExpressO
This LL.M. Intercultural Human Rights thesis (May, 2005), awarded the best student paper prize for 2005 by the Institute of Policy Sciences at Yale University (in October, 2005), after analysing past and curent issues regarding the culture wars controversy of "reparations", proposes a specific process for establishing Truth and Reconciliation regarding the legacy of slavery in the United States. The proposal recommends commissions in each Federal judicial district under the supervision of a U.S. Slavery Justice and Reconciliation Commission (USSJRC), calling for "America's 21st Century Contract with Africa and African-Americans".
Making Free Speech Affordable: A Discussion Of Legislation To Provide Public Funding To Candidates For The U.S. Congress, Jared S. Cram
Making Free Speech Affordable: A Discussion Of Legislation To Provide Public Funding To Candidates For The U.S. Congress, Jared S. Cram
ExpressO
This article discusses a recent attempt by the U.S. Congress to provide for public financing of campaigns for the House of Representatives. Although a good start, this legislation would not go far enough to ensure that every voice has an opportunity to be heard in federal elections. My article discusses the strengths and weaknesses of this legislation and also provides suggested amendments to make this bill more effective should it become law.
Making Free Speech Affordable provides an in-depth comparison of this proposed legislation with current law at the state level providing for public financing of campaigns. This discussion includes …
The Transnational Judicial Discourse And Felon Disenfranchisement: Re-Examining The Textual Premise Of Richardson V. Ramirez, Jason G. Morgan-Foster
The Transnational Judicial Discourse And Felon Disenfranchisement: Re-Examining The Textual Premise Of Richardson V. Ramirez, Jason G. Morgan-Foster
ExpressO
This article is simultaneously an international comparative law piece about prisoner disenfranchisement in various countries, a transnational work of legal theory providing a framework for the use of foreign law in domestic constitutional courts, and a domestic analysis of the constitutional underpinnings of felon disenfranchisement.
The article begins with a comprehensive comparative analysis of the recent prisoner disenfranchisement decisions in Canada, South Africa, and Europe. It notes that the over-arching theme of these decisions is to view the acceptability of prisoner disenfranchisement along a continuum, where it becomes more acceptable the more serious the offense committed.
The article then examines …
The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt
The Constitutional Rhetoric Of White Innocence, Cecil J. Hunt
ExpressO
This article discusses the Supreme Court’s use of the rhetoric of white innocence in deciding racially inflected claims of constitutional shelter. It argues that the Court’s use of this rhetoric reveals that it has adopted a distinctly white-centered-perspective which reveals only a one-sided view of racial reality and thus distorts its ability to accurately appreciate the true nature of racial reality in contemporary America. This article examines the Court’s habit of consistently choosing a white-centered-perspective in constitutional race cases by looking at the Court’s use of the rhetoric of white innocence first in the context of the Court’s concern with …
Broken Borders: Decanas V. Bica, And The Standards That Govern The Validity Of State Measures Designed To Deter Undocumented Immigration, Joshua J. Herndon
Broken Borders: Decanas V. Bica, And The Standards That Govern The Validity Of State Measures Designed To Deter Undocumented Immigration, Joshua J. Herndon
ExpressO
No abstract provided.
The Recognition Of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, And Strategic Institutional Choice, Nancy J. Knauer
The Recognition Of Same-Sex Relationships: Comparative Institutional Analysis, Contested Social Goals, And Strategic Institutional Choice, Nancy J. Knauer
ExpressO
The emerging field of comparative institutional analysis (CIA) has much to offer public policy analysts. However, the failure of CIA to address the dynamic process through which social goals are articulated limits the scope of its application to the largely prescriptive pronouncements of legal scholars. By examining the movement for equal recognition of same-sex relationships, this Essay builds on the basic observations of CIA and introduces a new dimension, namely the dynamic process through which social goals are articulated and social change is pursued. The acknowledgment that the production of social goals involves institutional behavior, as well as multiple sites …
Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor
Breaking The Bank: Revisiting Central Bank Of Denver After Enron And Sarbanes-Oxley, Celia Taylor
ExpressO
No abstract provided.
