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Full-Text Articles in Law
Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman
Hollingsworth V. Perry, Brief For Foreign And Comparative Law Experts Harold Hongju Koh Et. Al. As Amici Curiae Supporting Respondents, Harold Hongju Koh, Sarah H. Cleveland, Laurence R. Helfer, Ryan Goodman
Faculty Scholarship
No abstract provided.
Analogies And Institutions In The First And Second Amendments: A Response To Professor Magarian, Darrell A.H. Miller
Analogies And Institutions In The First And Second Amendments: A Response To Professor Magarian, Darrell A.H. Miller
Faculty Scholarship
In this essay, Professor Darrell Miller responds to Professor Gregory Magarian's criticism of the manner in which judges, advocates, and scholars have used the First Amendment to frame Second Amendment interpretive questions.
Second Things First: What Free Speech Can And Can’T Say About Guns, Joseph Blocher
Second Things First: What Free Speech Can And Can’T Say About Guns, Joseph Blocher
Faculty Scholarship
Professor Blocher responds to Gregory Magarian’s article on the implications of the First Amendment for the Second.
Rights To And Not To, Joseph Blocher
Rights To And Not To, Joseph Blocher
Faculty Scholarship
When and why should a “right to” include a “right not to”? If a person has a right to engage in an activity or to receive a particular form of procedural protection, under what circumstances should he also have a right not to engage in that activity or to refuse that process? The basic project of this Article is to show why these questions are important in American constitutional law, to explore how doctrine and scholarship have implicitly and sometimes awkwardly dealt with them, and to suggest normative frameworks with which they can be answered.
The Right Not To Keep Or Bear Arms, Joseph Blocher
The Right Not To Keep Or Bear Arms, Joseph Blocher
Faculty Scholarship
Sometimes a constitutional right to do a particular thing is accompanied by a right not to do that thing. The First Amendment, for example, guarantees both the right to speak and the right not to speak. This Article asks whether the Second Amendment should likewise be read to encompass both the right to keep or bear arms for self-defense and the inverse right to protect oneself by avoiding them, and what practical implications, if any, the latter right would have. The Article concludes - albeit with some important qualifications - that a right not to keep or bear arms is …
The United States And Human Rights Treaties: Race Relations, The Cold War, And Constitutionalism, Curtis A. Bradley
The United States And Human Rights Treaties: Race Relations, The Cold War, And Constitutionalism, Curtis A. Bradley
Faculty Scholarship
The United States prides itself on being a champion of human rights and pressures other countries to improve their human rights practices, and yet appears less willing than other nations to embrace international human rights treaties. Many commentators attribute this phenomenon to the particular historical context that existed in the late 1940s and early 1950s when human rights treaties were first being developed. These commentators especially emphasize the race relations of the time, noting that some conservatives resisted the developing human rights regime because they saw it as an effort by the federal government to extend its authority to address …
The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne
The Unbearable Lightness Of Marriage In The Abortion Decisions Of The Supreme Court: Altered States In Constitutional Law, William W. Van Alstyne
Faculty Scholarship
No abstract provided.
A System Of Wholesale Denial Of Rights, Michael E. Tigar
A System Of Wholesale Denial Of Rights, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Universal Rights And Wrongs, Michael E. Tigar
Universal Rights And Wrongs, Michael E. Tigar
Faculty Scholarship
No abstract provided.
Rights, Rules And The Structure Of Constitutional Adjudication: A Response To Professor Fallon, Matthew D. Adler
Rights, Rules And The Structure Of Constitutional Adjudication: A Response To Professor Fallon, Matthew D. Adler
Faculty Scholarship
Constitutional doctrine is typically rule-dependent. A viable constitutional challenge typically hinges upon the existence of a discriminatory, overbroad, improperly motivated, or otherwise invalid rule, to which the claimant has some nexus. In a prior article, Prof. Adler proposed one model of constitutional adjudication that tries to make sense of rule-dependence. He argued that reviewing courts are not vindicating the personal rights of claimants, but rather are repealing or amending invalid rules. IN a Commentary in this issue, Professor Fallon now puts forward a different model of constitutional adjudication, equally consistent with rule-dependence. Fallon proposes that a reviewing court should overturn …
Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler
Personal Rights And Rule Dependence: Can The Two Co-Exist?, Matthew D. Adler
Faculty Scholarship
Constitutional doctrine is typically "rule-dependent." Typically, a constitutional litigant will not prevail unless she can show that a particular kind of legal rule is in force, e.g., a rule that discriminates against "suspect classes" in violation of the Equal Protection Clause, or that targets speech in violation of the First Amendment, or that is motivated by a religious purpose in violation of the Establishment Clause. Further, the litigant must typically establish a violation of her "personal rights." The Supreme Court has consistently stated that a reviewing court should not invalidate an unconstitutional governmental action at the instance of a claimant …
Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler
Rights Against Rules: The Moral Structure Of American Constitutional Law, Matthew D. Adler
Faculty Scholarship
Constitutional rights are conventionally thought to be "personal" rights. The successful constitutional litigant is thought to have a valid claim that some constitutional wrong has or would be been done "to her"; the case of "overbreadth," where a litigant prevails even though her own conduct is permissibly regulated, is thought to be unique to the First Amendment. This "personal" or "as-applied" view of constitutional adjudication has been consistently and pervasively endorsed by the Supreme Court, and is standardly adopted by legal scholars.
In this Article, I argue that the conventional view is incorrect. Constitutional rights, I claim, are rights against …
The Constitutional Rights Of Public Employees: A Comment On The Inappropriate Uses Of An Old Analogy, William W. Van Alstyne
The Constitutional Rights Of Public Employees: A Comment On The Inappropriate Uses Of An Old Analogy, William W. Van Alstyne
Faculty Scholarship
Beginning with Justice Douglass's assertion that the State is bound in the same ways when acting as an employer as it is when acting as a governing body, this examination delves deeper to determine how this doctrine actually limits the government when it acts as an employer. This article endorses the theory of examining these limits not in the context of if the government is allowed to enforce them in the public sphere, but if the government may mandate such limits in the private sphere