Law Commons^™

Market Triumphalism, Electoral Pathologies, And The Abiding Wisdom Of First Amendment Access Rights, Gregory P. Magarian

Working Paper Series

Forty years ago, Professor Jerome Barron made the classic case that the First Amendment requires not merely protection of speech against government interference but provision of access to the means of mass communication. The Supreme Court in the ensuing decades has largely rejected Barron’s approach. In this article, Professor Magarian defends Barron’s case for access rights against the two theoretical critiques that have underwritten its doctrinal rejection. The libertarian critique attacks the normative underpinnings of access rights, maintaining that the First Amendment insulates market-driven distributions of expressive opportunities. Professor Magarian demonstrates that politically progressive and conservative libertarian critics of access …

Fallibility + Unchecked Power = Trouble, C. Peter Erlinder

C. Peter Erlinder

No abstract provided.

Love V. Virginia: The Constitutionality Of The Marshall/Newman Amendment, Pavitra Mohan Ram

ExpressO

My comment explores the constitutionality of a recent amendment in Virginia, the Marshall/Newman Amendment, which bans gay marriage and civil unions between unmarried people, and precludes Virginia from recognizing such arrangements formed in other states. The analysis is particularly timely, because even though the Democrats have regained a majority in Congress, and a traditionally Republican Virginian constituency just elected a Democratic senator, a majority of Virginians adopted this Amendment, indicating conservative values still reign.

The comment argues that the Amendment is demonstrably inconsistent with the mandates of the Fourteenth Amendment of the Federal Constitution. The first provision seeks to ban …

The American Tradition Of Racial Profiling, Jean Phan

ExpressO

The enemy has always been easily recognizable in American life: He has been the savage Native American known for scalping people; the black slave bent on ravaging white women; the Asian worker unfairly competing against the white man; the Mexican immigrant who does nothing but leech off the system; the Arab who dreams up terrorist plots, and carries them out. These enemies have always been visible in American society, and yet, they don’t exist in reality. They exist only in the minds of those too afraid to consider that these strange individuals who seem so different, could be just like …

The Legality Of The Use Of White Phosphorus By The United States Military During The 2004 Fallujah Assaults, Roman O. Reyhani

ExpressO

The assaults on Fallujah by the United States military in April and November 2004 involved the use of white phosphorus. White phosphorus has extremely damaging effects on the health of victims, including severe burns and irritation of the respiratory system. This article examines whether the use of white phosphorus was a violation of the Chemical Weapons Convention, Protocol III to the Convention on Conventional Weapons and international humanitarian law. It concludes that the use of white phosphorus was illegal as it could be argued to be a chemical weapon, a riot control agent, or incendiary weapon. Furthermore, the methods and …

Female Immigrant Workers And The Law: Limits And Opportunities, Maria Ontiveros

Maria L. Ontiveros

This paper explains the reasons that traditional United States labor and employment laws are incapable of effectively addressing the types of workplace problems confronting female immigrant workers. It critiques the protections supposedly offered by the free market, labor standards, antidiscrimination laws and collective bargaining. It argues that statutory exclusion, immigration issues, nonrecognition of injury, and cultural limitations thwart the effectiveness of traditional approaches. It then describes a variety of initiatives and approaches being taken at the domestic and international level that more effectively address these problems. These initiatives include the use of the Thirteenth Amendment and antitrafficking legislation, as well …

Chasing 'Enemy Combatants' And Circumventing International Law: A License For Sanctioned Abuse, Peter J. Honigsberg

Peter J Honigsberg

In 1944, in Korematsu v. United States, the Supreme Court made a major error in judgment. It ruled that the executive may forcibly remove over 110,000 Japanese Americans from their homes and relocate them in American detention camps. In two recent Supreme Court cases, Hamdi v. Rumsfeld and Hamdan v. Rumsfeld, the court made similar errors in judgment by accepting the administration's term "enemy combatant." The Supreme Court's errors were compounded when Congress passed the Military Commissions Act of 2006 in October, 2006, statutorily defining the term enemy combatant for the first time. By acknowledging the term enemy combatant, the …