Constitutional Adjudication, Civil Rights, And Social Change, Suzanne B. Goldberg
Constitutional Adjudication, Civil Rights, And Social Change, Suzanne B. Goldberg
Rutgers Law School (Newark) Faculty Papers
Judicial opinions typically rely on “facts” about a social group to justify or reject limitations on group members’ rights, especially when traditional views about the status or capacity of group members are in contest. Yet the fact-based approach to decision-making obscures the normative judgments that actually determine whether restrictions on individual rights are reasonable. This article offers an account of how and why courts intervene in social conflicts by focusing on facts rather than declaring norms. In part, it argues that this approach preserves judicial power to retain traditional justifications for restricting group members’ rights in some settings but not …
Lost In The Shuffle: State-Recognized Tribes And The Tribal Gaming Industry, Alexa Koenig, Jonathan Stein
Lost In The Shuffle: State-Recognized Tribes And The Tribal Gaming Industry, Alexa Koenig, Jonathan Stein
ExpressO
This article presents the emerging argument that Native American tribes that have received state but not federal recognition have a legal right to engage in gaming under state law. This argument is based on five points: that 1) the regulation of gaming is generally a state right; 2) state tribes are sovereign governments with the right to game, except as preempted by the federal government; 3) federal law does not preempt gaming by state tribes; 4) state tribal gaming does not violate Equal Protection guarantees; and 5) significant policy arguments weigh in favor of gaming by state tribes under state …
Another Case In Lochner’S Legacy, The Court’S Assault On New Property: The Right To The Mandatory Enforcement Of A Restraining Order Is “A Sham, Nullity And Cruel Deception” , Christopher J. Roederer
Another Case In Lochner’S Legacy, The Court’S Assault On New Property: The Right To The Mandatory Enforcement Of A Restraining Order Is “A Sham, Nullity And Cruel Deception” , Christopher J. Roederer
ExpressO
This article provides a thorough critique of the Supreme Court decision of Castle Rock v. Gonzales 125 S. Ct. 2796 (2005) which dismissed respondent’s case for failing to establish that she had a property right in the enforcement of a restraining order that was worthy of procedural due process protection. The article critiques the Court’s methodology and substantive arguments. The article concludes by situating the decision in “Lochner’s legacy,” a legacy of decisions that Cass Sunstein has identified as privileging “government inaction,” and “the existing distribution of entitlements” as set by the common law. Just as the Lochner Court decided …
Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree
Rhetorical Holy War: Polygamy, Homosexuality, And The Paradox Of Community And Autonomy, Gregory C. Pingree
ExpressO
The article explores the rhetorical strategies deployed in both legal and cultural narratives of Mormon polygamy in nineteenth-century America. It demonstrates how an understanding of that unique communal experience, and the narratives by which it was represented, informs the classic paradox of community and autonomy – the tension between the collective and the individual. The article concludes by using the Mormon polygamy analysis to illuminate a contemporary social situation that underscores the paradox of community and autonomy – homosexuality and the so-called culture wars over family values and the meaning of marriage.
Counter-Majoritarian Power And Judges' Political Speech, Michael R. Dimino
Counter-Majoritarian Power And Judges' Political Speech, Michael R. Dimino
ExpressO
Canons of ethics restrict judicial campaigning and prohibit sitting judges from engaging in political activity. Only recently, in Republican Party v. White, 536 U.S. 765 (2002), has the Supreme Court addressed the constitutionality of these restrictions, concluding that judicial candidates must be allowed some opportunity to discuss legal and political issues in their campaigns. But White left many questions unanswered about the permissible scope of restrictions on judges’ political activity.
