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Articles 1 - 30 of 317
Full-Text Articles in Law
Separation Of Santa And State Is Smart, Fair, Alan E. Garfield
Separation Of Santa And State Is Smart, Fair, Alan E. Garfield
Alan E Garfield
No abstract provided.
The Sound Of Silence: Eligibility Qualifications And Article Iii, James F. Ianelli
The Sound Of Silence: Eligibility Qualifications And Article Iii, James F. Ianelli
James Ianelli
The Constitution’s eligibility qualifications in Articles I and II have drawn increased scrutiny in recent national elections. No scholarship to date, however, has examined why the Framers omitted any comparable qualifications from Article III. This paper presents the question of what made the judiciary unique relative to the other branches such that any nominated and confirmed candidate could sit on the federal bench.
The answer to this question sheds new light on the wisdom of eligibility qualifications in Articles I and II. Although no direct historical record details the basis for the omission, a number of factors appear relevant. Without …
Torture, Impunity, And The Need For Independent Prosecutorial Oversight, Fran Quigley
Torture, Impunity, And The Need For Independent Prosecutorial Oversight, Fran Quigley
Fran Quigley
When executive branch misconduct is alleged, an inherent conflict of interest is presented by investing prosecutorial discretion in a U.S. Attorney General appointed by, and serving at the pleasure of, the President.
Various commentators, including Justice Antonin Scalia, Professor Stephen Carter, and the many critics of the former independent counsel statute, have posited that this conflict will be overcome by checks on executive power provided by the legislative branch, the judiciary, and political pressure.
That sanguine view of adequate executive branch oversight was put to the test when acts of torture were authorized by high-level members of the George W. …
Running Cars, Constitutions And Metaphors Into The Ground, Mark A. Graber
Running Cars, Constitutions And Metaphors Into The Ground, Mark A. Graber
Mark Graber
Professor Sanford Levinson frequently analogizes the Constitution of the United States to a vehicle that desperately needs repairs. “[R]elying on the present Constitution.” he writes, “is similar to driving a car with very bad brakes and slick tires.” Much commentary on Our Undemocratic Constitution implicitly challenges the automotive metaphor. The Constitution of the United States, supporters profess, is not really as bad as Levinson would have us believe. The following pages take a road less traveled. Ancient constitutional institutions in the United States are suffering from severe wear and tear. Nevertheless, decisions to drive a comparatively unsafe car are often …
“Runaway Train” : Controlling Crimes Committed By Private Contractors Through Application Of The Uniform Code Of Military Justice, Matthew Dahl
Matthew C. Dahl
No abstract provided.
How The Courts, Along With Public Dissatisfaction With The Status Quo, Ironically Aided In The Creation Of New Hollywood, Which Promoted Films Of Lawlessness, Disorder And Instability, Sam A. Blaustein
Sam A Blaustein
The period known as New Hollywood in American film was brought about by several seminal American legal decisions coupled with a growing dissatisfaction with the status quo. A series of First Amendment cases, along with the 1948 Paramount decision, forced Hollywood to produce graphic and existential films that showcased in unprecedented style the issues faced by the emerging disaffected youth generation.
The Principle Of Equal Treatment In Triangular Relationships, Michael Gruenberger
The Principle Of Equal Treatment In Triangular Relationships, Michael Gruenberger
Michael Gruenberger
The European Court of Justice [ECJ] held in Coleman v. Attrigde Law, Case C-303/06, E.C.R. I- [2008], that the prohibition of direct discrimination laid down in Art. 1 and 2 Directive 2000/78/EC is not limited only to people who are themselves disabled, but includes a less favorable treatment of an employee which is based on the disability of her child, whose care is provided primarily by that employee. The Coleman case is the first noticeable case in European anti-discrimination law with facts involving a triangular relationship: the person who presumably discriminates, the injured party and the carrier of the characteristics …
Challenging The Doctrine Of Consular Non-Reviewability In Immigration Cases, Donald S. Dobkin
Challenging The Doctrine Of Consular Non-Reviewability In Immigration Cases, Donald S. Dobkin
Donald S. Dobkin
No abstract provided.
