Law Commons^™

Is The First Amendment Entrenched? Rawls’ Curious Claim, Gordon D. Ballingrud

Gordon D Ballingrud

. This paper addresses a claim made by John Rawls in Lecture VI of Political Liberalism: any American constitutional amendment, ratified through Article V, which overturned the First Amendment would be illegitimate and justly ruled unconstitutional by the Supreme Court. Addressing the apparent contradiction that a duly enacted constitutional amendment can be unconstitutional, this paper reconstructs and critiques Rawls claim along two lines. First, I address Rawls’ philosophical claim as to the de facto entrenchment of the First Amendment, and the mechanisms that Rawls implicitly and explicitly purports to entrench it. I also address the claim that a First …

Religious Victory Over The Affordable Care Act? Possible Recourse For The Employee Of The Religious Employer, Jacqueline Prats

Jacqueline M Prats

In 2012, the Supreme Court upheld the Patient Protection and Affordable Care Act (ACA). Even as the Court deliberated, a number of for-profit employers prepared to challenge the law—not the Act as a whole, but a specific part: the requirement that insurance plans cover contraceptives for women, free of co-pay or other cost-sharing. Although their companies were secular, these business owners claimed that the “contraception mandate” violated not only their religious beliefs, but also those of their companies. They challenged the ACA under both the Free Exercise Clause of the First Amendment and a federal statute called the Religious Freedom …

Corruption, Constitutions And Crude In Latin America, Fredrick V. Perry, Scheherazade S. Rehman

Fredrick V. Perry

This paper examines the perception of corruption that exists throughout Latin America, and analyses the importance of the institutional environment in Latin American countries, which are both richly endowed with and dependent on oil and natural gas. First, we look at corruption generally in the region and then carry our analysis by looking at various countries’ GDP per capita versus several indices measuring different dimensions of countries’ economic development, political progress, and social performance. We also combine corruption indices and separate them by typology of corruption in order to investigate the particular facets of corruption that pose the greatest impediment …

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

Davis V. United States: The “Good-Faith” Effort To End The Exclusionary Rule, Michael Dunham

Michael Dunham

No abstract provided.

Cell Phone Searches In A Digital World: Blurred Lines, New Realities And Fourth Amendment Pluralism, Steven I. Friedland

Steven I. Friedland

State and federal courts are split over whether cell phone searches incident to a lawful arrest are permissible under the Fourth Amendment. The Supreme Court has the opportunity to create uniformity by accepting a certiorari petition in a cell phone search incident to arrest case, either United States v. Wurie or Riley v. California. The Court should do so to create an analysis that incorporates sensory enhancing technology, not avoids it, as it has done to date.

The split in case law evidences a central contradiction. Fourth Amendment rules need to be predictable and based on clear guidelines for effective …

Taxation Without Limitation: The Prohibited Pretext Doctrine V. The Sebelius Theory, Brett W. Hastings

Brett W Hastings

The Article posits that the Supreme Court erred in its ruling regarding the Affordable Care Act by overlooking a well established constitutional principle, dubbed the Prohibited Pretext Doctrine. This doctrine, which prohibits the exercise of a prohibited power through the pretextual use of a power granted, faded from memory due to the post Lochner era expansion of the Commerce Clause. Nevertheless, the doctrine remains valid law. In overlooking the Prohibited Pretext Doctrine, the Supreme Court established a new and contradictory doctrine, dubbed the Sebelius Theory. The Sebelius Theory turns the Prohibited Pretext Doctrine on its head by explicitly allowing the …

Equilibrium, Adam Lamparello

Adam Lamparello

No abstract provided.

