Law Commons^™

Editorial, Succession Question Requires Amendment, Randy Lee

Randy Lee

No abstract provided.

Baker V. State And The Promise Of The New Judicial Federalism, Charles Baron, Lawrence Friedman

Charles H. Baron

In Baker v. State, the Supreme Court of Vermont ruled that the state constitution’s Common Benefits Clause prohibits the exclusion of same-sex couples from the benefits and protections of marriage. Baker has been praised by constitutional scholars as a prototypical example of the New Judicial Federalism. The authors agree, asserting that the decision sets a standard for constitutional discourse by dint of the manner in which each of the opinions connects and responds to the others, pulls together arguments from other state and federal constitutional authorities, and provides a clear basis for subsequent development of constitutional principle. This Article explores …

Closet Case: Boy Scouts Of America V. Dale And The Reinforcement Of Gay, Lesbian, Bisexual, And Transgender Invisibility, Darren Hutchinson

Darren L Hutchinson

This Article argues that the Supreme Court's decision in Boy Scouts of America v. Dale misapplies and ignores controlling First Amendment precedent and incorrectly defines "sexual identity" as a clinical or biological imposition that exists apart from expression or speech. This article provides a doctrinal alternative to Dale that would protect vital interests in both equality and liberty and that would not condition, as does Dale, sexual "equality" upon the silencing of gay lesbian, bisexual, and transgender individuals.

Ultra Vires Lives! A Stakeholder Analysis Of Corporate Illegality (With Notes On How Corporate Law Could Reinforce International Law Norms), Kent Greenfield

Kent Greenfield

This paper argues that a remaining vestige of the ultra vires doctrine sets off illegal activities as "beyond the power" of corporations. Though largely unnoticed and unexamined until now, this part of the doctrine has been retained because none of the important corporate stakeholders has an interest in authorizing the corporation and its managers to commit illegal acts. From an ex ante perspective, the principal stakeholders in the corporate contract would want the corporation and its management to forego illegalities as a way to increase the value of the firm. Any of the stakeholders would be a potential victim of …

La Bioética En Las Constituciones Del Mundo (Máxima Protección Al Ser Humano Que Deberá Ofrecer La Constitución Política Del Perú, Enrique Varsi

Enrique Varsi Rospigliosi

No abstract provided.

Memorandum Of Argument For Leave To Appeal Of The Appellant James R. Demers, Court Of Appeal For Province Of British Columbia, Jeffrey C. Tuomala

Jeffrey C. Tuomala

No abstract provided.

Licensing Speech: The Case Of Vanity Plates, Marybeth Herald

Marybeth Herald

Vanity license plates qualify as protected speech under the First Amendment, and denying plate requests because of their content contradicts traditional principles of free speech. State motor vehicle departments are almost as creative as applicants when it comes to ferreting out offensive license plate requests through the use of computer programs and linguists. Offensiveness, however, remains an elusive concept to capture and often lies in the eyes of a single viewer. When the government takes on the role of arbiter of good taste, it leads to arbitrary decision making and chaotic results.

Under traditional First Amendment doctrine, vanity license plates …

Professionalism Lost: Where Have You Gone Atticus Finch? Our Nation Turns Its Lonely Eyes To You..., Beau James Brock

Beau James Brock

Attorney are only, as a group, what the public preceives us to be. Whether that be as knights in shining armor or as something far less noble.

China's Post-Modern Legal Research And Its Prospects（中国的后现代法学研究及其前景）, Meng Hou

Hou Meng

No abstract provided.

El Documento Y La Firma Digital En El Derecho Argentino, Horacio M. Lynch

Horacio M. LYNCH

No abstract provided.

Bare Naked Value Choice, Harry F. Tepker Jr.

Harry F. Tepker Jr.

No abstract provided.

In The Wake Of Lee V. Weisman: The Future Of School Graduation Prayer Is Uncertain At Best, Stephen Durden

Stephen Durden

No abstract provided.

Nude Entertainment Zoning, Stephen Durden

Stephen Durden

Local government regulation, as opposed to prohibition, of nude entertainment began in earnest in the 1970's. These regulations generally fell into four categories: (1) zoning; (2) prohibiting nude entertainment in conjunction with the service of alcohol; (3) licensing; and (4) regulating conduct, e.g., hours of operation, distance from customers, prohibition of private booths. The proliferation of these many and varied approaches began soon after the Supreme Court in California v. LaRue held that nude dancing is, or at least might be, protected by the First Amendment. Prior to LaRue, states regularly prohibited nude entertainment via general prohibitions on lewd and …

Arguments In Favour Of A Functional Theory Of Fundamental Rights, Gianluigi Palombella

Gianluigi Palombella

The article suggests a relational concept of fundamental rights. This concept

enhances the «functional» rôle played by some of the rights in the system of a state

governed by the rule of law, rather than an ethical universality or a substantial content

coinciding with any list of «human» rights. Fundamental rights belong to the fundamental

(ideal, substantice and normative) criteria of recognition/selection of actions and norms in

the institutional/normative practice of a legal order. Given this premise, the work analyses

some relevant issues: universal-fundamental nexus, property rights, liberty rights, social

rights. Fundamental rights refuse any rigid classification which identifies and …

James Madison And The Constitution's “Convention For Proposing Amendments", Robert G. Natelson

Robert G. Natelson

This article traces the progress of James Madison's thought on the Constitution's "convention for proposing amendments as a way for states to assert themselves against the federal government. Madison saw the convention as an important part of the Constitution, and a constitutional alternative to nullification.

