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Full-Text Articles in Law
Eldred & The New Rationality, Brian L. Frye
Eldred & The New Rationality, Brian L. Frye
Law Faculty Scholarly Articles
Historically, the rational basis test has been a constitutional rubber stamp. In Eldred v. Ashcroft and Golan v. Holder, the Supreme Court applied the rational basis test and respectively held that Congress could extend the copyright term of existing works and restore copyright protection of public domain works, despite evidence that Congress intended to benefit copyright owners at the expense of the public. But in Lawrence v. Texas and United States v. Windsor, the Supreme Court seems to have applied the rational basis test and held that state and federal laws were unconstitutional because they were motivated by …
The Right To Vote Under State Constitutions, Joshua A. Douglas
The Right To Vote Under State Constitutions, Joshua A. Douglas
Law Faculty Scholarly Articles
This Article provides the first comprehensive look at state constitutional provisions explicitly granting the right to vote. We hear that the right to vote is "fundamental," the "essence of a democratic society," and "preservative of all rights." But courts and scholars are still searching for a solution to the puzzle of how best to protect voting rights, especially because the U.S. Supreme Court has underenforced the right to vote. The answer, however, is right in front of us: state constitutions. Virtually every state constitution includes direct, explicit language granting the right to vote, as contrasted with the U.S. Constitution, which …
The Dialectic Of Obscenity, Brian L. Frye
The Dialectic Of Obscenity, Brian L. Frye
Law Faculty Scholarly Articles
Until the 1960s, pornography was obscene, and obscenity prosecutions were relatively common. And until the 1970s, obscenity prosecutions targeted art, as well as pornography. But today, obscenity prosecutions are rare and limited to the most extreme forms of pornography.
So why did obscenity largely disappear? The conventional history of obscenity is doctrinal, holding that the Supreme Court’s redefinition of obscenity in order to protect art inevitably required the protection of pornography as well. In other words, art and literature were the vanguard of pornography.
But the conventional history of obscenity is incomplete. While it accounts for the development of obscenity …
Eliminating The Exception? Lawrence V. Texas And The Arguments For Extending The Right To Marry To Same-Sex Couples, Tyler S. Whitty
Eliminating The Exception? Lawrence V. Texas And The Arguments For Extending The Right To Marry To Same-Sex Couples, Tyler S. Whitty
Kentucky Law Journal
No abstract provided.
A Comment On The Litigation Strategy, Judicial Politics And Political Context Which Produced Grutter And Gratz, Sheryl G. Snyder
A Comment On The Litigation Strategy, Judicial Politics And Political Context Which Produced Grutter And Gratz, Sheryl G. Snyder
Kentucky Law Journal
No abstract provided.
Affirmative Action In The Workplace: The Significance Of Grutter?, Rebecca Hanner White
Affirmative Action In The Workplace: The Significance Of Grutter?, Rebecca Hanner White
Kentucky Law Journal
No abstract provided.
Federalism And The Federal Prosecution Of State And Local Corruption, Peter J. Henning
Federalism And The Federal Prosecution Of State And Local Corruption, Peter J. Henning
Kentucky Law Journal
No abstract provided.
Affirmative Action, Race, And The Constitution: From Bakke To Grutter, Robert A. Sedler
Affirmative Action, Race, And The Constitution: From Bakke To Grutter, Robert A. Sedler
Kentucky Law Journal
No abstract provided.
