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Articles 1 - 30 of 139
Full-Text Articles in Law
The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah Brake
The New Gender Panic In Sport: Why State Laws Banning Transgender Athletes Are Unconstitutional, Deborah Brake
Articles
The scope and pace of legislative activity targeting transgender individuals is nothing short of a gender panic. From restrictions on medical care to the regulation of library books and the use of pronouns in schools, attacks on the transgender community have reached crisis proportions. A growing number of families with transgender children are being forced to leave their states of residence to keep their children healthy and their families safe and intact. The breadth and pace of these developments is striking. Although the anti-transgender backlash now extends broadly into health and family governance, sport was one of the first settings—the …
Brief Of Amici Curiae In Support Of The United States: Moyle & Idaho V. United States, David S. Cohen, Greer Donley, Rachel Rebouché
Brief Of Amici Curiae In Support Of The United States: Moyle & Idaho V. United States, David S. Cohen, Greer Donley, Rachel Rebouché
Amici Briefs
This amicus brief, submitted to the Supreme Court in Moyle v. United States, argues that Moyle, and the impending circuit split surrounding it, is a symptom of a larger workability problem with the Dobbs v. Jackson Women’s Health Organization framework. Dobbs is already proving, in its brief existence, to be unworkable, and must be overturned. In short order, the Dobbs ruling has ushered in an era of unprecedented legal and doctrinal chaos, precipitating a fury of disorienting legal battles across the country. The Dobbs framework has created destabilizing conflicts between federal and state authorities, as in the current …
For Richer Or Poorer: The Warren Court's Relationship To Socioeconomic Class, Nicole Jonassen
For Richer Or Poorer: The Warren Court's Relationship To Socioeconomic Class, Nicole Jonassen
CMC Senior Theses
The U.S. Constitution does not enshrine socioeconomic rights. Why does this matter? Many argue that socioeconomic rights have value in and of themselves because they secure certain minimum conditions of human dignity, but socioeconomic rights also have instrumental value because abject material deprivation often makes traditional political and civil rights meaningless. In this thesis, I explore the relationship between U.S. constitutional law and socioeconomic rights through an analysis of the Warren Court’s decisions regarding socioeconomic class. In Chapter 1, I present existing literature on socioeconomic rights, socioeconomic rights in the American context, and what many scholars see as the Warren …
Deities’ Rights?, Deepa Das Acevedo
Deities’ Rights?, Deepa Das Acevedo
Faculty Articles
A brief commotion arose during the hearings for one of twenty-first-century India’s most widely discussed legal disputes, when a dynamic young attorney suggested that deities, too, had constitutional rights. The suggestion was not absurd. Like a human being or a corporation, Hindu temple deities can participate in litigation, incur financial obligations, and own property. There was nothing to suggest, said the attorney, that the same deity who enjoyed many of the rights and obligations accorded to human persons could not also lay claim to some of their constitutional freedoms. The lone justice to consider this claim blandly and briefly observed …
Is Wide-Area Persistent Surveillance By State And Local Governments Constitutional?, Joseph Lake
Is Wide-Area Persistent Surveillance By State And Local Governments Constitutional?, Joseph Lake
CGU Theses & Dissertations
This dissertation addresses the following question: “Can wide-area persistent surveillance (WAPS) developed by the United States military and employed abroad as a tool in the Global War on Terror be employed domestically as a law enforcement tool without violating the US Constitution’s Fourth Amendment?” The most likely and controversial application of WAPS by state and local governments is for law enforcement. Aircraft will loiter over a city persistently taking high-definition photographs to capture locations of unidentified persons with the intent to identify persons and areas of interest for criminal investigations. Based on the Flyover Cases, aerial surveillance has few constitutional …
Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren
Answering The Call: A History Of The Emergency Power Doctrine In Texas And The United States, P. Elise Mclaren
St. Mary's Law Journal
During times of emergency, national and local government may be allowed to take otherwise impermissible action in the interest of health, safety, or national security. The prerequisites and limits to this power, however, are altogether unknown. Like the crises they aim to deflect, courts’ modern emergency power doctrines range from outright denial of any power of constitutional circumvention to their flagrant use. Concededly, courts’ approval of emergency powers has provided national and local government opportunities to quickly respond to emergency without pause for constituency approval, but how can one be sure the availability of autocratic power will not be abused? …
Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman
Keeping Our Distinctions Straight: A Response To “Originalism: Standard And Procedure”, Mitchell N. Berman
All Faculty Scholarship
For half a century, moral philosophers have distinguished between a “standard” that makes acts right and a “decision procedure” by which agents can determine whether any given contemplated act is right, which is to say whether it satisfies the standard. In “Originalism: Standard and Procedure,” Stephen Sachs argues that the same distinction applies to the constitutional domain and that clear grasp of the difference strengthens the case for originalism because theorists who emphasize the infirmities of originalism as a decision procedure frequently but mistakenly infer that those flaws also cast doubt on originalism as a standard. This invited response agrees …
What Comes After January 6? On The Contingent Congressional Procedure, William B. Ewald
What Comes After January 6? On The Contingent Congressional Procedure, William B. Ewald
All Faculty Scholarship
Most criticism of the system of presidential election focuses on the Electoral College, and most criticism of the Electoral College focuses narrowly on the shortcomings of the Electoral College itself. The objections are well known. The most basic is an objection of political principle. The Electoral College, on its face, deviates from the democratic principle of one-person-one-vote and gives the vote of a citizen in Wyoming approximately the same weight as 3.5 votes in California. The result is an unequal distribution of political power, both between citizens and among states. We can call this the 3.5:1 problem.
