Law Commons^™

A Statute Is Worth A Thousand Words: Same Sex Marriage And Rfra, Daniel Korda

Daniel Korda

This article explores the effectiveness of the Religious Freedom Restoration Act as a defense for individuals with religious objections towards servicing same sex marriages. Specifically, this article (a) evaluates if the Federal Government has a compelling interest to promote equal accommodations for same sex marriages and (b) considers if "private" individuals suing private parties for refusing to service their marriage are in fact "public" plaintiffs, as the enforcement of laws banning marital discrimination have traditionally been enforced by the State.

The Puppy Prohibition Period: The Constitutionality Of Chicago's War On Animal Mills, Christopher W. Moores

Christopher W Moores

No abstract provided.

The Transformation Of South African Private Law After Twenty Years Of Democracy, 14 Nw. J. Int’L Hum. Rts. (Forthcoming 2016)., Christopher J. Roederer

Christopher J. Roederer

In The Transformation of South African Private Law after Ten Years of Democracy, 37 Colum. Hum. Rts. L. Rev. 447 (2006), I evaluated the role of private law in consolidating South Africa’s constitutional democracy. There, I traced the negative effects of apartheid from public law to private law, and then to the law of delict, South Africa’s counterpart to tort law. I demonstrated that the law of delict failed to develop under apartheid and that the values animating the law of delict under apartheid were inconsistent with the values and aspirations of South Africa’s democratic transformation. By the end of …

Religious Exemptions, Marriage Equality, And The Establishment Of Religion, Nancy J. Knauer

Nancy J. Knauer

The advent of nationwide marriage equality has sparked a robust debate over the extent of religious liberties and the limits of civil rights protections. As public opinion regarding LGBT individuals and the families they form has evolved, religious beliefs that once served as the basis for law and policy have been increasing marginalized. Various efforts have been made to protect religious objectors who continue to believe that marriage is only between one man and one woman. For example, all of the states that had enacted marriage equality legislation included exceptions for clergy and religious organizations to ensure that they would …

A Quantum Congress, Jorge R. Roig

Jorge R Roig

The First Thing We Do, Jorge R. Roig

Jorge R Roig

¿Con La Misma Vara? Los Altibajos De La Igual Protección De Las Leyes En Las Opiniones Del Juez Federico Hernández Denton, Jorge R. Roig

Jorge R Roig

A Remedy To Fit The Crime: A Call For The Unreasonable Rejection Of A Parent By A Child As Tort, Bruce L. Beverly

Bruce L. Beverly

The U.S. Supreme Court has stated time and again that the privilege to raise a child as a parent sees fit is a substantive fundamental right under the Constitution. However, when faced with the situation where one parent poisons the child against the other parent, and that child then unreasonably rejects a formerly loved parent, Courts have been reluctant to enforce this fundamental right by allowing tortious recovery against the offending parent. This paper briefly examines the legal and mental health controversies surrounding parental alienation and suggests that more Courts should recognize an independent tort cause of action against an …

The Constitution, The Roberts Court & Business: The Significant Business Impact Of The Supreme Court's 2011-2012 Term, Corey A. Ciocchetti

Corey A Ciocchetti

The 2011-2012 Supreme Court term created quite the media buzz. The Affordable Care Act cases and the controversial Arizona immigration law dominated the headlines. But the term also included other fascinating yet less sensationalized cases. The Court heard its fair share of criminal law controversies involving derelict defense attorneys and prosecutors as well as civil procedure disputes involving qualified immunity for witness in grand jury proceedings and private parties assisting the government in litigation. The justices also entertained arguments on a federal law allowing United States citizens born in Jerusalem to have “Israel” stamped as their birthplace on a passport. …

Emerging Technologies And Dwindling Speech, Jorge R. Roig

Jorge R Roig

When The Commerce Clause Goes International: A Proposed Legal Framework For The Foreign Commerce Clause, Naomi Harlin Goodno

Naomi Harlin Goodno

Congress is allowed “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The scope of Congress’s power to regulate commerce “among the several States” (the “Interstate Commerce Clause”) has long been debated. In the modern world of global interaction, Congress’s power to regulate commerce “with foreign Nations” (the “Foreign Commerce Clause”) may soon take center-stage. The U.S. Supreme Court, however, has not yet articulated a legal framework for the Foreign Commerce Clause which has lead to circuit splits and confusion as to the scope of this power. This legal issue has recently surfaced …

To Drink The Cup Of Fury: Funeral Picketing, Public Discourse And The First Amendment, Steven J. Heyman

Steven J. Heyman

In Snyder v. Phelps, the Supreme Court held that the Westboro Baptist Church had a First Amendment right to picket the funeral of a young soldier killed in Iraq. This decision reinforces a position that has become increasingly prevalent in First Amendment jurisprudence – the view that the state may not regulate public discourse to protect individuals from emotional or dignitary injury. In this Article, I argue that this view is deeply problematic for two reasons: it unduly sacrifices the value of individual personality and it tends to undermine the sphere of public discourse itself by negating the practical and …

Federal Judicial Selection And The Senate's Blue Slip "Tradition.", Tuan Samahon

Tuan Samahon

No abstract provided.