This Article suggests that those questions will be answered not by applying principles of free speech, but by analyzing the opportunities the restrictions provide for independent judicial policy-making. Restrictions on …
Race Against The Machine: An Argument For The Standardization Of Voting Technology, Jason Belmont Conn
Race Against The Machine: An Argument For The Standardization Of Voting Technology, Jason Belmont Conn
ExpressO
In this article/note, I examine a lingering question from the court cases arising out of the 2000 election: Does Bush v. Gore and the relevant equal protection case law open the door for a legal challenge to a state’s use of different voting machines/technologies and how do racial disparities in machine error rates impact this analysis? In addition to reviewing the current literature and case law on voting machine standardization, I also present an unrecognized and undocumented connection between the “all deliberate speed” order in Brown and the Court’s discussion of voting technology in Bush v. Gore.
Bolling, Equal Protection, Due Process, And Lochnerphobia, David E. Bernstein
Bolling, Equal Protection, Due Process, And Lochnerphobia, David E. Bernstein
George Mason University School of Law Working Papers Series
In Brown v. Board of Education, the United States Supreme Court invalidated state and local school segregation laws as a violation of the Fourteenth Amendment's Equal Protection Clause. That same day, in Bolling v. Sharpe, the Court held unconstitutional de jure segregation in Washington, D.C.'s public schools under the Fifth Amendment's Due Process Clause. Fifty years after it was decided, Bolling remains one of the Warren Court's most controversial decisions.
The controversy reflects the widespread belief that the outcome in Bolling reflected the Justices' political preferences and was not a sound interpretation of the Due Process Clause. The Bolling Court …
Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar
Dickerson V. United States: The Case That Disappointed Miranda's Critics--And Then Its Supporters, Yale Kamisar
University of San Diego Public Law and Legal Theory Research Paper Series
It is difficult, if not impossible, to discuss Dickerson v. United States intelligently without discussing Miranda, whose constitutional status Dickerson reaffirmed (or, one might say, resuscitated). It is also difficult, if not impossible, to discuss the Dickerson case intelligently without discussing cases the Court has handed down in the five years since Dickerson was decided. The hard truth is that in those five years the reaffirmation of Miranda’s constitutional status has become less and less meaningful.
In this paper I want to focus on the Court’s characterization of statements elicited in violation of the Miranda warnings as not actually “coerced” …
Pursuing Justice For The Mentally Disabled, Grant H. Morris
Pursuing Justice For The Mentally Disabled, Grant H. Morris
University of San Diego Public Law and Legal Theory Research Paper Series
This article considers whether lawyers act as zealous advocates when they represent mentally disordered, involuntarily committed patients who wish to assert their right to refuse treatment with psychotropic medication. After discussing a study that clearly demonstrates that lawyers do not do so, the article explores the reasons for this inappropriate behavior. Michael Perlin characterizes the problem as “sanism,” which he describes as an irrational prejudice against mentally disabled persons of the same quality and character as other irrational prejudices that cause and are reflected in prevailing social attitudes of racism, sexism, homophobia, and ethnic bigotry. The article critiques Perlin’s characterization …
It's Not The Thought That Counts, Deborah S. Hellman
It's Not The Thought That Counts, Deborah S. Hellman
ExpressO
The article considers a central question about discrimination – are an actor’s intentions relevant to whether an action wrongfully discriminates – and takes issue with a familiar answer to this question. If one thinks of “discrimination” in its literal sense, as simply drawing distinctions among people on the basis of possessing or lacking some trait, it becomes clear that discrimination is ubiquitous and often benign. The challenge is to distinguish when discrimination is permissible and when it is not. One common answer to this question is that it is the intentions of the actor who adopts or enacts a law, …
Reviving A Natural Right: The Freedom Of Autonomy, Michael Anthony Lawrence
Reviving A Natural Right: The Freedom Of Autonomy, Michael Anthony Lawrence
ExpressO
America in the early twenty-first century is a place where oppressive state constitutional amendments discriminate against millions of gay Americans; where compassionate end-of-life choice is illegal in 49 states and where the one state where it is legal is being sued by the U.S. government; where hundreds of thousands are arrested yearly and tens of thousands are in prison for private possession or use of marijuana; where a woman’s right to maintain control over her own reproductive decisions hangs by a thread; and where religious freedom is under relentless attack.
