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Articles 31 - 60 of 495
Full-Text Articles in Law
November 2, 2014: Today’S Papers, Bruce Ledewitz
November 2, 2014: Today’S Papers, Bruce Ledewitz
Hallowed Secularism
Blog post, “Today’s Papers“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
In Re Sanders And The Resurrection Of Stanley V. Illinois, Josh Gupta-Kagan
In Re Sanders And The Resurrection Of Stanley V. Illinois, Josh Gupta-Kagan
Faculty Publications
In 1972, the Supreme Court in Stanley v. Illinois declared that parents are entitled to a hearing on their fitness before the state places their children in foster care. Somewhat oddly, Stanley went on to be cited as a leading case regarding the rights of unwed fathers to object to private adoptions favored by mothers -- an issue not present in Stanley. Odder still, most states routinely violated Stanley in child welfare cases -- the context in which the Stanley rule arose. Most states apply the "one parent doctrine," which holds that finding one parent unfit justifies taking the child …
A House Divided: When State And Lower Federal Courts Disagree On Federal Constitutional Rights, Wayne A. Logan
A House Divided: When State And Lower Federal Courts Disagree On Federal Constitutional Rights, Wayne A. Logan
Scholarly Publications
Despite their many differences, Americans have long been bound by a shared sense of federal constitutional commonality. As this article demonstrates, however, federal constitutional rights do in fact often differ — even within individual states — as a result of state and lower federal court concurrent authority to interpret the Constitution and the lack of any requirement that they defer to one another’s positions. The article provides the first in-depth examination of intra-state, state-federal court conflicts on federal constitutional law and the problems that they create. Focusing on criminal procedure doctrine in particular, with its unique impact on individual liberty …
Rights Speech, Timothy Zick
Rights Speech, Timothy Zick
Faculty Publications
Freedom of expression has a complex and dynamic relationship with a number of other constitutional rights, including abortion, the right to bear arms, equal protection, the franchise, and religious liberty. This Article discusses one aspect of that relationship. It critically analyzes the regulation of "rights speech" - communications about or concerning the recognition, scope, or exercise of constitutional rights. As illustrative examples, the Article focuses on regulation of speech about abortion and the Second Amendment right to bear arms. Governments frequently manage, structure, and limit how individuals discuss constitutional rights. For example, laws and regulations compel physicians to convey information …
Judicial Review And Non-Enforcement At The Founding, Matthew J. Steilen
Judicial Review And Non-Enforcement At The Founding, Matthew J. Steilen
Journal Articles
This Article examines the relationship between judicial review and presidential non-enforcement of statutory law. Defenders of non-enforcement regularly argue that the justification for judicial review that prevailed at the time of the founding also justifies the president in declining to enforce unconstitutional laws. The argument is unsound. This Article shows that there is essentially no historical evidence, from ratification through the first decade under the Constitution, in support of a non-enforcement power. It also shows that the framers repeatedly made statements inconsistent with the supposition that the president could refuse to enforce laws he deemed unconstitutional. In contrast, during this …
Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker
Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker
Faculty Scholarship
In the much-maligned 1985 case Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, the Supreme Court articulated a rule of “ripeness” requiring most Fifth Amendment regulatory-takings claimants to seek “just compensation” in state court before attempting to litigate in federal court. Williamson County and its progeny have opened a Pandora’s box of unforeseen complications, spawning many more questions than they purported to answer. At the forefront is what kind of requirement the rule is anyway. This Article contends that reading Williamson County as grounded in the Constitution (specifically, in Article III or the Fifth Amendment) runs the …
Death, Desuetude, And Original Meaning, John F. Stinneford
Death, Desuetude, And Original Meaning, John F. Stinneford
UF Law Faculty Publications
One of the most common objections to originalism is that it cannot cope with cultural change. One of the most commonly invoked examples of this claimed weakness is the Cruel and Unusual Punishments Clause, whose original meaning would (it is argued) authorize barbaric punishment practices like flogging and branding, and disproportionate punishments like the death penalty for relatively minor offenses. This Article shows that this objection to originalism is inapt, at least with respect to the Cruel and Unusual Punishments Clause. As I have shown in prior articles, the original meaning of “cruel and unusual” is “cruel and contrary to …
October 31, 2014: Pennsylvania Doings, Bruce Ledewitz
October 31, 2014: Pennsylvania Doings, Bruce Ledewitz
Hallowed Secularism
Blog post, “Pennsylvania Doings“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Jefferson's Constitutions, Gerald F. Leonard
Jefferson's Constitutions, Gerald F. Leonard
Faculty Scholarship