"Rfra Exemptions From The Contraception Mandate: An Unconstitutional Accommodation Of Religion", Frederick Mark Gedicks, Rebecca G. Van Tassell

Frederick Mark Gedicks

Litigation surrounding use of the Religious Freedom Restoration Act to exempt employers from the Affordable Care Act’s “contraception mandate” is moving steadily towards eventual resolution in the U.S. Supreme Court. Both opponents and supporters of the mandate, however, have overlooked Establishment Clause limits on such exemptions. The fiery religious-liberty rhetoric surrounding the mandate has obscured that RFRA is a “permissive” rather than “mandatory” accommodation of religion—that is, a voluntary government concession to religious belief and practice that is not required by the Free Exercise Clause. Permissive accommodations must satisfy Establishment Clause constraints, notably the requirement that the accommodation not impose …

The Second Amendment: A Reasonable Interpretation In The 21st Century, Kaleb D. Wingate

Kaleb D Wingate

The interpretation of the Second Amendment has been the subject of increased litigation throughout the last several years. Challenges to the Second Amendment and related legislation tend to create polarized responses from various political organizations. These responses, commonly in the form of votes in our legislative branch, impede the progress of reasonable measures to reduce instances of violence across the country. Addressing gun violence in our country must be a goal which exceeds the interest of any political affiliate or lobby. This article suggests reasonable measures our government can take to address the growing problems with gun violence in the …

Lost In The Compromise: Free Speech, Criminal Justice, And Attorney Pretrial Publicity, Margaret Tarkington

Margaret C Tarkington

Publicity by the prosecution and defense in the criminal proceedings against George Zimmerman again raised the question of the appropriate scope of First Amendment protection for attorney pretrial publicity. The Supreme Court, the Model Rules of Professional Conduct, and many scholars have viewed restrictions on attorney pretrial publicity as a compromise between the constitutional guarantees of free speech and a fair trial. Nevertheless, scholars advocate widely divergent levels of free speech protection for attorney pretrial publicity—ranging from core free speech protection to extremely limited protection. Traditional First Amendment doctrines fail to elucidate the proper scope of free speech rights for …

Activism, Attitudes, And The Citation Of Precedent In Supreme Court Opinions, Robert R. Robinson

Robert R Robinson

Adherence to precedent provides a legitimizing function for judges. Recent scholarship supports this contention, demonstrating that Supreme Court justices are more likely to cite well-grounded precedent when their opinions face greater scrutiny. In this paper, I continue this line of research by examining whether citation practice varies along individual-level characteristics such as judicial ideology, a propensity for activism, judicial background, and judicial roles. I find that most individual-level factors have little or no impact on how justices ground their opinions in prior precedent, with the exception of judicial activism, which has a moderate negative impact on the centrality of the …

Weather Permitting: Incrementalism, Animus, And The Art (And Sometimes Artifice) In Forecasting Marriage Equality After U.S. V. Windsor, Jeremiah A. Ho

Jeremiah A Ho

Within LGBT rights, the law is abandoning essentialist approaches toward sexual orientation by incrementally de-regulating restrictions on identity expression of sexual minorities. Simultaneously, same-sex marriages are become increasingly recognized on both state and federal levels. This Article examines the Supreme Court’s recent decision, U.S. v. Windsor, as the latest example of these parallel journeys. By overturning DOMA, Windsor normatively revises the previous incrementalist theory for forecasting marriage equality’s progress studied by William Eskridge, Kees Waaldijk, and Yuval Merin. Windsor also represents a moment where the law is abandoning antigay essentialism by using animus-focused jurisprudence for lifting the discrimination against …

Is Brown Holding Us Back? Moving Forward, Sixty Years Later, Palma Joy Strand

palma joy strand

Brown v. Board of Education brought the democratic value of equality to U.S. democracy, which had previously centered primarily on popular control. Brown has not, however, resulted in actual educational equality—or universal educational quality. Developments since Brown have changed the educational landscape. While the social salience of race has evolved, economic inequality has risen dramatically. Legislative and other developments have institutionalized distrust of those who do the day-to-day work of education: public schools and the teachers within them. Demographic and economic shifts have made comprehensive preschool through post-secondary education a 21st-century imperative, while Common Core Standards represent a significant step …

One Toke Over The (State) Line: Constitutional Limits On "Pot Tourism" Restrictions, Brannon P. Denning