Race Conscious Affirmative Action By Tax Exempt 501(C)(3) Corporations After Grutter And Gratz, David A. Brennen
Race Conscious Affirmative Action By Tax Exempt 501(C)(3) Corporations After Grutter And Gratz, David A. Brennen
Law Faculty Scholarly Articles
The Equal Protection Clause of the Fourteenth Amendment generally acts as a legal limit on the permissible bounds of government action. Accordingly, public universities and other government entities are constitutionally prohibited from engaging in acts that violate equal protection of the laws. The Supreme Court recently reinforced this point when it ruled, in two related cases, that public universities may consider the race of applicants when making admissions decisions, so long as an applicant's race does not amount to a deciding factor when granting admission. By its very terms, the constitutional limitation imposed by the Equal Protection Clause only directly …
Quo Vadis: The Continuing Metamorphosis Of The Establishment Clause Toward Realistic Substantive Neutrality, Paul E. Salamanca
Quo Vadis: The Continuing Metamorphosis Of The Establishment Clause Toward Realistic Substantive Neutrality, Paul E. Salamanca
Law Faculty Scholarly Articles
For years, the rhetoric of substantive neutrality has dominated interpretation of the Establishment Clause. Under this approach, courts and commentators purport to ask whether a public policy under scrutiny is likely to affect religious choices in an unacceptable way. In fact, so broadly has this approach been taken that both separationists and accommodationists resort to it freely, although with radically differing perceptions as to when policy becomes unacceptable. Arguably, however, adherents to this approach have paid insufficient attention to religious behavior per se. Had they paid sufficient attention to this phenomenon, they would have been forced to acknowledge that little …
Choice Programs And Market-Based Separationism, Paul E. Salamanca
Choice Programs And Market-Based Separationism, Paul E. Salamanca
Law Faculty Scholarly Articles
The Supreme Court's recent decision in Zelman v. Simmons-Harris appears to clear the way for a wide variety of educational and charitable choice plans. In this decision, the Court upheld against Establishment Cause Challenge a formally neutral school choice program that encompassed a wide variety of options in the public and private sector, including private sectarian schools. The Court reasoned that, when the government makes aid available to a broad class of recipients without regard to their religious or non-religious affiliation, and when the recipients have a genuine choice as to whether to obtain that aid from a religious or …
The Diversity And Remedial Interests In University Admissions Programs, Kathryne Raines
The Diversity And Remedial Interests In University Admissions Programs, Kathryne Raines
Kentucky Law Journal
No abstract provided.
Due Process And Kentucky's Non-Claim Statutes: A Call For Legislative Revision, Mark A. Noel
Due Process And Kentucky's Non-Claim Statutes: A Call For Legislative Revision, Mark A. Noel
Kentucky Law Journal
No abstract provided.
Prayer In Public Schools After Santa Fe Independent School District, Mark W. Cordes
Prayer In Public Schools After Santa Fe Independent School District, Mark W. Cordes
Kentucky Law Journal
No abstract provided.
Constitutional Standards For Suspicionless Student Drug Testing: A Moving Target, Benjamin Gerald Dusing
Constitutional Standards For Suspicionless Student Drug Testing: A Moving Target, Benjamin Gerald Dusing
Kentucky Law Journal
No abstract provided.
Equal Protection, Rational Basis Review, And The Impact Of Cleburne Living Center, Inc., Richard B. Saphire
Equal Protection, Rational Basis Review, And The Impact Of Cleburne Living Center, Inc., Richard B. Saphire
Kentucky Law Journal
No abstract provided.
The Long Road Towards Restoration Of Religious Freedom: Congressional Options In Light Of City Of Boerne V. Flores, J. Jeffrey Patterson
The Long Road Towards Restoration Of Religious Freedom: Congressional Options In Light Of City Of Boerne V. Flores, J. Jeffrey Patterson
Kentucky Law Journal
No abstract provided.
The Role Of Religion In Public Life And Official Pressure To Participate In Alcoholics Anonymous, Paul E. Salamanca
The Role Of Religion In Public Life And Official Pressure To Participate In Alcoholics Anonymous, Paul E. Salamanca
Law Faculty Scholarly Articles
If religion is an innate aspect of the human experience, it should not be surprising that Alcoholics Anonymous (A.A.), a widely known and arguably religious support group for problem drinkers, has become a common and effective means of combating alcoholism. Also, it should not be surprising that probation officers, parole officers, judges, bar overseers, wardens, and myriad others exercising state authority routinely push individuals toward A.A. Arguably, however, official referral of problem drinkers to A.A. violates current interpretations of the Establishment Clause because of the quasi-religious nature of the program.
Although separationism helps both church and state, our Constitution does, …
At Loggerheads: The Supreme Court And Racial Equality In Public School Education After Missouri V. Jenkins, Roberta M. Harding
At Loggerheads: The Supreme Court And Racial Equality In Public School Education After Missouri V. Jenkins, Roberta M. Harding
Law Faculty Scholarly Articles
June 12th of 1995 marked a somber occasion in the annals of school desegregation litigation. On that day, the United States Supreme Court sent disturbing messages in its opinion in Missouri v. Jenkins. The Court's decision hinders achievement of the objective of school desegregation litigation—providing equal educational opportunities for African-American public school children—and detrimentally impacts other substantive areas of civil rights litigation. This article examines what I believe are several important general consequences of Jenkins's the impairment of a trial judge's discretionary equitable remedial powers; the Court's establishment of a new agenda that sacrifices the interests of African-American …
Proportionality In Non-Capital Sentencing: The Supreme Court's Tortured Approach To Cruel And Unusual Punishment, Steven Grossman
Proportionality In Non-Capital Sentencing: The Supreme Court's Tortured Approach To Cruel And Unusual Punishment, Steven Grossman
Kentucky Law Journal
No abstract provided.
