Law Commons^™

Children's Oppression, Rights And Liberation, Samantha Godwin

Samantha Godwin

This paper advances a radical and controversial analysis of the legal status of children. I argue that the denial of equal rights and equal protection to children under the law is inconsistent with liberal and progressive beliefs about social justice and fairness. In order to do this I first situate children’s legal and social status in its historical context, examining popular assumptions about children and their rights, and expose the false necessity of children’s current legal status. I then offer a philosophical analysis for why children’s present subordination is unjust, and an explanation of how society could be sensibly and …

Nonpublic Reasons And Political Paradigm Change, Ian C. Bartrum

Ian C Bartrum

This article was a contribution to the 2010 Religious Legal Theory symposium held at St. John's Law School.

John Rawls famously argued that citizens in a just democracy have a moral duty to ensure that “the principles and policies they advocate and vote for can be supported by the political values of public reason.” This so-called “duty of civility” obligates us to cast our votes on “constitutional questions and matters of basic justice” for reasons that we can explain in terms of the public good and the “ideals and principles expressed by society’s conception of political justice.” Rawls contrasts these …

Why The Demands Of Formalism Will Prevent New Originalism From Furthering Conservative Political Goals, Daniel Hornal

Daniel Hornal

Proponents of New Originalism propose that their modifications solve the indeterminacy and predictability problems inherent in early conceptions of originalism. This paper argues that excluding extrinsic evidence and relying only on the formal implications of the text merely switches one indeterminacy and predictability problem for another. Rules inherently carry implications unknown to rule writers. In the case of open-textured rules such as those in the Constitution, a broad reading can occupy whole fields of law, whereas a narrow reading can have almost no real-world effects. Because they must ignore extrinsic evidence, new originalists are almost unbound in their choice of …

Personae Non Suspect: Sexual Orientation Discrimination Under The Supreme Court’S New Anticlassification Regime, Chris R. Copeland

Chris R Copeland

As Perry v. Schwarzenegger seemingly makes its way to the Supreme Court, LGBT advocates are staking their legal claims around the Fourteenth Amendment’s Equal Protection Clause – arguing for the designation of LGBTs as a suspect or quasi-suspect group. The desire for suspect class designation is in vain though. In the late 1970s, the Supreme Court closed the set of suspect and quasi-classifications, and the set will likely remain closed. Around the same time, the Court faced a series of affirmative action cases in which it was forced to choose between two approaches to equal protection: antisubordination and anticlassification. It …