Law Commons^™

The Supreme Court And The Politics Of Death, Stephen F. Smith

Stephen F. Smith

This article explores the evolving role of the U.S. Supreme Court in the politics of death. By constitutionalizing the death penalty in the 1970s, the Supreme Court unintentionally set into motion political forces that have seriously undermined the Court's vision of a death penalty that is fairly administered and imposed only on the worst offenders. With the death penalty established as a highly salient political issue, politicians - legislators, prosecutors, and governors - have strong institutional incentives to make death sentences easier to achieve and carry out. The result of this vicious cycle is not only more executions, but less …

A Quiet Faith? Taxes, Politics, And The Privatization Of Religion, Richard W. Garnett

Richard W Garnett

The government exempts religious associations front taxation and, in return, restricts their putatively political expression and activities. This exemption-and-restriction scheme invites government to interpret and categorize the means by which religious communities live out their vocations and engage the world. But government is neither well-suited nor to be trusted with this kind of line-drawing. What's more, this invitation is dangerous to authentically religious consciousness and associations. When government communicates and enforces its own view of the nature of religion—i.e., that it is a private matter—and of its proper place—i.e., in the private sphere, not in politics—it tempts both believers and …

The Recusal Alternative To Campaign Finance Legislation, John C. Nagle

John Copeland Nagle

Typical campaign finance proposals focus on limiting the amount of money that can be contributed to candidates and the amount of money that candidates can spend. This article suggests an alternative proposal that places no restrictions on contributions or spending, but rather targets the corrupting influence of contributions. Under the proposals, legislators would be required to recuse themselves from voting on issues directly affecting contributors. I contend that this proposal would prevent corruption and the appearance of corruption while remedying the first amendment objections to the regulation of money in campaigns.

What Is This "Lobbying" That We Are So Worried About?, Lloyd Hitoshi Mayer

Lloyd Hitoshi Mayer

Lobbying is both an essential part of our democratic process and a source of some of our greatest fears about dangers to that process. Yet when Congress, the public, and scholars consider loosening or, as is more often the case, tightening the restrictions on lobbying, they usually assume that everyone knows what activities are in fact lobbying. They therefore overlook the fact that multiple definitions of lobbying currently exist in the various federal laws addressing lobbying. This Article seeks to fill this gap by answering the question of how lobbying should be defined for purposes of the existing federal laws …

Book Review Of Arnold H. Leibowitz, An Historical-Legal Analysis Of The Impeachments Of Presidents Andrew Johnson, Richard Nixon, And William Clinton: Why The Process Went Wrong, Jeffrey B. Morris

Jeffrey B. Morris

No abstract provided.

Reconciling Positivism And Realism: Kelsen And Habermas On Democracy And Human Rights, David Ingram

David Ingram

It is well known that Hans Kelsen and Jürgen Habermas invoke realist arguments drawn from social science in defending an international, democratic human rights regime against Carl Schmitt’s attack on the rule of law. However, despite embracing the realist spirit of Kelsen’s legal positivism, Habermas criticizes Kelsen for neglecting to connect the rule of law with a concept of procedural justice (Part I). I argue, to the contrary (Part II), that Kelsen does connect these terms, albeit in a manner that may be best described as functional, rather than conceptual. Indeed, whereas Habermas tends to emphasize a conceptual connection between …

Does Political Islam Conflict With Secular Democracy? Philosophical Reflections On Religion And Politics, David Ingram

David Ingram

Abstract: This paper rebuts the thesis that political Islam conflicts with secular democracy. More precisely, it examines three sorts of claims that ostensibly support this thesis: (a) The Muslim religion is incompatible with secular democracy; (b) No Muslim country has instituted secular democracy; and (c) No movement seeking to advance its agenda as aggressively as political Islam does can do so with the degree of moderation required of a political party that is committed to secular democracy. Theologians, philosophers, and political scientists have debated (a) through (c) within the jurisdiction of their respective fields. I propose to combine these debates …

Moments Of Silence In Administrative Law: Notes On Judicial Method In The Deregulation Cases, Brian C. Murchison

Brian C. Murchison

None available

Lessons Learned From Pakistan: A Dissertation On The Bush-Obama Drone Doctrine, Michael A. Pipa

Michael A Pipa

The first use of the modern day attack drone by the United States was in Afghanistan in mid 2002, and for the past 11 years attack drones have been used by the United States in as many countries as Pakistan, Yemen and Somalia. When considering the alternatives to using drones, such as sending marines on the ground to complete a mission or flying a piloted jet over enemy territory to gather intelligence, as well as the military power that the use of these vehicles projects, the attack drone has become the weapon of choice in the war on terror for …

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Mary Margaret Meg Penrose

Meg Penrose

Something To Lex Loci Celebrationis: Federal Marriage Benefits Following United States V. Windsor, Meg Penrose

Meg Penrose

This article provides one of the first substantive treatments of United States v. Windsor, the Supreme Court's recent same-sex marriage case. The article's thesis proposes lex loci celebrationis (the place of marriage) as the proper method for determining marriage for federal law purposes. Failure to adopt lex loci celebrationis may violate the Fifth Amendment equal protection guarantee or the constitutional right to travel. Further, adoption of the lex loci celebrationis standard furthers marital stability and predictability.

