Law Commons^™

The Antiterrorism Act, The Immigration Reform Act, And Ideological Regulation In The Immigration Laws: Important Lessons For Citizens And Noncitizens., Kevin R. Johnson

St. Mary's Law Journal

This Article analyzes how the Antiterrorism Act and the Immigration Reform Act reflect a larger historical dynamic in the relationship between domestic subordination and immigration law. The U.S. government historically employed immigration laws in an effort to protect the established political and social order. History reveals a strong correlation between the severe treatment politically subversive U.S. citizens received and the constriction of the immigration laws. This Article argues the lack of constitutional protections for noncitizens helps to explain the recurrent backlash against them. The treatment of noncitizens suggests how far the government might go to suppress domestic political dissent by …

Title Iii Of The Violence Against Women Act: The Answer To Domestic Violence Or A Constitutional Time-Bomb Comment., Yvette J. Mabbun

St. Mary's Law Journal

The Violence Against Women Act (VAWA) was enacted in 1994 to combat the growing and widespread epidemic of domestic violence. Congressional committees assigned to study this epidemic found that violent attacks by men topped the list of dangers to an American woman’s health. In an attempt to raise society’s awareness of the problem of violence against women and to ameliorate the victimization of women, Congress enacted VAWA. Specifically, Title III of VAWA establishes a federal civil right for victims of violent, gender-motivated crimes. These provide victims with either injunctive or monetary compensation. Consequently, there have been questions about the constitutionality …

"Prescriptive Equality": Two Steps Forward, Kent Greenawalt

Faculty Scholarship

In this Response to Professor Peters, Professor Greenawalt argues that prescriptive equality does have meaningful normative force. Prescriptive equality plays a reinforcing role when it agrees with nonegalitarian justice and is not incoherent when it pulls against nonegalitarian justice. Specifically, when one individual has been treated better than is required by nonegalitarian justice, a similarly situated and significantly related individual who is aware of that treatment may merit equivalent treatment because of widespread and deep-seated feelings about equality.

Notes From The Eye Of The Storm, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.

Does The Subject Matter? Viewpoint-Neutrality And Freedom Of Speech, Wojciech Sadurski

Cardozo Arts & Entertainment Law Journal

No abstract provided.

"Doubts About Our Processes": Richard D. Simons And The Jurisprudence Of Restraint In State Constitutional Analysis, David E. Mccraw

Touro Law Review

No abstract provided.

Ex Post Facto Laws: Supreme Court New York County People V. Griffin (Decided December 5, 1996

Touro Law Review

No abstract provided.

Right To Trial By Jury, Court Of Appeals People V. Page

Touro Law Review

No abstract provided.

The First Amendment In The Supreme Court: The Future Lies Ahead, Dean Joel M. Gora

Touro Law Review

No abstract provided.

The Pluralist Game: Francis Canavan On Law, Public Morality, And Pluralism In Contemporary America, Gerard V. Bradley

Journal Articles

You may have heard Hadley Arkes's charge — always made in good-natured friendship — that Father Richard John Neuhaus owes him royalties for the title of Neuhaus's wonderful monthly, First Things. After all, Arkes's book of the same name came out first. Father Neuhaus read it and liked it, and, voila, shortly thereafter the magazine appeared. Arkes has a good circumstantial case.

You probably know that one of Father Neuhaus's books is called The Catholic Moment. His thesis is that late twentieth century Americans are living through a "crisis of unbelief." The Roman Catholic Church, Neuhaus argues, can and should …

An Analysis Of The Supreme Court's Reliance On Racial "Stigma" As A Constitutional Concept In Affirmative Action Cases, Andrew F. Halaby, Stephen R. Mcallister

Michigan Journal of Race and Law

The Article's focus is confined to discussions of race-based affirmative action; it does not consider stigmatization arguments in the context of discrimination involving gender or disabilities, for example. Further, the Article's scope is limited to the stigmatization issue as between Whites and African Americans. Although similar issues exist with respect to other ethnic or racial groups, we view the White/African American paradigm as providing the clearest framework for analysis. Moreover, the cases of Plessy v. Ferguson and Brown v. Board of Education, joint progenitors of stigmatization as a concept having constitutional significance in interpreting the Equal Protection Clause of …

Writing In The Margins: Brennan, Marshall, And The Inherent Weaknesses Of Liberal Judicial Decision-Making (Essay), Donna F. Coltharp

Faculty Articles

No abstract provided.

Law And Phrenology, Pierre Schlag

Publications

As the intellectual credentials of American law become increasingly dubious, the question arises: how has this discipline been intellectually organized to sustain belief among its academic practitioners? This Commentary explores the nineteenth-century pseudo-science of phrenology as a way of gaining insight into the intellectual organization of American law. Although there are, obviously, significant differences, the parallels are at once striking and edifying. Both phrenology and law emerged as disciplinary knowledges through attempts to cast them in the form of sciences. In both cases, the "sciences" were aesthetically organized around a fundamental ontology of reifications and animisms -- "faculties" in the …

The Empty Circles Of Liberal Justification, Pierre Schlag

Publications

No abstract provided.