Between 1787 and 1840, the Constitution gained a far more democratic meaning than it had had at the Founding, and Thomas Jefferson was a key figure in the process of democratization. But, while more democratic in inclination than many of the Framers, he fell far short of the radically democratic constitutionalism of his most important acolytes, Martin Van Buren and Andrew Jackson. This chapter of Constitutions and the Classics explains that Jefferson was actually much less attached to democracy and more to law as the heart of the republican Constitution. Compared to the 1830s founders of the nation’s democratic Constitution, …
Deal Leaves Court Issues Unresolved, Bruce Ledewitz
Deal Leaves Court Issues Unresolved, Bruce Ledewitz
Ledewitz Papers
Published scholarship collected from academic journals, law reviews, newspaper publications & online periodicals
October 25, 2014: In Our Dark Time, Bruce Ledewitz
October 25, 2014: In Our Dark Time, Bruce Ledewitz
Hallowed Secularism
Blog post, “ In Our Dark Time“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
October 22, 2014: The Panic Over Ebola, Bruce Ledewitz
October 22, 2014: The Panic Over Ebola, Bruce Ledewitz
Hallowed Secularism
Blog post, “The Panic Over Ebola“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Liberty, James E. Fleming, Linda C. Mcclain
Liberty, James E. Fleming, Linda C. Mcclain
Faculty Scholarship
"To secure the blessings of liberty," the Preamble to the US Constitution proclaims, "We the People . . . ordain and establish this Constitution." The Constitution is said to secure liberty through three principal strategies: the design of the Constitution as a whole; structural arrangements, most notably separation of powers andfederalism; and protection of rights. This chapter focuses on this third strategy of protecting liberty, in particular, through the Fifth and Fourteenth Amendments. We first examine the several approaches taken to the "Incorporation" of certain basic liberties "enumerated" in the Bill of Rights to apply to the state governments. We …
October 18, 2014: Can Materialism Be True?, Bruce Ledewitz
October 18, 2014: Can Materialism Be True?, Bruce Ledewitz
Hallowed Secularism
Blog post, “Can Materialism Be True?“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
October 15, 2014: Great News From The Church, Bruce Ledewitz
October 15, 2014: Great News From The Church, Bruce Ledewitz
Hallowed Secularism
Blog post, “Great News from the Church“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
October 12, 2014: Why Judaism Is Dying, Bruce Ledewitz
October 12, 2014: Why Judaism Is Dying, Bruce Ledewitz
Hallowed Secularism
Blog post, “Why Judaism is Dying“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Looking For A Third Option: An Alternate Solution In The Gun Debate, Richard Miyasaki
Looking For A Third Option: An Alternate Solution In The Gun Debate, Richard Miyasaki
GGU Law Review Blog
No abstract provided.
Stop Draggin’ My Heart Around: The Supreme Court Is Harming People With Its Inscrutable Gay Marriage Actions, Sonja R. West, Dahlia Lithwick
Stop Draggin’ My Heart Around: The Supreme Court Is Harming People With Its Inscrutable Gay Marriage Actions, Sonja R. West, Dahlia Lithwick
Popular Media
The Supreme Court’s decision Monday (Oct. 5, 2014) to decline the appeals of decisions striking down same-sex marriage bans in five states was, to most court-watchers, a huge surprise. It was also a deeply strange move given the magnitude of the constitutional issue and the general confusion about what a non-decision actually means. While Monday’s denial of certiorari was not technically a decision on the merits, most supporters of same-sex marriage celebrated the move as part of the justices’ inexorable crawl toward marriage equality. And in Virginia, Oklahoma, Colorado, and other affected states, gay couples who have waited—in many cases …
October 9, 2014: The War Over Islam, Bruce Ledewitz
October 9, 2014: The War Over Islam, Bruce Ledewitz
Hallowed Secularism
Blog post, “The War Over Islam“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
October 5, 2014: The Day After Yom Kippur, Bruce Ledewitz
October 5, 2014: The Day After Yom Kippur, Bruce Ledewitz
Hallowed Secularism
Blog post, “The Day after Yom Kippur“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
October 3, 2014: Democracy Or Secularism, Bruce Ledewitz
October 3, 2014: Democracy Or Secularism, Bruce Ledewitz
Hallowed Secularism
Blog post, “Democracy or Secularism“ discusses politics, theology and the law in relation to religion and public life in the democratic United States of America.
Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson
Sacred Cows, Holy Wars: Exploring The Limits Of Law In The Regulation Of Raw Milk And Kosher Meat, Kenneth Lasson
All Faculty Scholarship
In a free society law and religion seldom coincide comfortably, tending instead to reflect the inherent tension that often resides between the two. This is nowhere more apparent than in America, where the underlying principle upon which the first freedom enunciated by the Constitution's Bill of Rights is based ‒ the separation of church and state – is conceptually at odds with the pragmatic compromises that may be reached. But our adherence to the primacy of individual rights and civil liberties ‒ that any activity must be permitted if it is not imposed upon others without their consent, and if …
Galston On Religion, Conscience, And The Case For Accommodation, Larry Alexander
Galston On Religion, Conscience, And The Case For Accommodation, Larry Alexander
Faculty Scholarship
No abstract provided.