Whatever became of the ideal that represented the very foundation …
Cleaning Up The Eighth Amendment Mess, Tom Stacy
Cleaning Up The Eighth Amendment Mess, Tom Stacy
ExpressO
This article criticizes the Court’s interpretation of the Eighth Amendment’s Cruel and Unusual Punishment Clause and proposes its own understanding. The Court’s jurisprudence is plagued by deep inconsistencies concerning the text, the Court’s own role, and a constitutional requirement of proportionate punishment.
In search of ways to redress these fundamental shortcomings, the article explores three alternative interpretations: 1) A textualist approach; 2) Justice Scalia’s understanding that the Clause forbids only punishments unacceptable for all offenses; and 3) a majoritarian approach that would consistently define cruel and unusual punishment in terms of legislative judgments and penal custom. As evidenced by the …
The Disability Integration Presumption: Thirty Years Later, Ruth Colker
The Disability Integration Presumption: Thirty Years Later, Ruth Colker
The Ohio State University Moritz College of Law Working Paper Series
The fiftieth anniversary of the Brown v. Board of Education decision has spurred a lively debate about the merits of “integration.” This article brings that debate to a new context – the integration presumption under the Individuals with Disabilities Education Act (“IDEA”). The IDEA has contained an “integration presumption” for more than thirty years under which school districts should presumptively educate disabled children with children who are not disabled in a fully inclusive educational environment. This article traces the history of this presumption and argues that it was borrowed from the racial civil rights movement without any empirical justification. In …
Book Review: Forensic Linguistics, Dru Stevenson
Book Review: Forensic Linguistics, Dru Stevenson
ExpressO
Review of John Gibbons' text "Forensic Linguistics"
In Or Out? Groups And The Fourteenth Amendment After Lawrence V. Texas, Miranda Mcgowan
In Or Out? Groups And The Fourteenth Amendment After Lawrence V. Texas, Miranda Mcgowan
ExpressO
This article explores a line of Supreme Court cases that have struck down state laws using a rigorous form of rational basis scrutiny, culminating in Lawrence v. Texas. The facts of these rigorous rational basis cases are diverse, but they share a common denominator: the Court has applied more rigorous rational basis scrutiny when a government has restricted the liberties of, or denied some state benefit, to a group—specifically, gays, lesbians, persons with disabilities, illegal immigrant children, and hippies.
Rigorous rational basis scrutiny has not wholly supplanted regular rational basis scrutiny. Courts still use regular rational basis scrutiny to review …
Compliance Theory And The Inter-American Court Of Human Rights, Morse Hyun-Myung Tan
Compliance Theory And The Inter-American Court Of Human Rights, Morse Hyun-Myung Tan
ExpressO
This essay fills a gap by exploring compliance theory in international law to the Inter-American Court of Human Rights. After introducing the topic and setting the context, it delves into the question of why nations follow international law. Interacting with prominent theoretical models (including the managerial model, fairness and legitimacy, transnational legal process, self-interest, and a comparative perspective with Europe), it arrives at a critical synthesis in the conclusion.
