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Articles 1 - 8 of 8
Full-Text Articles in Law
The Water Cycle Boogie: Clean Water Act Jurisdiction, Home Rule, And Water Law, Colin W. Maguire
The Water Cycle Boogie: Clean Water Act Jurisdiction, Home Rule, And Water Law, Colin W. Maguire
Et Cetera
The EPA and US Army Corps of Engineers’ agency rule regarding the definition of “Waters of the United States” under the Clean Water Act increased jurisdictional assertions by as much as 5%. What’s the big deal? This violates the Home Rule of state and local governments. This violation also creates concerns where many property owners are not sure if they need federal permits to develop land under the Clean Water Act. With issues like this new Clean Water Act rule, the drought conditions in the Western U.S., and international concerns regarding fresh water, water law is a critical area which …
Sign Regulation After Reed: Suggestions For Coping With Legal Uncertainty, Alan C. Weinstein
Sign Regulation After Reed: Suggestions For Coping With Legal Uncertainty, Alan C. Weinstein
Law Faculty Articles and Essays
This article discusses Reed v. Town of Gilbert, in which the Court resolved a Circuit split over what constitutes content based sign regulations. We note that Justice Thomas's majority opinion applies a mechanical "need to read" approach to this question, and then explore the doctrinal and practical concerns raised by this approach. Doctrinally, we explore the tensions between Thomas's "need to read" approach and the Court's current approach of treating some regulation of speech as content-neutral despite the fact that a message must be read to determine its regulatory treatment. A prime example being the Court's "secondary effects" doctrine. …
Sign Regulation After Reed: Suggestions For Coping With Legal Uncertainty, Alan Weinstein, Brian Connolly
Sign Regulation After Reed: Suggestions For Coping With Legal Uncertainty, Alan Weinstein, Brian Connolly
All Maxine Goodman Levin School of Urban Affairs Publications
This article discusses Reed v. Town of Gilbert, in which the Court resolved a Circuit split over what constitutes content based sign regulations. We note that Justice Thomas's majority opinion applies a mechanical "need to read" approach to this question, and then explore the doctrinal and practical concerns raised by this approach. Doctrinally, we explore the tensions between Thomas's "need to read" approach and the Court's current approach of treating some regulation of speech as content-neutral despite the fact that a message must be read to determine its regulatory treatment. A prime example being the Court's "secondary effects" doctrine. Practically, …
The "Originalism Is Not History" Disclaimer: A Historian's Rebuttal, Patrick J. Charles
The "Originalism Is Not History" Disclaimer: A Historian's Rebuttal, Patrick J. Charles
Et Cetera
Many originalists disclaim that competing strands of originalism are not history. This is perplexing, in part because the disclaimer contradicts what is arguably the central purpose of originalism: decoding the original meaning of constitutional text at a fixed point in time. Originalism’s strength is that it provides legal professionals with familiar tools to supplement the world of historical uncertainty. By accepting the premise that originalists only need to be familiar with a “subspecialty of history” or the “investigation of legal meanings,” originalism fails by facilitating mythmaking more so than fact-finding. Of course, originalism can be reformed in this respect. One …
The Heritage Guide To The Constitution, Second Edition: What Has Changed Over The Past Decade, And What Lies Ahead?, David Forte, Edwin Meese Iii, Matthew Spalding
The Heritage Guide To The Constitution, Second Edition: What Has Changed Over The Past Decade, And What Lies Ahead?, David Forte, Edwin Meese Iii, Matthew Spalding
Law Faculty Articles and Essays
The Heritage Guide to the Constitution, first released in 2005, brought together more than 100 of the nation’s best legal experts to provide line-by-line examination of each clause of the Constitution and its contemporary meaning—the first such comprehensive commentary to appear in many decades. The Heritage Guide to the Constitution: Fully Revised Second Edition takes into account a decade of Supreme Court decisions and legal scholarship on such issues as gun rights, religious freedom, campaign finance, civil rights, and health care reform. The Founders’ guiding principles remain unchanged, yet a number of Supreme Court decisions over the past decade …
“Fire Away”: I Have No Right To Not Be Insulted, David Barnhizer
“Fire Away”: I Have No Right To Not Be Insulted, David Barnhizer
David Barnhizer
In theory, universities are the institutions that are responsible for advancing our freedom of thought and discourse through the work of independent scholars and the teaching of each generation of students. But for several decades, universities and other educational institutions have increasingly set up rules aimed at protecting individuals and groups from criticism that those newly empowered individuals and groups consider insensitive, offensive, harassing, intolerant and disrespectful, or critical of their core belief systems. Even though it has been claimed that disadvantaged interest groups have a right to use one-sided tactics of intolerance against those they consider to be responsible …
The First Amendment Protection Of Charitable Speech, Joseph Mead
The First Amendment Protection Of Charitable Speech, Joseph Mead
All Maxine Goodman Levin School of Urban Affairs Publications
Although philanthropy ranks among the best of human endeavors, local governments across the country have severely restricted charitable entreaties by organizations and individuals alike, all in the name of eliminating "panhandlers." These laws rely on premises that increasingly conflict with Supreme Court instructions about the freedom of speech. Yet lingering uncertainty about where exactly charitable restrictions fall in First Amendment jurisprudence has encouraged local governments to innovate new statutory formulations to wage war on expressions of poverty in order to "clean up" their cities. This piece examines seven arguments commonly used to justify restrictions on charitable solicitations and finds them …
King, Chevron, And The Age Of Textualism, Abigail R. Moncrieff
King, Chevron, And The Age Of Textualism, Abigail R. Moncrieff
Law Faculty Articles and Essays
In the King v. Burwell oral arguments, Chief Justice John Roberts—usually one of the more active members of the Court—asked only one substantive question, addressed to the Solicitor General: "If you're right about Chevron [deference applying to this case], that would indicate that a subsequent administration could change [your] interpretation?" As it turns out, that question was crucial to Roberts's thinking and to the 6-3 opinion he authored, but almost all commentators either undervalued or misunderstood the question's import (myself included). The result of Roberts's actual thinking was an unfortunate outcome for Chevron—and potentially for the rule of law—despite …