Wild Dunes And Serbonian Bogs: The Impact Of The Lucas Decision On Shoreline Protection Programs, Richard C. Ausness
Wild Dunes And Serbonian Bogs: The Impact Of The Lucas Decision On Shoreline Protection Programs, Richard C. Ausness
Law Faculty Scholarly Articles
In Lucas v. South Carolina Coastal Council, the United Supreme Court was forced once again to delve into the law of regulatory takings. This experience is seldom a pleasant one. Echoing the poet John Milton, an exasperated state court judge once described takings law as a “Serbonian Bog.” Unfortunately, the takings doctrine is only slightly more comprehensible after the Lucas decision than it was before. Nevertheless, progress in this area, however modest, deserves praise, and the Court is to be commended for clarifying one aspect of takings jurisprudence. As a result of Lucas a “categorical rule” has been announced …
White On White: Anonymous Tips, Reasonable Suspicion, And The Constitution, David S. Rudstein
White On White: Anonymous Tips, Reasonable Suspicion, And The Constitution, David S. Rudstein
Kentucky Law Journal
No abstract provided.
"I Vote This Way Because I'M Wrong": The Supreme Court Justice As Epimenides, John M. Rogers
"I Vote This Way Because I'M Wrong": The Supreme Court Justice As Epimenides, John M. Rogers
Law Faculty Scholarly Articles
Possibly the most unsettling phenomenon in the Supreme Court's 1988 term was Justice White's decision to vote contrary to his own exhaustively stated reasoning in Pennsylvania v. Union Gas Co. His unexplained decision to vote against the result of his own analysis lends support to those who argue that law, or at least constitutional law, is fundamentally indeterminate. Proponents of the indeterminacy argument sometimes base their position on the allegedly inescapable inconsistency of decisions made by a multi-member court. There is an answer to the inconsistency argument, but it founders if justices sometimes vote, without explanation, on the basis of …
The Independence Of The Judiciary: A Critical Aspect Of The Confirmation Process, Randall R. Rader
The Independence Of The Judiciary: A Critical Aspect Of The Confirmation Process, Randall R. Rader
Kentucky Law Journal
No abstract provided.
Commentary On Senate Confirmation Of Supreme Court Justices, Thomas P. Lewis
Commentary On Senate Confirmation Of Supreme Court Justices, Thomas P. Lewis
Kentucky Law Journal
No abstract provided.
The Role Of Ideology In Senate Confirmation Of Supreme Court Justices, Jeffrey A. Segal, Albert D. Cover, Charles M. Cameron
The Role Of Ideology In Senate Confirmation Of Supreme Court Justices, Jeffrey A. Segal, Albert D. Cover, Charles M. Cameron
Kentucky Law Journal
No abstract provided.
The Changing Importance Of Ideology, Party, And Region In Confirmation Of Supreme Court Nominees, 1953-1988, John D. Felice, Herbert F. Weisberg
The Changing Importance Of Ideology, Party, And Region In Confirmation Of Supreme Court Nominees, 1953-1988, John D. Felice, Herbert F. Weisberg
Kentucky Law Journal
No abstract provided.
Commentary On Senate Confirmation Of Supreme Court Justices: The Roles Of Organized And Unorganized Interests, Gregory A. Caldeira
Commentary On Senate Confirmation Of Supreme Court Justices: The Roles Of Organized And Unorganized Interests, Gregory A. Caldeira
Kentucky Law Journal
No abstract provided.
The Unwed Father And The Right To Know Of His Child's Existence, John R. Hamilton
The Unwed Father And The Right To Know Of His Child's Existence, John R. Hamilton
Kentucky Law Journal
No abstract provided.
The Establishment Clause And Nativity Scenes: A Reassessment Of Lynch V. Donnelly, Richard S. Myers
The Establishment Clause And Nativity Scenes: A Reassessment Of Lynch V. Donnelly, Richard S. Myers
Kentucky Law Journal
No abstract provided.