Hougang By-Election Case: What Court Decision On By-Election Reveals, Jack Tsen-Ta Lee

Jack Tsen-Ta LEE

The Singapore Court of Appeal’s judgment in Vellama d/o Marie Muthu v Attorney-General [2013] SGCA 39 – popularly known as the Hougang by-election case – shows that the Court sees its role as policing the margins rather than involving itself in the heart of politics. The Court held that the Government was incorrect in asserting the Constitution confers on it the discretion not to hold a by-election at all after a parliamentary seat falls vacant. The judgment came as a surprise to those used to a judicial stance fairly deferential towards the Government, but on balance the Court did accord …

Classic Lessons From A Little Fish In A Pork Barrel - Featuring The Notorious Story Of The Endangered Snail Darter And The Tva's Last Dam, Zygmunt J.B. Plater

Zygmunt J.B. Plater

Canaries are small, fragile, sensitive creatures weighing no more than 20 grams, about seven-tenths of an ounce. They have become a familiar and significant metaphor, however, due to the important role they played as vivid warning indicators of substantial threats to human welfare. Because canaries are extremely sensitive to the presence of methane and carbon monoxide—deadly but odorless gases that seep from deep coal deposits—miners in England and the U.S. carried canaries in little cages along with them as they worked in underground coal seams. When the canaries began to sway and slump noticeably on their perches, the miners could …

Milk And Other Intoxicating Choices: Official State Symbol Adoption, Ryan Valentin

Ryan Valentin

No abstract provided.

The Not-So-Simple Saga Of Edward And Barack..., Michael I. Niman Ph.D.

Michael I Niman Ph.D.

It reads like a political thriller. An NSA spook, Edward Snowden, meets his conscience, blows the whistle on a massive secret attack on the Fourth Amendment, and is pursued globally by an obsessed president. Spice things up with a bit of character development cross-pollinated with a history lesson. First there’s Darth President. His administration has earned the distinction of invoking the Espionage Act of 1917 (a constitutionally questionable World War One relic) more than all other presidents in the previous 96 years combined—by a factor of two. The Obama administration has charged eight people under the act. All previous administrations …

Time For A Top-Tier Law School In Arkansas, Richard J. Peltz-Steele

Richard J. Peltz-Steele

A simple change in state law could improve the quality of legal education in Arkansas and the quality of legal services available to our consumers - and save significant amounts of taxpayers' money. With an Afterword on academic freedom. Also available from Advance Arkansas Institute website.

Considering The Libel Trial Of Émile Zola In Light Of Contemporary Defamation Doctrine, Peter A. Zablotsky

Peter Zablotsky

Touro Law School's three-day conference on the Dreyfus affair provided an opportunity to re-examine the libel trial Émile Zola. A modern view on tort law is provided to analyze this case as if it unfolded today.

Due Process In American Military Tribunals After September 11, 2001, Gary Shaw

Gary M. Shaw

The Authorization for Use of Military Force ("AUMF") provides broad powers for a president after September 11, 2001. President Bush, under the AUMF, claimed he had the power to hold "enemy combatants" without due process. This gave rise to two questions that the article addresses: "Could they be held indefinitely without charges or proceedings being initiated? If proceedings had to be initiated, what process was due to the defendants?"

La Racionalización Del Estado, Germán M. Teruel Lozano

Germán M. Teruel Lozano

No abstract provided.

To Compete Globally, Brics Nations Need Reputation, Not Imitation, Ahmed E. Souaiaia

Ahmed E SOUAIAIA

The economic, political, and social rise of the Western block of nations was founded on the single most enduring currency: reputation. Reputation, the source of credibility and trust, is the real asset that allows the U.S. to project its stature around the world. BRICS nations cannot rise to prominence by mimicking developed countries. They must build their reputation first. Wealth is only a byproduct of this more precious commodity, and countries who have it can squander it just as emerging economies can acquire it. For either of those results to happen in any country, circumstantial conditions and principled actions must …

Has Skinner Killed The Katz? Are Society's Expectations Of Privacy Reasonable In Today's Techological World?, Jason Forcier