Marriage, Property And [In]Equality: Remedying Erisa's Disparate Impact On Spousal Wealth, Paula A. Monopoli
Marriage, Property And [In]Equality: Remedying Erisa's Disparate Impact On Spousal Wealth, Paula A. Monopoli
Paula A Monopoli
Congress is considering pension reform in the wake of the tremendous loss in market value of retirement plans during the current recession. This article suggests that this is a historic moment to remedy a previously unidentified, unintended but profound gender disparity embedded in the federal law governing retirement plans in this country. It explores the common perception that while contemporary law and policy aim to facilitate equality within marriage, including in the area of property ownership, embracing equitable distribution in reallocating property upon divorce, the Employment Retirement Income Security Act’s (ERISA) structuring of retirement asset accumulation runs counter to this …
And The Ban Plays On . . . For Now: Why Courts Must Consider Religion In Marriage Equality Cases, Matthew E. Feinberg
And The Ban Plays On . . . For Now: Why Courts Must Consider Religion In Marriage Equality Cases, Matthew E. Feinberg
Matthew E Feinberg
The gay marriage ban: it is one of the most controversial issues in politics, in society, in religion, and in law today. In each venue, anything goes, everyone has an opinion, and the result is rarely consistent. The decisions may be different, but the claimants’ arguments are usually the same – banning same-sex marriage denies same-sex couples equal protection under the law.
The pink elephant in the marriage equality courtroom is religion, yet it is extremely rare for same-sex marriage bans to receive First Amendment religious rights-based inquiry. In 2009, the Supreme Court of Iowa changed all that. In its …
An Escape Route From The Medellin Maze, Anthony S. Winer
An Escape Route From The Medellin Maze, Anthony S. Winer
Anthony S. Winer
The recent Supreme Court decision in Medellín v. Texas created a veritable “maze” for foreign prisoners in the U.S., and their countries of nationality, who might wish to enforce their rights under the Vienna Convention on Consular Relations (the “VCCR”). This decision, and other Supreme Court and lower federal court opinions, have erected “dead ends” for prisoners and their countries of nationality that block their “escape” from this maze. These opinions, among other implications, cast substantial doubt on the availability of judicial relief for individuals under the VCCR, foreclose executive enforcement, and exclude the possibility of corrective injunctions for many …
Do Kids Belong In Prison? The Answer Will Say A Lot About What Type Of Society We Are, Alan E. Garfield
Do Kids Belong In Prison? The Answer Will Say A Lot About What Type Of Society We Are, Alan E. Garfield
Alan E Garfield
No abstract provided.
The True Cost Of Economic Rights Jurisprudence, Max Mccann
The True Cost Of Economic Rights Jurisprudence, Max Mccann
Max McCann
This Article discusses the distinction between economic and individual rights in contemporary political and legal discourse. As discussed herein, the phrase economic rights typically invokes notions of the ability to spend, save, and transfer wealth freely, as well as other related issues, such as the deregulation of industry and tax reform. In contrast, individual rights conjures ideas of being free in one’s person, including reproductive rights, free speech, and freedom of assembly.