Copyright And Freedom Of Expression: Saving Free Speech From Advancing Legislation, Amanda B. Cook

Amanda B Cook

The Supreme Court has expressly recognized the possibility of a First Amendment defense to copyright infringement claims, but it has never actually found such a defense to apply to a case before it. And nearly every year, Congress enacts or attempts to enact more legislation that restricts speech under the banner of the copyright clause. The problem is that the natural right of free speech is being depleted by the legislatively granted right of intellectual property, putting both individual liberty and the public good at risk. Congress and the courts both must begin to remember that in the common law …

Police Cell Phone Searches: Where's The Privacy, John O. Hayward

John O. Hayward

Legal academicians are in a dither that law enforcement, using the exception of a search incident to a lawful arrest, are conducting warrantless searches of cell phones found on the person of those they take into custody. They regard such searches as violating the arrestees’ expectation of privacy, although courts that have considered the matter, by an overwhelming majority, have found lawful arrest trumps any expectation of privacy. This paper examines the legal precedent for searches incident to a lawful arrest being an exception to the Fourth Amendment’s prohibition against unreasonable searches and seizures, inquires into the expectation of privacy …

I Wanna Marry You: An Empirical Analysis Of The Distraction And Irrelevancy Of Doma, Deirdre M. Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that DOMAs preserve and stabilize the family. After concluding that DOMA is not associated with this goal, the article explores what variables are correlated with family stability. Next, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs continued attraction. Finally, the article offers pragmatic recommendations for achieving family stability.

Not “Politics As Usual”: A Hypothesis For Why Doctrine Matters In Judicial Decisionmaking, Brett Waldron

Brett Waldron

No abstract provided.

Ties That Bind: The Irrelevancy And Distraction Of Doma, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that DOMAs preserve and stabilize the family. After concluding that DOMA is not associated with this goal, the article explores what variables are correlated with family stability. Next, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs continued attraction. Finally, the article offers pragmatic recommendations for achieving family stability.

Ties That Bind: The Irrelevancy And Distraction Of Doma, Deirdre Bowen

Deirdre M Bowen

This article offers the only empirical analysis to date of national data evaluating the claim that DOMAs preserve and stabilize the family. After concluding that DOMA is not associated with this goal, the article explores what variables are correlated with family stability. Next, the article explores moral entrepreneurism and moral panic as a theoretical explanation for DOMAs continued attraction. Finally, the article offers pragmatic recommendations for achieving family stability.

The Drones Are Coming! Will The Fourth Amendment Stop The Threat To Our Privacy., Robert Molko

Robert Molko

The Drones are coming!

Will the Fourth Amendment Stop their Threat to our Privacy?

Local police have begun to use drones and are planning to expand their use of to survey communities for criminal activity.

On February 14, 2012, President Obama signed the “FAA Modernization and Reform Act of 2012″ into law; it requires the FAA to expedite the process to authorize both public and private use of drones in the national navigable airspace.

The Fourth Amendment of the U.S. Constitution protects our privacy from unreasonable intrusions by the government and we have come to depend on that.

Today, in …

When The Tenth Justice Doesn’T Bark: The Unspoken Freedom Of Health Holding In Nfib V. Sebelius, Abigail Moncrieff

Abigail R. Moncrieff

There was an argument that Solicitor General Donald B. Verrilli could have made—but didn’t—in defending Obamacare’s individual mandate against constitutional attack. That argument would have highlighted the role of comprehensive health insurance in steering individuals’ health care savings and consumption decisions. Because consumer-directed health care, which reaches its apex when individuals self insure, suffers from several known market failures and because comprehensive health insurance policies play an unusually aggressive regulatory role in attempting to correct those failures, the individual mandate could be seen as an attempt to eliminate inefficiencies in the health care market that arise from individual decisions to …

In Defense Of Taxpayer Funded Lobbying: Securing An Affirmative Right To Intergovernmental Communication, Andrew Emerson

Andrew Emerson

Recent budget gaps have driven local governments to increase their efforts to secure state and federal funding for priority projects. In reply, activists have advocated for legislative proposals that would deny municipal and county governments the right to use public funds for these purposes, arguing that taxpayer funded lobbying disfranchises individual citizens by spending tax dollars to promote spending that they oppose. Despite a long-term judicial trend that supports local governments’ right to use public funds to engage in lobbying activity, state police powers leave these entities vulnerable to activist-driven legislative initiatives. This paper argues that local governments should respond …