Jason Forcier

The right to privacy has and will remain a hotly contested debate about American liberties. In 2012, a 3-0 decision by the Sixth Circuit Court of Appeals, in United States v. Melvin Skinner, the court held that there is no “reasonable expectation of privacy in the data given off by. . . cellphone[s].” Given today’s explosion of cellular technology and use of smart phones, is it unreasonable to believe a person should remain secure in their "person" and “effects," as guaranteed under the Fourth Amendment, from unreasonable searches and seizures? Furthermore, with police requiring only a subpoena to a obtain …

¿Es Válida La Ampliación De Demanda Signada Por Licenciado En Derecho Autorizado?, Guillermo Castorena

Guillermo Castorena

En la actualidad las Salas del Tribunal Federal de Justicia Fiscal y Administrativa, han venido interpretando en diversos sentidos el artículo 5 de la Ley Federal de Procedimiento Contencioso Administrativo para considerar si se debe de tener por presentada o no la ampliación de demanda signada por un licenciado en derecho autorizado por la actora o su representante legal.

Article: No Child Left Behind: Why Race-Based Achievement Goals Violate The Equal Protection Clause, Ayriel Bland

Ayriel Bland

In 2002, No Child Left Behind (NCLB) was passed under President George W. Bush with the goal of increasing academic proficiency for all children in the United States by 2014. Yet, many states struggled to meet this goal and the Secretary of the U.S. Department of Education allowed states to apply for waivers and bypass the 2014 deadline. Some states implemented waivers though race-based achievement standards. For example, Florida in October 2012, established that by 2018, 74 percent of African American and 81 percent of Hispanic students had to be proficient in math and reading, in comparison to 88 percent …

Ministerial Responsibility And Chief Executive Accountability: The Implications Of The Better Public Services Reform Programme, Matthew S. R. Palmer Qc

The Hon Justice Matthew Palmer

On The Need To Balance Endowments And Academic Integrity, Ahmed Souaiaia

Ahmed E SOUAIAIA

As universities face revenues shortfalls due to national and global economic trends, administrators are forced to look for alternative funding streams. Some of the attractive options consist of creating satellite campuses in rich countries and accepting donors from individuals, corporations, and governments. What is the price of such new partnerships and what is the function of endowments for donors and the universities?

China-Taiwan Trade Relations: Implications Of The Wto And Asian Regionalism, Pasha L. Hsieh

Pasha L. Hsieh

Cross-strait relations underwent a fundamental change when both China and Taiwan joined the World Trade Organization (WTO) in 2001. The WTO is the first world-wide multilateral organization in which China and Taiwan share equal statuses. Thus, the WTO provides a neutral forum for China and Taiwan to resolve trade conflicts. More importantly, the WTO requires the two states to behave toward one another in a manner consistent with WTO norms. Consequently, the trade policies of China and Taiwan would change in response to their WTO obligations. In addition to the WTO, Asian regionalism, which refers to the recent accelerated integration …

Westminster's Impending Short Title Quandary: And How To Fix It, Brian Christopher Jones

Brian Christopher Jones

Discusses the likelihood that, in the absence of official guidelines on the choice of short title for new Bills submitted to the Westminster Parliament, increasingly the US practice of giving Bills "sloganising" or personalised short titles will be emulated. Reports on the views of parliamentarians about the use of evocative language in Bill titles. Outlines the formal and informal rules and practices followed by Office of the Parliamentary Counsel in the naming of Bills, and suggests five guidance points for the selection of a short title.

Deadly Dicta: Roe’S “Unwanted Motherhood”, Gonzales’S “Women’S Regret” And The Shifting Narrative Of Abortion Jurisprudence, Stacy A. Scaldo

Stacy A Scaldo

For thirty-four years, the narrative of Supreme Court jurisprudence on the issue of abortion was firmly focused on the pregnant woman. From the initial finding that the right to an abortion stemmed from a constitutional right to privacy[1], through the test applied and refined to determine when that right was abridged[2], to the striking of statutes found to over-regulate that right[3], the conversation from the Court’s perspective maintained a singular focus. Pro-life arguments focusing on the fetus as the equal or greater party of interest were systematically pushed aside by the Court.[4] The consequences of an unwanted pregnancy, or as …

Rules, Rights And Religion: The Abyssinian Baptist Church And The Quest For Community, 1808-1810, Quinton H. Dixie

Quinton H Dixie

Religion, as with law, is partially about bringing together opposing narrative interpretations in order to better understand what believers feel is real. This morning I will show how narratives and their various interpretations display how communities bound by laws and morality express their understanding of who they are called to be.

The United States Constitution And Its History Through The Barristers And Political, Allen E. Shoenberger

Allen E Shoenberger

No abstract provided.