With both historic and recent examples, this Article argues that the distinction between economic and individual rights is problematic at best. Rights spring forth from human interests, and …
The Supreme Court's Assault On Litigation: Why (And How) It Might Be A Good Thing For Health Law, Abigail R. Moncrieff
The Supreme Court's Assault On Litigation: Why (And How) It Might Be A Good Thing For Health Law, Abigail R. Moncrieff
Abigail R. Moncrieff
In recent years, the Supreme Court has narrowed or eliminated private rights of action in many legal regimes, much to the chagrin of the legal academy. That trend has had a significant impact on health law; the Court’s decisions have eliminated the private enforcement mechanism for at least three important healthcare regimes: Medicaid, employer-sponsored insurance, and medical devices. In a similar trend outside the courts, state legislatures have capped noneconomic and punitive damages for medical malpractice litigation, weakening the tort system’s deterrent capacity in those states. This Article points out that the trend of eliminating private rights of action in …
Public Interest Litigation In India: Overreaching Or Underachieving?, Varun Gauri
Public Interest Litigation In India: Overreaching Or Underachieving?, Varun Gauri
Varun Gauri
Public interest litigation has historically been an innovative judicial procedure for enhancing the social and economic rights of disadvantaged and marginalized groups in India. In recent years, however, a number of criticisms of public interest litigation have emerged, including concerns related to separation of powers, judicial capacity, and inequality. These criticisms have tended to abstraction, and the sheer number of cases has complicated empirical assessments. This paper finds that public interest litigation cases constitute less than 1 percent of the overall case load. The paper argues that complaints related to concerns having to do with separation of powers are better …
Sex Is Not Enough: How Schroer Teaches Us That Transgender Employees Need Explicit Protection From Discrimination, Heron Greenesmith
Sex Is Not Enough: How Schroer Teaches Us That Transgender Employees Need Explicit Protection From Discrimination, Heron Greenesmith
Heron Greenesmith
In Schroer v. Billington, Judge Robertson of the DC District Court held that transgender employees are protected from discrimination by Title VII's prohibition on discrimination "because of . . . sex." While the decision was a ground breaking one, this article argues that it is not enough to truly protect transgender employees from discrimination. The article advocates that to provide true protection, Congress should pass the Employment Non-Discrimination Act, which provides explicit protection for employees on the basis of sexual orientation and gender identity.
Proportionality And Prosecutorial Discretion: Challenges To The Constitutionality Of Georgia’S Death Penalty Laws And Procedures Amidst The Deficiencies Of The State’S Mandatory Appellate Review Structure, Kristen M. Nugent
Kristen Nugent
Following the U.S. Supreme Court’s recent denial of certiorari in Walker v. Georgia—in which Justice Stevens and Justice Thomas expressed sharply divergent interpretations of the Court’s precedent regarding the importance of a thorough proportionality review to Georgia’s capital sentencing scheme—the Court seems poised to reexamine the constitutional implications of Georgia’s death penalty statute and the manner in which it is implemented. In anticipation of such an analysis, and in order to advocate that the U.S. Supreme Court clarify its position in a way that aligns with its longstanding tradition of requiring moderation in the infliction of death, this article dissects …
“U.S. Consumer Protection: Striking A Balance Between The Fda Approval Process And State Tort Law Claims Through The Medical Device Safety Act Of 2009”, Rachel V. Rose
rachel v rose
No abstract provided.
The Principle Of Proportionality: Its Dimensions And Limits, Juan Cianciardo
The Principle Of Proportionality: Its Dimensions And Limits, Juan Cianciardo
Juan Cianciardo
The purpose of the present paper can be synthesized in the following points: a) to expose the concept of the principle of proportionality in its broadest sense and its different components or dimensions; b) to draw the attention on an approach which is usually not studied by authors, that is, the fact that the application of the principle is not enough to guarantee the supremacy of the human rights, at least in some cases; c) lastly, to point out those requirements that could protect proportionality from the risk mentioned in b).
A Caustic Critique Of District Of Columbia V Heller: An Extreme Makeover Of The Second Amendment, Robert L. Potter
A Caustic Critique Of District Of Columbia V Heller: An Extreme Makeover Of The Second Amendment, Robert L. Potter
Robert L Potter
ABSTRACT OF ARTICLE In June, 2008, in District of Columbia v. Heller, the Supreme Court of the United States (5-4) held that the Second Amendment contained a right to possess and own firearms for personal purposes, removing any vestige of the famous introductory clause by James Madison, “A well regulated militia being necessary for the security of a free State ….” In this article the author takes serious issue with the methodology of the majority’s opinion by Mr. Justice Scalia, and demonstrates that: (1) Mr. Justice Scalia’s attempt to prove that “bear arms” does not have its idiomatic meaning, “to …
Prisons Without Convicts: Why Similar Protections As Those Offered To Prison Inmates By The Constitution Should Be Extended To Immigrant Detainees, Paul Wayner
Paul Wayner
No abstract provided.