Free Speech, Toxic Tort, And The Battle Of Sugar Creek, Robert R.M. Verchick

Robert R.M. Verchick

No abstract provided.

Integration Without Classification: Moving Toward Race-Neutrality In The Pursuit Of Public Elementary And Secondary School Diversity, Paul Diller

Paul Diller

No abstract provided.

"Simply So Different": The Uniquely Expressive Character Of The Openly Gay Individual After Boy Scouts V. Dale, Nancy J. Knauer

Nancy J. Knauer

Boy Scouts v. Dale was uniformly considered a set back for gay rights. Undeniably, it was not a good result for James Dale or other openly gay individuals who would like to participate in the largest youth organization in the U.S. This Article views Boy Scouts v. Dale in a different light and suggests that the expressive character of the openly gay individual endorsed by the majority may signal an opportunity to argue for greater First Amendment protections. The majority recognized that a single avowal of homosexuality imbues the openly gay individual with a uniquely expressive character. Wherever he goes, …

Monica Lewinsky, Impeachment, And The Death Of The Independent Counsel Law: What Congress Can Salvage From The Wreckage - A Minimalist View, Ken Gormley

Ken Gormley

No abstract provided.

Identity Crisis: Intersectionality, Multidimensionality, And The Development Of An Adequate Theory Of Subordination, Darren Hutchinson

Darren L Hutchinson

No abstract provided.

Internet Privacy And Self-Regulation: Lessons From The Porn Wars, Tom Bell

Tom W. Bell

The availability and adequacy of technical remedies ought to play a crucial role in evaluating the propriety of state action with regard to both the inhibition of Internet pornography and the promotion of Internet privacy. Legislation that would have restricted Internet speech considered indecent or harmful to minors has already faced and failed that test. Several prominent organizations dedicated to preserving civiI Iiberties argued successfully that self -help technologies offered less-restrictive means of achieving the purported ends of such legislation, rendering it unconstitutional. Surprisingly, those same organizations have of late joined the call for subjecting another kind of speech—speech by …

Partiality, Julie Nice

Julie A. Nice

This essay is the introduction for a Symposium on Class in LatCrit: Theory and Praxis in a World of Economic Inequality. Professor Nice describes the symposium papers (by Kendal Broad, Lisa Sun-Hee Park, Athena Mutua, and Laura Padilla) as applying various critical tools to examine how scholars study poverty and especially how the construct of “the feminization of poverty” isolates gender while leaving out other experiences of race, immigration status, sexual orientation, parental status, age, ability, and class. While she argues that the feminization of poverty construct itself emerged as a critique of how gender had been ignored in the …

How Will You Know I Love You, Randy Lee

Randy Lee

No abstract provided.

Toward A Comparative Economics Of Plea Bargaining (With Thomas Miceli), Richard Adelstein

Richard Adelstein

A comparison of adversarial and inquisitorial approaches to criminal adjudication and its implications for plea bargaining.

In Defense Of Representative Democracy: A Reply To Erwin Chemerinsky, Michael Scaperlanda

Michael A. Scaperlanda

No abstract provided.

Clothes For The Emperor, Katheleen R. Guzman

Katheleen R. Guzman

No abstract provided.

An Arrow To The Heart: The Love And Death Of Postmodern Legal Scholarship, Stephen M. Feldman

Stephen M. Feldman

This Article responds to two critiques of postmodern legal scholarship published by Dennis W. Arrow in the Michigan and Texas Law Reviews. Arrow raises the modernist criticisms that are most often leveled against postmodern legal scholars. If Arrow and the other critics were to be believed, postmodernists are muddle-headed thinkers who write indecipherable jargon-filled nonsense. Even worse, they are irresponsible nihilists who lack political convictions. Such criticisms of postmodernism are unpersuasive because the typical modernist depiction of postmodern legal thought is seriously inaccurate. It is little more than a caricature.The modernists, in other words, are imprecise and downright wrong. Now, …

Yes, Virginia (Tech), Our Government Is One Of Limited Powers, Michael R. Dimino

Michael R Dimino

The Role Of State Processes In The Production Of ‘Ethnic’ Conflict: The Nation-State Dialectic, Europeanisation And Globalisation, Nicos Trimikliniotis

Nicos Trimikliniotis

This paper sets out to theorise the production of ‘ethnic’ and ‘national’ conflict via the complex interrelation between ‘Nation’ and ‘State’, in what is termed as the nation-state dialectic. It considers the production of ‘ethnic conflict’ and the role of nationalism, the state and class politics. It theorises the State as a social relation and as a power structure and then proceeds in linking it to the emergence of the nation-state construct. In theorising ‘the State’, the attempt is to go beyond considering it merely as a juridical-legal apparatus of power in a given territory, but to explore it also …

Europeanisation And Modernisation: Locating Cyprus In The Southern European Context, Nicos Trimikliniotis

Nicos Trimikliniotis

The question of ‘modernisation’ of the state in Cyprus has recently received a great deal of attention in Cypriot politics. During the last Parliamentary elections in May 2000, the question of ‘modernisation’ entered the political dictionary of the mainstream parties. All political forces professed to be ‘European’, they pledged commitment to the EU accession process and the debate over ‘modernisation’ was closely linked to the policies of harmonisation with the EU in the light of accession. However, little critical work exists to examine Europeanisation that assesses the specific policies employed, the policy goals and kind of issues the processes entails. …