There are …
The Runaway Presidential Power Over Diplomacy, Jean Galbraith
The Runaway Presidential Power Over Diplomacy, Jean Galbraith
All Faculty Scholarship
The President claims exclusive control over diplomacy within our constitutional system. Relying on this claim, executive branch lawyers repeatedly reject congressional mandates regarding international engagement. In their view, Congress cannot specify what the policy of the United States is with respect to foreign corruption, cannot bar a technology-focused agency from communicating with China, cannot impose notice requirements for withdrawal from a treaty with Russia, cannot instruct Treasury officials how to vote in the World Bank, and cannot require the disclosure of a trade-related report. And these are just a few of many examples from recent years. The President’s assertedly exclusive …
Does Justice Have A Syntax?, Steven L. Winter
Does Justice Have A Syntax?, Steven L. Winter
Law Faculty Research Publications
No abstract provided.
Presidents And The U.S. Constitution: The Executive’S Role In Interpreting The Supreme Law Of The Land, Mitchell Scacchi
Presidents And The U.S. Constitution: The Executive’S Role In Interpreting The Supreme Law Of The Land, Mitchell Scacchi
Honors Theses and Capstones
In 1832, President Andrew Jackson issued a veto message claiming the same duty as the Supreme Court to interpret the U.S. Constitution. Do modern presidents exercise the principal role in interpreting the U.S. Constitution that President Jackson claimed was their duty, and, if so, in what ways do they choose to articulate their interpretations? The hypothesis is that modern presidents have exercised a principal role in interpreting the U.S. Constitution similar to the interpretative duty expressed by President Jackson, and they perform this duty, in part, through the issuance of veto messages and signing statements. After a content analysis of …
Constitutional Foundations For Public Health Practice: Key Terms And Principles, Fazal Khan, Marice Ashe
Constitutional Foundations For Public Health Practice: Key Terms And Principles, Fazal Khan, Marice Ashe
Scholarly Works
This chapter introduces the structure of the government in the United States and the concept of “separation of powers" among the federal, state, and local governments. It introduces core legal principles from the U.S. Constitution that frame the authority of the government to enact and enforce laws to protect and promote the public's health. These Constitutional principles are essential for the health advocate and leader to understand because every federal, state, and local law must comply with them. The core principles include the enumerated powers of the federal government and the broad plenary powers of state and local governments—which we …
The First Amendment, Common Carriers, And Public Accommodations: Net Neutrality, Digital Platforms, And Privacy, Christopher S. Yoo
The First Amendment, Common Carriers, And Public Accommodations: Net Neutrality, Digital Platforms, And Privacy, Christopher S. Yoo
All Faculty Scholarship
Recent prominent judicial opinions have assumed that common carriers have few to no First Amendment rights and that calling an actor a common carrier or public accommodation could justify limiting its right to exclude and mandating that it provide nondiscriminatory access. A review of the history reveals that the underlying law is richer than these simple statements would suggest. The principles for determining what constitutes a common carrier or a public accommodation and the level of First Amendment protection both turn on whether the actor holds itself out as serving all members of the public or whether it asserts editorial …
Form And Substance In Singapore Constitutional And Administrative Law, Kenny Chng
Form And Substance In Singapore Constitutional And Administrative Law, Kenny Chng
Research Collection Yong Pung How School Of Law
This paper proposes to study constitutional and administrative law in Singapore through the lenses of Atiyah’s and Summers’ concepts of form and substance in order to discern fruitful avenues for the development of Singapore constitutional and administrative law. While the concepts of form and substance in the context of constitutional law are often associated with constitutional interpretation, they can also be fruitfully applied to other areas of constitutional and administrative law to shed light on the potential trajectories of Singapore law. The intent of this paper is to apply Atiyah’s and Summers’ concepts of form and substance to Singapore constitutional …
Mccleary V. State And The Washington State Supreme Court's Retention Of Jurisdiction—A Success Story For Washington Public Schools?, Jessica R. Burns
Mccleary V. State And The Washington State Supreme Court's Retention Of Jurisdiction—A Success Story For Washington Public Schools?, Jessica R. Burns
Seattle University Law Review SUpra
No abstract provided.