Multiple Permits, Temporary Takings, And Just Compensation, Garrett Power
Multiple Permits, Temporary Takings, And Just Compensation, Garrett Power
Garrett Power
No abstract provided.
Palazzolo V. Rhode Island: Takings, Investment-Backed Expectations, And Slander Of Title, Garrett Power
Palazzolo V. Rhode Island: Takings, Investment-Backed Expectations, And Slander Of Title, Garrett Power
Garrett Power
No abstract provided.
Animal Cruelty Vs. Freedom Of Speech, Alan E. Garfield
Animal Cruelty Vs. Freedom Of Speech, Alan E. Garfield
Alan E Garfield
No abstract provided.
Needles And Notebooks: The Limits Of Requiring Immunization For School Attendance, Allan J. Jacobs
Needles And Notebooks: The Limits Of Requiring Immunization For School Attendance, Allan J. Jacobs
Allan J. Jacobs
The constitutional requirements for compulsory vaccination are analyzed in the context of the release of a vaccine against human papillomavirus, a virus associated with development of various kinds of cancer, requiring many years after infection for cancer to develop. Examination of the requirements of Jacobson v. Massachusetts suggests that proposed vaccination programs be subjected to a balancing test that considers the severity of the disease, the risks of the vaccine, the amount of overall clinical experience with the vaccine, and alternate methods of prevention. It is argued that there are further constraints if vaccination is to be a requirement for …
Two Dissents, Charles S. Doskow
Two Dissents, Charles S. Doskow
Charles S Doskow
This essay discusses individual dissents by two justices of the Supreme Court in cases decided at the close of the most recent term, and comments on the individual qualities that led each to make individual comments. The dissent of Justice David Souter in Osborne, in which the majority refused to find a constitutional right to post-conviction DNA testing, urged a moderate view with respect to the creation of new rights where technology has altered traditional fact patterns. Justice Clarence Thomas’s dissent in the voting rights case is striking, in that he alone on the Court would have held the 2006 …
Using Activism Appropriately, Alan E. Garfield
About Time: The Timeliness Of Habeas Corpus And An Exceptional Circumstance In Boumediene V. Bush, Benjamin J. Lozano
About Time: The Timeliness Of Habeas Corpus And An Exceptional Circumstance In Boumediene V. Bush, Benjamin J. Lozano
Benjamin J Lozano
In wartime states of emergency, the Supreme Court has historically held that a constitutional entitlement to habeas review is neither predicated on the length of detention nor the timeliness of due process, but rather is objective, concrete, and atemporal. The question of wartime habeas corpus has therefore always been an ontological question, exclusively determined by the corresponding categories of subject and space. However, this paper argues that a surreptitious shift in methodology buried inside the ostensible precedent of Boumediene v. Bush should not be overlooked, for the ruling signals the inaugural moment whereby the length and indefinite duration (i.e. the …
La Incidencia De La Acción De Tutela En Las Políticas Públicas, Fernando Castillo Cadena
La Incidencia De La Acción De Tutela En Las Políticas Públicas, Fernando Castillo Cadena
Fernando Castillo Cadena
No abstract provided.
Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer
Politics At The Pulpit: Tax Benefits, Substantial Burdens, And Institutional Free Exercise, Lloyd Hitoshi Mayer
Lloyd Hitoshi Mayer
More than fifty years ago, Congress enacted a prohibition against political campaign intervention for all charities, including churches and other houses of worship, as a condition for receiving tax deductible contributions. Yet the IRS has never taken a house of worship to court for alleged violation of the prohibition through political comments from the pulpit, presumably at least in part because of concerns about the constitutionality of doing so. This decision is surprising, because a careful review of Free Exercise Clause case law – both before and after the landmark Employment Division v. Smith decision – reveals that the prohibition …