Law Commons^™

Government Falsehoods, Democratic Harm, And The Constitution, Helen Norton

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No abstract provided.

Making Litigating Citizenship More Fair, Ming H. Chen

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Do Abolitionism And Constitutionalism Mix?, Aya Gruber

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Reproductive Health Care Exceptionalism And The Pandemic, Helen Norton

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Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

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Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory relief, or damages can …

Privacy's Double Standards, Scott Skinner-Thompson

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Where the right to privacy exists, it should be available to all people. If not universally available, then privacy rights should be particularly accessible to marginalized individuals who are subject to greater surveillance and are less able to absorb the social costs of privacy violations. But in practice, there is evidence that people of privilege tend to fare better when they bring privacy tort claims than do non-privileged individuals. This disparity occurs despite doctrine suggesting that those who occupy prominent and public social positions are entitled to diminished privacy tort protections.

This Article unearths disparate outcomes in public disclosure tort …

Fathers And Feminism: The Case Against Genetic Entitlement, Jennifer S. Hendricks

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This Article makes the case against a nascent consensus among feminist and other progressive scholars about men's parental rights. Most progressive proposals to reform parentage law focus on making it easier for men to assert parental rights, especially when they are not married to the mother of the child. These proposals may seek, for example, to require the state to make more extensive efforts to locate biological fathers, to require pregnant women to notify men of their impending paternity, or to require new mothers to give biological fathers access to infants.

These proposals disregard the mother's existing parental rights and …

The Government's Lies And The Constitution, Helen Norton

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Governments lie. They do so for many different reasons to a wide range of audiences on a variety of topics. Although courts and commentators have extensively explored whether and when the First Amendment permits the government to regulate lies told by private speakers, relatively little attention has yet been paid to the constitutional implications of the government's intentional falsehoods. This Article helps fill that gap by exploring when, if ever, the Constitution prohibits our government from lying to us.

The government’s lies can be devastating. This is the case, for example, of its lies told to resist legal and political …

Section 5 Constraints On Congress Through The Lens Of Article Iii And The Constitutionality Of The Employment Non-Discrimination Act, Craig Konnoth

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The Employment Non-Discrimination Act (ENDA) that will (hopefully) soon prohibit discrimination against LGB, and ideally, T, individuals, allows state employees to sue states for this discrimination. Scholars and activists fear that these provisions will be struck down as violative of state sovereign immunity, using the Court's recent jurisprudence on Section 5 of the Fourteenth Amendment. This jurisprudence requires Congress to put forth evidence of past state violations of a defined constitutional right before it can subject states to suit. This Congress has done.

However, this Comment suggests that a new requirement of Section 5 legislation is in the works. Key …

Commentary: Was The Bill Of Rights Irrelevant To Nineteenth-Century State Criminal Procedure?, Carolyn B. Ramsey

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No abstract provided.

Two Wrongs Make A Right: Hybrid Claims Of Discrimination, Ming Hsu Chen

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This Note reinterprets and recontextualizes the pronouncement in Employment Division v. Smith (Smith II) that exemptions from generally applicable laws will not be granted unless claims of free exercise are accompanied by the assertion of another constitutional right. It argues that when Arab American Muslims, and others who are of minority race and religion, bring claims for exemption from generally applicable laws on the basis of free exercise and equal protection principles, they ought to be able to invoke Smith II's hybridity exception, thus meriting heightened judicial scrutiny and increased solicitude from courts.

Conflating Scope Of Right With Standard Of Review: The Supreme Court's Strict Scrutiny Of Congressional Efforts To Enforce The Fourteenth Amendment, Melissa Hart

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Judicial Supremacy And The Settlement Function, Robert F. Nagel

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Women And The Promise Of Equal Citizenship, Jennifer S. Hendricks

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Anticipating the decision in United States v. Morrison (2000), holding that the civil rights remedy of the Violence Against Women Act was not a legitimate exercise of Congress's power to enforce the Equal Protection Clause, this article argues that the Act could be upheld as an exercise of Congress's authority under the Citizenship Clause of the Fourteenth Amendment. Congress's authority under the Citizenship Clause is analogous to its authority under the "badges and incidents" doctrine of the Thirteenth Amendment, which allows Congress to provide protection from discriminatory violence. This theory would also guide interpretation of the act to focus on …

Subtracting Sexism From The Classroom: Law And Policy In The Debate Over All-Female Math And Science Classes In Public Schools, Carolyn B. Ramsey

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Progress And Constitutionalism, Robert F. Nagel

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California’S Proposition 187--Does It Mean What It Says? Does It Say What It Means? A Textual And Constitutional Analysis, Lolita K. Buckner Inniss

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Forty Years In The Desert, Paul F. Campos

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The author uses Brown v. Board of Education and the volumes of commentary it has provoked to illustrate that coherent constitutional interpretation is a useless exercise. He argues that the decision should be accepted as political reality and moral necessity and that we should cease debating its merit as constitutional interpretation.

Shaw V. Reno: On The Borderline, Emily Calhoun

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Against Constitutional Theory, Paul Campos

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Forgetting The Constitution, Robert F. Nagel

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Batson V. Kentucky: Curing The Disease But Killing The Patient, William T. Pizzi

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Does Mississippi's System For Financing Public Schools From "School Lands" Violate Federal Law?, Richard B. Collins

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Economic Analysis Of Liberty And Property: A Critique, Peter N. Simon

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Washington's Ballot Restriction For Minor Party Candidates: When Is A Primary Not A Primary?, Emily Calhoun

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Liberty And Property In The Supreme Court: A Defense Of Roth And Perry, Peter N. Simon

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Log-Rolling And Judicial Review, Michael J. Waggoner

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The Supreme Court And The Constitutional Rights Of Prisoners: A Reappraisal, Emily Calhoun

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The Thirteenth And Fourteenth Amendments: Constitutional Authority For Federal Legislation Against Private Sex Discrimination, Emily Calhoun

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Judicial Review In Local Government Law: A Reappraisal, Harold H. Bruff

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No abstract provided.