Legal Constraint In Emergencies: Reflections On Carl Schmitt, The Covid-19 Pandemic And Singapore | Symposium On Covid-19 & Public Law, Wei Yao, Kenny Chng
Legal Constraint In Emergencies: Reflections On Carl Schmitt, The Covid-19 Pandemic And Singapore | Symposium On Covid-19 & Public Law, Wei Yao, Kenny Chng
Research Collection Yong Pung How School Of Law
The controversial legal theorist Carl Schmitt’s challenge to the possibility of meaningful legal constraint on executive power in emergencies could not be more relevant in a world struggling to deal with Covid-19. Scrambling against time, governments around the world have declared states of emergency and exercised a swathe of broad executive powers in an effort to manage this highly infectious disease. In times like these, if Schmitt is indeed right that emergencies cannot be governed by law, we are on the cusp of (or perhaps have already entered) a post-law world – where the business of government is characterised by …
Dangerous Exhibitions: Erotic Justice And Comparative Constitutional Law, Elena Cohen
Dangerous Exhibitions: Erotic Justice And Comparative Constitutional Law, Elena Cohen
Dissertations, Theses, and Capstone Projects
The beginning of the 21st century is widely seen as a time of great progress for LGBTQ people. Gay marriage, gay sex, adoption by same sex couples, and gay people serving in militaries have all been legalized in many countries in the past two decades, often through the decisions of constitutional courts. However, these constitutional protections of sexuality have been found in limited contexts and applied to a limited class of people, such that many are still vulnerable to repression by governments and majoritarian politics. In order to resist this sexual oppression, I widen the focus from gay and …
Steiner V. Utah: Designing A Constitutional Remedy, Michael S. Knoll, Ruth Mason
Steiner V. Utah: Designing A Constitutional Remedy, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
In an earlier article, we argued that the Utah Supreme Court failed to follow and correctly apply clear U.S. Supreme Court precedent in Steiner v. Utah when the Utah high court held that an internally inconsistent and discriminatory state tax regime did not violate the dormant commerce clause. Unfortunately, the Supreme Court recently declined certiorari in Steiner, but the issue is unlikely to go away. Not every state high court will defy the U.S. Supreme Court by refusing to apply the dormant commerce clause, and so the Court will sooner or later likely find itself facing conflicting interpretations of …
Introduction To The Conference: Commemorating The Life And Legacy Of Charles A. Reich, Rodger D. Citron
Introduction To The Conference: Commemorating The Life And Legacy Of Charles A. Reich, Rodger D. Citron
Touro Law Review
No abstract provided.
Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell
Race And Reasonableness In Police Killings, Jeffrey A. Fagan, Alexis D. Campbell
Faculty Scholarship
Police officers in the United States have killed over 1000 civilians each year since 2013. The constitutional landscape that regulates these encounters defaults to the judgments of the reasonable police officer at the time of a civilian encounter based on the officer’s assessment of whether threats to their safety or the safety of others requires deadly force. As many of these killings have begun to occur under similar circumstances, scholars have renewed a contentious debate on whether police disproportionately use deadly force against African Americans and other nonwhite civilians and whether such killings reflect racial bias. We analyze data on …
The Poverty Law Education Of Charles Reich, Felicia Kornbluh, Karen Tani
The Poverty Law Education Of Charles Reich, Felicia Kornbluh, Karen Tani
All Faculty Scholarship
This essay, written for a symposium on the life and legacy of Charles Reich, explores how Reich came to be interested in the field of poverty law and, specifically, the constitutional rights of welfare recipients. The essay emphasizes the influence of two older women in Reich’s life: Justine Wise Polier, the famous New York City family court judge and the mother of one of Reich’s childhood friends, and Elizabeth Wickenden, a contemporary of Polier’s who was a prominent voice in social welfare policymaking and a confidante of high-level federal social welfare administrators. Together, Polier and Wickenden helped educate Reich about …
Strengthening The U.S.-Japan Alliance: Pathways For Bridging Law And Policy, Columbia Law School, 2020, Nobuhisa Ishizuka, Masahiro Kurosaki, Matthew C. Waxman
Strengthening The U.S.-Japan Alliance: Pathways For Bridging Law And Policy, Columbia Law School, 2020, Nobuhisa Ishizuka, Masahiro Kurosaki, Matthew C. Waxman
Faculty Scholarship
During the three years leading up to this year ’s 60th anniversary of the signing of the 1960 U.S.-Japan Security Treaty, a series of workshops were held under the joint sponsorship of Columbia Law School’s Center for Japanese Legal Studies and the National Defense Academy of Japan’s Center for Global Security. Bringing together experts in international law and political science primarily from the United States and Japan, the workshops examined how differing approaches to use of force and understandings of individual and collective self-defense in the two countries might adversely affect their alliance.