Judicial Review As A Tool For The Safeguard Of Human Rights: Prospects And Problems Of The U.S. Model In Malawi, Janet Laura Banda

LLM Theses and Essays

Judicial review is a judicial action that involves the review of an inferior legislative or executive act for conformity with a higher legal norm, with the possibility that the inferior norm may be invalidated or suspended if necessary. Although judicial review has been explicitly provided for in some written post-independence African constitutions, such review has not developed into a significant principle of African juridical democracy. This lack of development can be attributed to the emergence of dictatorships in the post-colonial era. However, Malawi’s weak judiciary system was remedied by the 1994 Constitution which gave the Malawian judiciary a central position, …

The Issue Of The Legal Validity Of Using Economic Sanctions To Enforce Human Rights, Thomas Hailu

LLM Theses and Essays

The international legal regime as it pertains to human rights is neither as established nor as definitive as it appears. It suffers from many disadvantages, the first and most important of which is the fact that the international legal regime has never been capable of effectively enforcing its rules or instituting appropriate remedies for its breaches. Some states have attempted to make up for this inability on behalf of international law by undertaking an enforcement mechanism either unilaterally or multilaterally; economic sanctions are often regarded as valuable tools of enforcement to be used against countries which are allegedly engaged in …

Taking Care Of Our Daughters, Katharine K. Baker

Cardozo Law Review

In The Neutered Mother, The Sexual Family and Other Twentieth Century Tragedies, Martha Fineman gives a powerful critique of the traditional family and proposes an innovative model for change. In the course of her critique, Fineman reveals a number of important truths. Primary among these truths are (1) that dependency begets dependency; (2) that equality rhetoric and practice are vacuous vehicles for justice in a world in which differing degrees of dependency beget different ability; (3) that the privacy and silence of dependency is crucial to patriarchy's construction of the family. Dependencies are created every time a baby is …

Transitional Jurisprudence: The Role Of Law In Political Transformation., Ruti Teitel

Articles & Chapters

No abstract provided.

Law And Fancy, Robin West

Georgetown Law Faculty Publications and Other Works

Martha Nussbaum's graceful book Poetic Justice is an elegant brief for the importance of our capacity for imaginative "fancy" to our moral and legal lives. Imaginative fancy, Nussbaum argues, allows us to know the internal substance and quality of the lives of others. It allows us to come to appreciate, to understand, to share, and ultimately to resist others' suffering. It is, in short, the means by which we come to care about the fate and happiness of others. It is a part, but not the whole, of our capacity to transcend a narcissistic and infantile egoism. It is therefore …

Integrity And Universality: A Comment On Dworkin's Freedom's Law, Robin West

Georgetown Law Faculty Publications and Other Works

Ronald Dworkin has done more than any other constitutional lawyer, past or present, to impress upon us the importance of  integrity to constitutional law, and hence to our shared public life. Far from being merely a private virtue, Dworkin has shown that integrity imposes constraints upon and provides guidance to the work of judges in constitutional cases: Every constitutional case that comes before a court must be decided by recourse to the same moral principles that have dictated results in relevant similar cases in the past. Any group or individual challenging the constitutionality of legislation which adversely affects his or …

Introduction To Panel Five: The Inter-Subjectivity Of Objective Justice: A Theory And Praxis For Constructing Latcrit Coalitions, Elizabeth M. Iglesias

Articles

No abstract provided.

Making Constitutional Doctrine In A Realist Age, Victoria Nourse

Georgetown Law Faculty Publications and Other Works

In this article the author considers three examples of modern constitutional doctrine that show how judges have stolen bits and pieces from popularized skepticisms about the job of judging and have molded this stolen rhetoric into doctrine. In the first example, she asks whether constitutional law's recent penchant for doctrinal rules based on "clear law" could have existed without the modern age's obsession with legal uncertainty. In the second, the author considers whether our contemporary rhetoric of constitutional "interests" and "expectations" reflects modern critiques of doctrine as failing to address social needs. In the third, she asks how an offhand …

Things Judges Do: State Statutory Interpretation, Judith S. Kaye

Touro Law Review

No abstract provided.

Right To Trial By Jury, Supreme Court, Appellate Division Fourth Department People V. Perkins

Touro Law Review

No abstract provided.

Search And Seizure, Court Of Appeals, People V. Batista

Touro Law Review

No abstract provided.

Search And Seizure, Court Of Appeals, People V. Quackenbush

Touro Law Review

No abstract provided.

A Law Professor’S Guide To Natural Law And Natural Rights, Randy E. Barnett

Georgetown Law Faculty Publications and Other Works

Law professors nowadays mention natural law and natural rights on a regular basis, and not just in jurisprudence. Given that the founding generation universally subscribed to the idea of natural rights, this concept regularly makes a prominent appearance in discussions of constitutional law. One simply cannot avoid the concept if one is to explain Justice Samuel Chase's well-known claim in Calder v. Bull that "[t]here are certain vital principles in our free Republican governments, which will determine and over-rule an apparent and flagrant abuse of legislative power .... An ACf of the Legislature (for I cannot call it a law) …

Counting Votes And Discounting Holdings In The Supreme Court's Takings Cases, Richard J. Lazarus

Georgetown Law Faculty Publications and Other Works

This Essay focuses on a dimension of the regulatory takings issue that has received relatively little attention in what is otherwise a vast amount of literature on the topic: Why the Court is so persistently splintered and its precedent so seemingly schizophrenic. Most academic discussion has focused on the sheer difficulty of reconciling the public's firmly held conception of sacrosanct private property rights with the public's increasing demand for restrictions on the exercise of those same rights when they affect others adversely. This Essay's thesis is that reasons for this phenomenon exist beyond those that have dominated the ongoing academic …

On Doing Justice And Walking Humbly With God: Catholic Social Thought On Law As A Tool For Achieving Justice, Lucia A. Silecchia

Scholarly Articles

The text of the 1996 “Mirror of Justice” lecture at the Catholic University of America, this article explores the potential - and the limitations - of law as a tool for achieving justice. Drawing heavily on principles of Catholic social thought, it also considers the various ways in which “justice” may be defined.

Frozen Rights In Canada: Constitutional Interpretation And The Trickster, John Borrows

American Indian Law Review

No abstract provided.