Law Commons^™

Hate Speech On Campus And The First Amendment: Can They Be Reconciled?, Thomas Schweitzer

Thomas A. Schweitzer

No abstract provided.

The Walmart Class Action And The Culture Of Discrimination, Kent Greenfield

Kent Greenfield

No abstract provided.

Wake Up America! Daylight Savings Time Is A Socialist Plot!, Kent Greenfield

Kent Greenfield

No abstract provided.

New Directions In Earth Rights, Environmental Rights And Human Rights: Six Facets Of Constitutionally Embedded Environmental Rights Worldwide, James May, Erin Daly

Erin Daly

This essay provides an overview of the worldwide phenomenon of constitutional environmental rights. Since the Stockholm Convention, nearly 60 countries have constitutionally entrenched environmental rights, according their citizens basic rights to environmental quality in one form or another. The list is diverse politically, including countries with civil, common law, Islamic, and other traditions. Some of the more recent of these include Kenya in 2010, Ecuador in 2007, France in 2005, Afghanistan in 2004, and South Africa in 1996. As a result, domestic courts and international tribunals are enforcing constitutionally enshrined environmental rights with growing frequency, reflecting basic human rights to …

What My Snowy Sidewalk Has To Say About The Individual Mandate, Kent Greenfield

Kent Greenfield

No abstract provided.

Poverty As An Everday State Of Exception, Julie Nice

Julie A. Nice

This essay applies the provocative theory of Italian philosopher Giorgio Agamben to Poverty Law. It is forthcoming as a book chapter in a multidisciplinary volume of papers exploring the relations between accumulation and insecurity. Professor Nice distills Agamben's theory of the state of exception, that the dominant paradigm of modern democracy is founded on the state's power to exclude from rights those who are otherwise included within the political order. Professor Nice posits that the state's abandonment of poor people exemplifies an everyday example of the state of exception. She illustrates how poor people lack meaningful constitutional protection, legal entitlement, …

Dignity In The Service Of Democracy, Erin Daly

Erin Daly

At a broad level, perhaps the most noticeable trend in Latin American constitutional law is the increasing muscularity of constitutional tribunals. Throughout the region, particularly in South America, tribunals charged with interpreting their country’s constitution are increasingly asserting themselves and inserting themselves into public controversies, from abortion to same sex marriage to the rights of political association. This heightened judicial activity can come at a cost to democracy: typically, the more social issues are decided by unelected and unaccountable judges rather than through a political process, the less the people control the resolution of those issues. The more outcomes are …

Introduction - Comparative Law As Transnational Law: A Decade Of The German Law Journal, Russell Miller, Peer Zumbansen

Russell A. Miller

No abstract provided.

Confirming Piskei Din In Secular Court, Michael Helfand

Michael A Helfand

No abstract provided.

Finding Home In The World: A Deontological Theory Of The Right To Be Adopted, Paulo Barrozo

Paulo Barrozo

Because of the continued dominance of consequentialist views, the deontological paradigm that emerges in the form of a human rights approach to adoption faces two major and partially connected obstacles. First, and despite the fact that the human rights approach has found compelling advocates, its jurisprudential basis has yet to be fully articulated. And in part because of insufficient theorization, the emerging deontological adoption is constantly at risk of being rhetorically and practically subsumed or engulfed by the resilient consequentialist-cum-charity paradigm. This article addresses these two obstacles, laying out the foundations of a deontological theory of adoption.After the Introduction, Part …

The Modern History Of Probable Cause, Wesley Oliver

Wesley M Oliver

It is frequently assumed that probable cause, roughly as we understand it today, has, since time immemorial, been the standard allowing an officer to search or arrest. The reality is that probable cause has change a lot since the Bill of Rights was drafted. In the mid-nineteenth century, probable cause was no more than a pleading requirement in criminal cases -- and never has been more than a pleading requirement in criminal cases. Victims of crimes alone were able to seek arrest or search warrants by swearing that they had suffered an injury and that they had probable cause to …

Human Dignity In The Roberts Court: A Story Of Inchoate Institutions, Autonomous Individuals, And The Reluctant Recognition Of A Right, Erin Daly

Erin Daly

Throughout its history, the Supreme Court has assumed that dignity is relevant to constitutional interpretation, though it has rarely considered exactly how. In the post-war years, the Court (like its counterparts around the world) found that human dignity underlay many individual rights, and in the 1990s, the Court's federalism jurisprudence found that the dignity of states immunized them from most lawsuits in both state and federal courts. This article examines the Court's past references to dignity and argues that the conception of dignity that is evoked in the federalism cases -- which focus, at root, on the autonomy of the …

Changing The People: Legal Regulation And American Democracy, Tabatha Abu El-Haj

Tabatha Abu El-Haj

The world in which we live, a world in which law pervades the practice of democratic politics – from advance regulation of public assemblies to detailed rules governing elections – is the product of a particular period of American history. Between 1880 and 1930, states and municipalities increased governmental controls over the full range of nineteenth-century avenues for democratic participation. Prior to this legal transformation, the practice of democratic politics in the United States was less structured by law and more autonomous from formal state institutions than it is today. Exposing this history challenges two core assumptions driving the work …

Irrational Women: Informed Consent And Abortion Regret, Maya Manian

Maya Manian

This chapter explores the law’s failure in the twenty-first century to treat pregnant women as capable of making their own decisions concerning whether to have an abortion. The Supreme Court’s 2007 decision in Gonzales v. Carhart, which upheld a federal ban on a type of second-trimester abortion that many physicians believe is safest for their patients, brought the question of women’s capacity for abortion decision-making to the forefront of public legal consciousness. In Carhart, the Court abandoned its previous deference and respect for a woman’s right to be her own decision-maker with regard to abortion and instead determined that a …

The Day The Earth Stood Still?--Reading Jürgen Habermas's Essay "February 15" Against Ian Mcewan's Novel, Russell Miller

Russell A. Miller

No abstract provided.

Material Witness Detentions After Al-Kidd, Wesley M. Oliver

Wesley M Oliver

The Supreme Court’s decision in Ashcroft v. al-Kidd was a tempest in a teapot. The Court concluded only that a witness was no less susceptible to arrest under the Federal Material Witness Statute if the government was interested in prosecuting the witness himself. Unremarkably under the holding, it is no more difficult to detain an al-Qaeda member who witnessed a crime than it is to detain an innocent bystander who witnessed a crime. The fact that a criminal suspect can be held, however, raises concerns beyond the scope of the narrow question before the Court. If the government’s real interest …

Thurgood Marshall: The Writer, Anna P. Hemingway, Starla J. Williams, Jennifer M. Lear, Ann E. Fruth

Anna P. Hemingway

Cell Phone Location Data And The Fourth Amendment: A Question Of Law, Not Fact, Susan Freiwald

Susan Freiwald

In a significant ruling in the fall of 2010, the Third Circuit Court of Appeals rejected the government’s claim that it could compel cell phone service providers to disclose customer records that indicate the cell towers with which a cell phone has communicated (cell phone location information or CSLI) without obtaining a warrant based on probable cause. In a break with past decisions, the court rejected application of a “third party rule,” under which cell phone users are seen to assume the risk that their providers will disclose location data without the protections of a warrant requirement. The court, however, …