The workshop participants explored the underlying causes …
Dimensions Of Delegation, Cary Coglianese
Dimensions Of Delegation, Cary Coglianese
All Faculty Scholarship
How can the nondelegation doctrine still exist when the Supreme Court over decades has approved so many pieces of legislation that contain unintelligible principles? The answer to this puzzle emerges from recognition that the intelligibility of any principle dictating the basis for lawmaking is but one characteristic defining that authority. The Court has acknowledged five other characteristics that, taken together with the principle articulating the basis for executive decision-making, constitute the full dimensionality of any grant of lawmaking authority and hold the key to a more coherent rendering of the Court’s application of the nondelegation doctrine. When understood in dimensional …
Foreword: Abolition Constitutionalism, Dorothy E. Roberts
Foreword: Abolition Constitutionalism, Dorothy E. Roberts
All Faculty Scholarship
In this Foreword, I make the case for an abolition constitutionalism that attends to the theorizing of prison abolitionists. In Part I, I provide a summary of prison abolition theory and highlight its foundational tenets that engage with the institution of slavery and its eradication. I discuss how abolition theorists view the current prison industrial complex as originating in, though distinct from, racialized chattel slavery and the racial capitalist regime that relied on and sustained it, and their movement as completing the “unfinished liberation” sought by slavery abolitionists in the past. Part II considers whether the U.S. Constitution is an …
Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank
Reconsidering Judicial Independence: Forty-Five Years In The Trenches And In The Tower, Stephen B. Burbank
All Faculty Scholarship
Trusting in the integrity of our institutions when they are not under stress, we focus attention on them both when they are under stress or when we need them to protect us against other institutions. In the case of the federal judiciary, the two conditions often coincide. In this essay, I use personal experience to provide practical context for some of the important lessons about judicial independence to be learned from the periods of stress for the federal judiciary I have observed as a lawyer and concerned citizen, and to provide theoretical context for lessons I have deemed significant as …
Preserving Life By Ranking Rights, John William Draper
Preserving Life By Ranking Rights, John William Draper
Librarian Scholarship at Penn Law
Border walls, abortion, and the death penalty are the current battlegrounds of the right to life. We will visit each topic and more in this paper, as we consider ranking groups of constitutional rights.
The enumerated rights of the Due Process Clauses of the Fifth and Fourteenth Amendments—life, liberty, and property—merit special treatment. They have a deeper and richer history that involves ranking. Ranking life in lexical priority over liberty and property rights protects life first and maximizes safe liberty and property rights in the absence of a significant risk to life. This is not new law; aspects of it …
Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel
Autonomy Isn't Everything: Some Cautionary Notes On Mccoy V. Louisiana, W. Bradley Wendel
St. Mary's Journal on Legal Malpractice & Ethics
The Supreme Court’s May 2018 decision in McCoy v. Louisiana has been hailed as a decisive statement of the priority of the value of a criminal defendant’s autonomy over the fairness and reliability interests that also inform both the Sixth Amendment and the ethical obligations of defense counsel. It also appears to be a victory for the vision of client-centered representation and the humanistic value of the inherent dignity of the accused. However, the decision is susceptible to being read too broadly in ways that harm certain categories of defendants. This paper offers a couple of cautionary notes, in response …
Book (Oup) Introduction And Overview: A Cosmopolitan Legal Order: Kant, Constitutional Justice, And The European Convention On Human Rights, Alec Stone Sweet
Book (Oup) Introduction And Overview: A Cosmopolitan Legal Order: Kant, Constitutional Justice, And The European Convention On Human Rights, Alec Stone Sweet
Alec Stone Sweet
No abstract provided.
Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason
Dual Residents: A Sur-Reply To Zelinsky, Michael S. Knoll, Ruth Mason
All Faculty Scholarship
In this article, we respond to Professor Zelinsky’s criticism of our arguments regarding the constitutionality of New York’s tax residence rule. We argue that the Supreme Court’s decision in Wynne requires reconsideration of the New York Court of Appeal’s decision in Tamagni.
Rethinking The Dormant Commerce Clause?: Climate Change And Food Security, Michael Barsa
Rethinking The Dormant Commerce Clause?: Climate Change And Food Security, Michael Barsa
Northwestern Journal of Law & Social Policy
No abstract provided.