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Full-Text Articles in Law
The Constraint Of History, Lorianne Updike Toler, Robert Capodilupo
The Constraint Of History, Lorianne Updike Toler, Robert Capodilupo
College of Law Faculty Publications
Accepted wisdom dictates that history does not constrain the behavior of the Supreme Court. Rather, it is merely a tool used to legitimize legal outcomes predetermined by policy. Recent studies claim to have confirmed this state of play, providing “proof” for the cynic and impelling apologists to fashion new justifications. Yet this study of all cases referencing the Constitutional Convention provides evidence that history can constrain judicial interpretation of the Constitution.
As proof of concept, this Article analyzes the extent to which Justices’ use of primary and secondary sources when referencing the Constitutional Convention is associated with casting cross-partisan votes …
Abortion And Safe Haven Laws, Jeffrey A. Parness
Abortion And Safe Haven Laws, Jeffrey A. Parness
College of Law Faculty Publications
Notwithstanding the assertions of the State of Mississippi, of one amicus, and of Justice Amy Coney Barrett in Dobbs v. Jackson Women’s Health Organization, abortion laws and safe haven laws are oil and vinegar. Not only do they not mix, but safe haven laws in some ways support the continuing validity of the balance on individual privacy interests and legitimate governmental interests struck in the Roe v. Wade decision on abortion. Both abortion availability laws and safe haven laws advance the interests of women who choose not to parent children within their existing family structures. But safe haven laws, …
The Roberts Court And Lost Esi, Jeffrey A. Parness
The Roberts Court And Lost Esi, Jeffrey A. Parness
College of Law Faculty Publications
John G. Roberts, Jr. was confirmed as Chief Justice of the U.S. Supreme Court in September 2005. Since then, there have been two major changes in the Federal Rules of Civil Procedure (FRCP) involving losses of discoverable electronically stored information (ESI). These changes address the duties of preserving some ESI for federal civil litigation and the sanctions available for preservation failures. The changes were embodied in FRCP 37, once in 2006 and once in 2015. The current Rule 37(e) provisions have always been accompanied by other FRCP discovery provisions on ESI, with some predating any version of Rule 37(e). To …
Privacy Qui Tam, Peter Ormerod
Privacy Qui Tam, Peter Ormerod
College of Law Faculty Publications
Privacy law keeps getting stronger, but surveillance-based businesses have proven immune to these new legal regimes. The disconnect between privacy law in theory and in practice is a multifaceted problem, and one critical component is enforcement.
Today, most privacy laws are enforced by governmental regulators—the Federal Trade Commission, the nascent California Privacy Protection Agency, and state attorneys general. An enduring impasse for proposed privacy laws is whether to supplement public enforcement by using a private right of action to authorize individuals to enforce the law.
Both of these conventional enforcement schemes have significant shortcomings. Public enforcement has proven inadequate because …
Unconstitutional Parenthood, Jeffrey A. Parness
Unconstitutional Parenthood, Jeffrey A. Parness
College of Law Faculty Publications
A flurry of recent noteworthy articles have urged the U.S. Supreme Court to elaborate further on the federal constitutional requisites for legal parenthood relevant to child custody, child visitation, and allocation of parental responsibility. These articles appear under such titles as Constitution of Parenthood, Constitutional Parenthood, Constitutional Parentage, and The Constitutionalization of Fatherhood. They follow recent initiatives by both the National Conference of Commissioners on Uniform State Laws (NCCUSL) and the American Law Institute (ALI) suggesting new forms of childcare parenthood. And they follow new parentage law initiatives by state legislatures and courts. This Article goes beyond these …