The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin
The Inverse Relationship Between The Constitutionality And Effectiveness Of New York City "Stop And Frisk", Jeffrey Bellin
Faculty Publications
New York City sits at the epicenter of an extraordinary criminal justice phenomenon. While employing aggressive policing tactics, such as “stop and frisk,” on an unprecedented scale, the City dramatically reduced both violent crime and incarceration – with the connections between these developments (if any) hotly disputed. Further clouding the picture, in August 2013, a federal district court ruled the City’s heavy reliance on “stop and frisk” unconstitutional. Popular and academic commentary generally highlights isolated pieces of this complex story, constructing an incomplete vision of the lessons to be drawn from the New York experience. This Article brings together all …
Constitutional Remedies: Reconciling Official Immunity With The Vindication Of Rights, Michael Wells
Constitutional Remedies: Reconciling Official Immunity With The Vindication Of Rights, Michael Wells
Scholarly Works
A great deal of scholarly attention is devoted to constitutional rights and comparatively little to remedies for their violation. Yet rights without remedies are not worth much, and remedial law does not always facilitate the enforcement of rights, even of constitutional rights. This Article discusses an especially challenging remedial context: suits seeking damages for constitutional wrongs that occurred in the past, that are unlikely to recur, and hence that cannot be remedied by forward-looking injunctive or declaratory relief. Typical fact patterns include charges that the police, prison guards, school administrators, or other officials have engaged in illegal searches and seizures, …
Substantive Habeas, Kimberly A. Thomas
Substantive Habeas, Kimberly A. Thomas
Articles
Substantive Habeas identifies the US. Supreme Court's recent shift in its habeas jurisprudence from procedure to the substance of habeas review and explores the implications of this change. For decades, the US. Supreme Court has attempted to control the flood of habeas corpus petitions by imposing procedural requirements on prisoners seeking to challenge constitutional error in their cases. These restrictive procedural rules have remained at the center of habeas decision making until recently. Over the past few years, instead of further constraining the procedural gateway for habeas cases, the Supreme Court has shifted its focus to the substance of habeas. …
Tinkering With Success: College Athletes, Social Media And The First Amendment, Meg Penrose
Tinkering With Success: College Athletes, Social Media And The First Amendment, Meg Penrose
Faculty Scholarship
Good law does not always make good policy. This article seeks to provide a legal assessment, not a policy directive. The policy choices made by individual institutions and athletic departments should be guided by law, but absolutely left to institutional discretion. Many articles written on college student-athletes' social media usage attempt to urge policy directives clothed in constitutional analysis.
In this author's opinion, these articles have lost perspective-constitutional perspective. This article seeks primarily to provide a legal and constitutional assessment so that schools and their athletic departments will have ample information to then make their own policy choices.
Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker
Justifying A Prudential Solution To The Williamson County Ripeness Puzzle, Katherine Mims Crocker
Faculty Publications
No abstract provided.
Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbullying Laws, Emily F. Suski
Beyond The Schoolhouse Gates: The Unprecedented Expansion Of School Surveillance Authority Under Cyberbullying Laws, Emily F. Suski
Faculty Publications By Year
For several years, states have grappled with the problem of cyberbullying and its sometimes devastating effects. Because cyberbullying often occurs between students, most states have understandably looked to schools to help address the problem. To that end, schools in forty-six states have the authority to intervene when students engage in cyberbullying. This solution seems all to the good unless a close examination of the cyberbullying laws and their implications is made. This Article explores some of the problematic implications of the cyberbullying laws. More specifically, it focuses on how the cyberbullying laws allow schools unprecedented surveillance authority over students. This …
Future Of The Fourth Amendment: The Problem With Privacy, Poverty And Policing, Kami Chavis Simmons
Future Of The Fourth Amendment: The Problem With Privacy, Poverty And Policing, Kami Chavis Simmons
Faculty Publications
For decades, the reasonable expectation of privacy has been the primary standard by which courts have determined whether a "search" has occurred within the meaning of the Fourth Amendment. The Supreme Court's recent decision in U.S. v. Jones, however, has reinvigorated the physical trespass doctrine's importance when determining whether there has been a "search" triggering constitutional protection. Recognizing the unpredictability of the reasonable expectation of privacy doctrine and that doctrine's bias against the urban poor, many scholars hope that the Jones opinion may ameliorate the class divide that has developed in Fourth Amendment jurisprudence.
This Article argues that while …