Does The Individual Mandate Coerce?, Sergio Campos, Raphael Boleslavsky

Sergio J. Campos

The Patient Protection and Affordable Care Act includes an individual mandate which penalizes individuals who do not purchase health insurance. Critics of the individual mandate, including a majority of justices on the Supreme Court, contend that Congress cannot use its Commerce Clause power to coerce individuals to buy a product. Supporters concede that the mandate coerces but argue that it is otherwise permissible under the Commerce Clause. This Essay questions whether the individual mandate coerces. It uses a simple economic model to show that, under certain conditions, the individual mandate induces insurers to sell health insurance at a price each …

Harmelin's Faulty Originalism, Michael J.Z. Mannheimer

Michael J.Z. Mannheimer

In Harmelin v. Michigan, in 1991, Justice Scalia, writing only for himself and Chief Justice Rehnquist, set forth the claim that the Cruel and Unusual Punishments Clause, as understood in 1791, did not require proportionality in sentencing. Instead, he argued, it was understood at that time as addressing only certain methods of punishment. Twenty-one years later, the plurality opinion in Harmelin remains the foundation for conservative originalist arguments against the notion that the Clause forbids disproportionate punishment. It has continued to be cited by its adherents, Justices Scalia and Thomas, as recently as the last week of the October 2011 …

The Lawlessness Of Sebelius, Gregory Magarian

Gregory P. Magarian

After the U.S. Supreme Court in National Federation of Independent Business v. Sebelius held nearly all of the Patient Protection and Affordable Care Act constitutional, praise rained down on Chief Justice John Roberts. The Chief Justice’s lead opinion broke with his usual conservative allies on the Court by upholding the Act’s individual mandate as a valid enactment under the Taxing Clause. Numerous commentators have lauded the Chief Justice for his courage and pragmatism. In this essay, Professor Magarian challenges the heroic narrative surrounding the Chief Justice’s opinion. He contends that the opinion is, in two senses, fundamentally lawless. First, the …

The Health Care Cases And The New Meaning Of Commandeering, Bradley Joondeph

Bradley W. Joondeph

The Supreme Court’s decision in the Health Care Cases to sustain the central provisions of the Affordable Care Act (or ACA) was hugely important in several ways. Most commentators have focused on the Court’s upholding of the ACA’s minimum coverage provision. But the Court’s Medicaid holding—that the ACA coerced (and thus commandeered) the states by making their preexisting Medicaid funds contingent on the states’ expanding their programs—may actually be more significant as a matter of constitutional law.

The basic thesis of this article is that, in finding the ACA’s Medicaid expansion provisions coercive, the Court has re-conceptualized what constitutes a …

Taking Religion Out Of Civil Divorce, Julia Halloran Mclaughlin

Julia Halloran McLaughlin

Notoriously Lousy: Applying The Strickland Test When Defense Counsel Fails To Seek To Avoid The Imposition Of Collateral Consequences, Alfredo Vasquez

Alfredo Vasquez

From the 1970s through the early 2000s, plea bargains resolved the vast majority of criminal cases in the United States. While the number of guilty pleas has been consistently high, the number of collateral consequences flowing from criminal convictions has increased. The Supreme Court imposed some regulation on guilty pleas during the last part of the 1960s but it was not until its decision in Padilla v. Kentucky in 2010 that the Court began regulating defense counsel’s duties towards his client during plea negotiations. The Court so far has limited its rulings to immigration consequences in Padilla, and the attorney-client …

Explaining The Rise Of State And Local Immigration Laws, Pratheepan Gulasekaram

Pratheepan Gulasekaram

This Article provides a systematic empirical investigation of the genesis of state and local immigration regulations, discrediting the popular notion that they are caused by uneven demographic pressures across the country. Instead, we find systematic evidence for the significance of political contexts such as the strength of political parties in states and localities. The story we tell in this paper is both political and legal: understanding immigration politics uncovers vital truths about the recent rise of subnational involvement in a policy arena courts and commentators have traditionally ascribed to the federal government. This recognition of the political dynamics of immigration …

Family Law's Challenge To Religious Liberty, Raymond O'Brien

Raymond C. O'Brien Professor

FAMILY LAW’S CHALLENGE TO RELIGIOUS LIBERTY Raymond C. O’Brien ABSTRACT Towards the end of the 1960s, states began to enact no-fault divorce; eventually every state would permit marriages to be dissolved without extensive litigation, often on the ground of separation for a minimum period of time, or irreconcilable differences. Such innovative family law legislation challenged the heretofore dominant worldview, which viewed marriage as dissoluble only when circumstances were extreme. Throughout the 1970s an increasing number of adult men and women cohabited as same and opposite sex couples; their rights as nonmarital cohabitants protected under expanding Constitutional guarantees and judicial decisions. …