Brannon P. Denning

Among the myriad legal issues confronting states like Colorado that are experimenting with the legalization of marijuana is the need to regulate “pot tourism” by persons from other states where marijuana is not legal. In Colorado, the final recommendations from the Amendment 64 Implementation Task Force included a proposal “to limit purchases by state residents to an ounce at a time and to a quarter of an ounce for out-of-state visitors.” The lower restrictions for nonresidents are designed to deter pot tourists from “smurfing”—visiting a number of different dispensaries to accumulate larger amounts of marijuana with a view to illegally …

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

Meg Penrose

This article provides one of the first substantive treatments of United States v. Windsor, the Supreme Court's recent same-sex marriage case. The article's thesis proposes lex loci celebrationis (the place of marriage) as the proper method for determining marriage for federal law purposes. Failure to adopt lex loci celebrationis may violate the Fifth Amendment equal protection guarantee or the constitutional right to travel. Further, adoption of the lex loci celebrationis standard furthers marital stability and predictability.

We The Peoples: The Global Origins Of Constitutional Preambles, Tom Ginsburg, Daniel Rockmore, Nick Foti

Tom Ginsburg

No abstract provided.

The Localization Of Federal Immigration Law -- A "Show Me Your Papers" Paper, J. Gabriel Castro

J. Gabriel Castro

This paper discusses the policy concerns behind state enforcement of federal immigration law, the substance of these laws, and their future following the Supreme Court’s decision in United States v. Arizona. It will also cover what needs to be done for the laws to be repudiated or applied more successfully. Part II will deal with the historical development behind the Supreme Court’s treatment of authority over immigration control and regulation. Part III discusses the reasoning behind the outcome of the case determining the validity of SB 1070, Arizona v. United States. Finally, part IV will look to the future of …

Valuing Our Discordant Constitutional Discourse: Autonomous-Text Constitutionalism And The Jewish Legal Tradition, Shlomo C. Pill

Shlomo C. Pill

This paper considers the viability of autonomous-text constitutionalism, a constitutional interpretive and adjudicative theory based on Hans Georg-Gadamer’s philosophical hermeneutics. As the paper explains, this theory is premised on the subjectivity of all interpretive activity; it admits the legitimacy of a wide spectrum of reasonable interpretations of the Constitution, each given their unique character by the dialectical merging of experiential horizons between the fixed text and individual interpreter. This theory embraces a plurality of constitutional meanings in theory, limited by the need for unity in national spheres of constitutional practice. Such practical certainty is achieved by our empowering judicial institutions …

Snubbed Landmark: How United States V Cruikshank Shaped Constitutional Law And Racialized Class Politics In America, James G. Pope

James G. Pope

No abstract provided.

Visual Gut Punch: Persuasion, Emotion, And The Constitutional Meaning Of Graphic Disclosure, Ellen P. Goodman

ellen p. goodman

The ability of government to “nudge” with information mandates, or merely to inform consumers of risks, is circumscribed by First Amendment interests that have been poorly articulated in the relevant law and commentary. New graphic cigarette warning labels supplied courts with the first opportunity to assess the informational interests attending novel forms of product disclosures. The D.C. Circuit enjoined them as unconstitutional, compelled by a narrative that the graphic labels converted government from objective informer to ideological persuader, shouting its warning to manipulate consumer decisions. This interpretation will leave little room for graphic disclosure and is already being used to …

Daddy Warriors: The Battle To Equalize Paternity Leave In The United States By Breaking Gender Stereotypes; A Fourteenth Amendment Equal Protection Analysis, Abraham Z. Melamed

Abraham Z Melamed

No abstract provided.

Flemming Rose's Rejection Of The American Free Speech Canon And The Poverty Of Comparative Constitutional Theory, Robert Kahn

Robert Kahn

In the fifteen page English language excerpt of his recent memoir The Tyranny of Silence, Danish publisher Flemming Rose gave an extended defense of his decision to run the cartoon images of the Prophet Mohammed. Current First Amendment doctrine almost certainly would treat this act as protected speech. But Rose barely mentions the First Amendment. Instead, he develops a highly personal theory of speech based on his experience in the Soviet Union and discussions with Salman Rushdie. Like many American legal academics Rose opposes bans on hate speech, but he does so for different reasons.