Reclaiming The Public Forum: Courts Must Stand Firm Against Governmental Efforts To Displace Dissidence, Christopher B. Ford
Reclaiming The Public Forum: Courts Must Stand Firm Against Governmental Efforts To Displace Dissidence, Christopher B. Ford
ExpressO
Recognizing that the right to free speech for dissidents is increasingly at risk in the United States, this submission catalogs manifold methods the government has employed to constrain free speech and urges that courts not only serve as a bulwark against further erosion of public expression of dissent but endeavor to restore access to the public forum that recently has been lost. The submission surveys the background of the right to free expression and provides details and examples of the government’s increasing tendency to suppress dissident speech by deploying heavily armed police in demonstrations, committing violent acts against peaceful protesters, …
Awakening An Empire Of Liberty: Exploring The Roots Of Socratic Inquiry And Political Nihilism In American Democracy, Maurice R. Dyson
Awakening An Empire Of Liberty: Exploring The Roots Of Socratic Inquiry And Political Nihilism In American Democracy, Maurice R. Dyson
ExpressO
This book review timely examines Cornel West’s latest sequel to his 1992 best seller, Race Matters. In Democracy Matters, West unflinchingly examines the waning of democratic energies and nihilistic practices of private and public sector in our present age of democracy. This review takes a critical examination of the logic underpinning West’s arguments, his nomenclature of various nihilism plaguing our society, the sometimes clumsy employment of literary devices and his thesis regarding the ‘niggerization’ of America after 9/11 that can serve as a basis for unifying collective action against imperialism. West makes a compelling argument that the public needs to …
The Scottish And English Religious Roots Of The American Right To Arms: Buchanan, Rutherford, Locke, Sidney, And The Duty To Overthrow Tyranny, David B. Kopel
The Scottish And English Religious Roots Of The American Right To Arms: Buchanan, Rutherford, Locke, Sidney, And The Duty To Overthrow Tyranny, David B. Kopel
David B Kopel
Many twenty-first century Americans believe that they have a God-given right to possess arms as a last resort against tyranny. One of the most important sources of that belief is the struggle for freedom of conscience in the United Kingdom during the reigns of Elizabeth I and the Stuarts. A moral right and duty to use force against tyranny was explicated by the Scottish Presbyterians George Buchanan and Samuel Rutherford. The free-thinking English Christians John Locke and Algernon Sidney broadened and deepened the ideas of Buchanan and Rutherford. The result was a sophisticated defense of religious freedom, which was to …
The Religious Roots Of The American Revolution And The Right To Keep And Bear Arms, David B. Kopel
The Religious Roots Of The American Revolution And The Right To Keep And Bear Arms, David B. Kopel
David B Kopel
This article examines the religious background of the American Revolution. The article details how the particular religious beliefs of the American colonists developed so that the American people eventually came to believe that overthrowing King George and Parliament was a sacred obligation. The religious attitudes which impelled the Americans to armed revolution are an essential component of the American ideology of the right to keep and bear arms.
Lifting The Pall Of Orthodoxy: The Need For Hearing A Multitude Of Tongues In And Beyond The Sexual Education Curricula At Public High Schools, Carlo A. Pedrioli
Lifting The Pall Of Orthodoxy: The Need For Hearing A Multitude Of Tongues In And Beyond The Sexual Education Curricula At Public High Schools, Carlo A. Pedrioli
Carlo A. Pedrioli
When public high schools promote heterosexuality at the cost of denying sexual minority youth the opportunity to learn about minority sexualities, these schools contribute to the disastrous situation in which many sexual minority high school students find themselves. This approach, which many public high schools take, is unnecessarily destructive and warrants prompt change. Instead of helping to perpetuate many of the challenges that sexual minority students face in high school, public high schools can and need to help address these challenges.
To establish the case for such a position, this article begins by presenting the plight of many sexual minority …
Under A Critical Race Theory Lens – Brown V. Board Of Education: A Civil Rights Milestone And Its Troubled Legacy, Carlo Pedrioli
Under A Critical Race Theory Lens – Brown V. Board Of Education: A Civil Rights Milestone And Its Troubled Legacy, Carlo Pedrioli
Carlo A. Pedrioli
This critical book review argues that James T. Patterson’s narrative in, "Brown v. Board of Education: A Civil Rights Milestone and Its Troubled Legacy," is a mostly balanced historical reflection. Here, the term balanced will refer to giving consideration to both the negative and positive aspects of the phenomenon in question. To advance its thesis, the book review initially offers an overview of Patterson’s historical narrative and evaluation of the Brown legacy. Then the book review analyzes Patterson’s conclusions through a Critical Race Theory lens. Given the focus of Critical Race Theory on race and the law, especially on how …