From a comparative law …

Lights, Camera, Arrest: The Stage Is Set For A Federal Resolution Of A Citizen's Right To Record The Police In Public, Taylor R. Robertson

Taylor R Robertson

Grab your cellphone, press the record button, and amaze your friends!

No advertisement like this exists in real life, of course, because the action is already universally automatic—it needs no encouragement or instruction. But aim the camera at the police and you could be arrested and face up to fifteen years in prison under some eavesdropping or wiretapping laws simply for recording the police in public speaking at volumes audible to any unassisted ear. While wiretapping laws were originally intended to protect citizens from the snooping detective, some states have effectively turned these laws into government protection from the watchful …

The Issue Is Being Intersex: The Current Standard Of Care Is A Result Of Ignorance, And It Is Amazing What A Little Analysis Can Conclude., Marla J. Ferguson

marla j ferguson

The Constitution was written to protect and empower all citizens of the United States, including those who are born with Disorders of Sex Development. The medical community, as a whole, is not equipped with the knowledge required to adequately diagnose or treat intersex babies. Intersex simply means that the baby is born with both male and female genitalia. The current method that doctors follow is to choose a sex to assign the baby, and preform irreversible surgery on them without informed consent. Ultimately the intersex babies are mutilated and robbed of many of their fundamental rights; most notably, the right …

Waging War On Specialty Pharmaceutical Tiering In Pharmacy Benefit Design, Chad I. Brooker

Chad I Brooker

Specialty drugs represent a growing concern for both health insurance issuers and beneficiaries given their exceedingly high (and growing) costs—representing almost half of all drug spend by 2017. Payers have sought to reduce their specialty drug spend by sharing more of the cost of these drugs with the beneficiaries who depend on them through the creation of specialty drug tiers. This has forced some patients to choose between forgoing other needs to pay for their medications or not take them at all. While several states have sought to outlaw the use of specialty drug tiers or limit pharmaceutical OOP cost-sharing, …

Constitutional Patriotism: A Reasonable Theory Of Radical Democracy?, Vito Breda

Vito Breda

Since its first appearance just over a decade ago, Habermas's constitutional patriotism has inspired a rich and articulate series of theoretical analyses and has indirectly encouraged constitutional projects such as the Constitution for Europe. The popularity of constitutional patriotism among political and constitutional theorists has, however, also generated some confusion over the aims and basic structure of Habermas's endeavour. For instance, it is unclear whether constitutional patriotism ought to be considered a constitutional or political theory. This paper seeks to clarify some of the misunderstandings surrounding constitutional patriotism. It will contend that the theory is, at its core, a political …

Fetal Personhood Laws As Limits To Maternal Personhood At Any Stage Of Pregnancy: Balancing Fetal & Maternal Interests At Post-Viability Among Fetal Pain & Fetal Homicide Laws, Bernice M. Bird

Bernice M. Bird

Collectively, fetal pain and homicide laws serve to effectively diminish maternal personhood at any stage of pregnancy. At pre-viability, fetal pain laws unconstitutionally infringe on women’s right to reproduce without state interference, as reaffirmed in Planned Parenthood of Southeastern Pennsylvania v. Casey. In tandem, at post-viability, fetal homicide laws act as undue burdens because the laws lack life or health exceptions to maternal prosecution for the death of the fetus. Ultimately, both types of laws encroach on women's liberty interests to continue or terminate pregnancies at all stages. This paper proposes that state fetal pain and homicide laws should only …

Foreign In A Domestic Sense: American Samoa And The Last U.S. Nationals, Sean Morrison

Sean Morrison

Citizenship is part of the foundation of being American. Yet the United States treats some of its own as second class citizens. Deep in the South Pacific, forgotten amidst the vast ocean and coconuts, is a small series of islands that represent the only U.S. jurisdiction below the Equator. American Samoa remains the last American territory that does not recognize its inhabitants as citizens. For more than a century, American Samoans have fought American wars, pledged allegiance to the American flag, and played a significant amount of American football, yet are categorized as U.S. nationals rather than citizens.

Recently, some …

Unringing The Bell: The Government Speech Doctrine And Publicly-Funded Art, John Barlow

John Barlow

No abstract provided.