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Articles 1 - 23 of 23
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.
Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg
Judging Genes: Implications Of The Second Generation Of Genetic Tests In The Courtroom, Diane E. Hoffmann, Karen H. Rothenberg
Karen H. Rothenberg
The use of DNA tests for identification has revolutionized court proceedings in criminal and paternity cases. Now, requests by litigants to admit or compel a second generation of genetic tests – tests to confirm or predict genetic diseases and conditions – threaten to affect judicial decision-making in many more contexts. Unlike DNA tests for identification, these second generation tests may provide highly personal health and behavioral information about individuals and their relatives and will pose new challenges for trial court judges. This article reports on an original empirical study of how judges analyze these requests and uses the study results …
Animal Cruelty Vs. Freedom Of Speech, Alan E. Garfield
Animal Cruelty Vs. Freedom Of Speech, Alan E. Garfield
Alan E Garfield
No abstract provided.
Using Activism Appropriately, Alan E. Garfield
U.S. Supreme Court Environmental Cases 2008-2009: A Year Like No Other, James R. May
U.S. Supreme Court Environmental Cases 2008-2009: A Year Like No Other, James R. May
James R. May
The author of this article says the last term of the U.S. Supreme Court was in many respects like no other in modern environmental law. During the 2008-2009 term, the Supreme Court ruled on novel and important questions concerning preliminary injunctions under the National Environmental Policy Act; cost-benefit analyses and permitting under the Clean Water Act; arranger and joint and several liability under the Comprehensive Environmental Response, Compensation, and Liability Act; and environmental standing. At no turn, says the author, did the court favor the environment over other interests. He says the court even reached down to reverse decisions in …
Should Race Matter When Rectifying Past Errors?, Alan E. Garfield
Should Race Matter When Rectifying Past Errors?, Alan E. Garfield
Alan E Garfield
No abstract provided.
Foul Language And Free Speech, Alan E. Garfield
Korematsu: A Constitutional Calamity; Equal Protection Versus National Security, Kristopher W. Zinchiak
Korematsu: A Constitutional Calamity; Equal Protection Versus National Security, Kristopher W. Zinchiak
Kristopher W Zinchiak
Fred Korematsu was a United States citizen of unquestioned loyalty who had the harsh misfortune of becoming the focal point of one of the darkest eras in our great nation’s illustrious constitutional law history. The core of this disaster arguably began with the fervent racism and xenophobic attitudes that our nation harbored against the Japanese throughout the middle of the 19th century. It was during this time period that many people considered those of Asian descent to be “savage” and “uncivilized,” perpetuating numerous occurrences of racial hostility and violence. This anti-Japanese, “yellow peril” mindset then proliferated exponentially on December 7, …
Luther Martin, Maryland And The Constitution, William L. Reynolds
Luther Martin, Maryland And The Constitution, William L. Reynolds
William L. Reynolds
Reviews the life and contributions of Maryland lawyer and scholar Luther Martin (1748-1826).
Death Is Different, But Not Really, Corinna Barrett Lain
Death Is Different, But Not Really, Corinna Barrett Lain
Corinna Lain
The Supreme Court’s landmark death penalty rulings over the past several years have renewed scholarly criticism of the Eighth Amendment’s “evolving standards of decency” doctrine, which invalidates a punishment when a national consensus has formed against it. Critics claim that it makes no sense for constitutional protection to follow majoritarian sentiment—particularly in the capital context, where death penalty politics make “tyranny of the majority” more than a theoretical concern. Defenders contend that while majoritarian constitutional protection may be problematic in general, Eighth Amendment protection is different; the text of the “cruel and unusual punishments” clause invites, if not requires, protection …
In A Dissenting Voice: Justice Ginsburg's Federalism, Russell Miller
In A Dissenting Voice: Justice Ginsburg's Federalism, Russell Miller
Russell A. Miller
No abstract provided.
The Geography Of Discrimination: The Seattle And Louisville Cases And The Legacy Of Brown V. Board Of Education, Robert Hayman
The Geography Of Discrimination: The Seattle And Louisville Cases And The Legacy Of Brown V. Board Of Education, Robert Hayman
Robert L. Hayman
No abstract provided.
Haunted By Brown, Robert Lipkin
Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James May, Erin Daly
Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James May, Erin Daly
Erin Daly
This article examines the extent to which constitutionally embedded fundamental environmental rights have met the promise of ensuring a right to an adequate environment. It explains these results and suggests ways to neutralize judicial resistance to these emerging constitutional rights. In Part II we explain the prevalence of constitutionally entrenched rights to a quality environment. In Part III, we provide examples of the extent to which courts have enforced these provisions. In Part IV, we examine institutional and structural factors, conceptual disjunctions, and pragmatic considerations that help to explain judicial receptivity to constitutionally entrenched environmental rights. And in Part V …
Introduction, Robert Hayman, Leland Ware
Rights, Remedies And Facial Challenges, Maya Manian
Rights, Remedies And Facial Challenges, Maya Manian
Maya Manian
This brief comment extends upon a key point raised by Caitlin Borgmann’s article, Holding Legislatures Constitutionally Accountable Through Facial Challenges, which argues in part that the Roberts Court takes an outcome-driven approach to facial challenges. Building on Borgmann’s analysis, this comment further suggests that the Court not only manipulates the law in an outcome determinative manner, but also exploits the rules regarding the use of as-applied and facial challenges as a means to rewrite substantive law without having to openly overrule prior precedent. This comment focuses on Gonzales v. Carhart as an illustration of the Roberts Courts’ manipulation of procedural …
Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James R. May, Erin Daly
Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James R. May, Erin Daly
James R. May
This article examines the extent to which constitutionally embedded fundamental environmental rights have met the promise of ensuring a right to an adequate environment. It explains these results and suggests ways to neutralize judicial resistance to these emerging constitutional rights. In Part II we explain the prevalence of constitutionally entrenched rights to a quality environment. In Part III, we provide examples of the extent to which courts have enforced these provisions. In Part IV, we examine institutional and structural factors, conceptual disjunctions, and pragmatic considerations that help to explain judicial receptivity to constitutionally entrenched environmental rights. And in Part V …
The Irrational Woman: Informed Consent And Abortion Decision-Making, Maya Manian
The Irrational Woman: Informed Consent And Abortion Decision-Making, Maya Manian
Maya Manian
In Gonzales v. Carhart, the Supreme Court upheld a federal ban on a type of second-trimester abortion that many physicians believe is safer for their patients. Carhart presented a watershed moment in abortion law, because it marks the Supreme Court’s first use of the anti-abortion movement’s “woman-protective” rationale to uphold a ban on abortion and the first time since Roe v. Wade that the Court denied women a health exception to an abortion restriction. The woman-protective rationale asserts that banning abortion promotes women’s mental health. According to Carhart, the State should make the final decisions about pregnant women’s healthcare, because …
Constitutional Law And The Future Of Natural Resource Protection, James R. May
Constitutional Law And The Future Of Natural Resource Protection, James R. May
James R. May
This is a chapter of a recently published book that examines how constitutional law shapes natural resources law in the United States. Following a brief background, part I identifies and discusses the various constitutional law developments affecting the scope of Congress’s power to regulate the use of natural resources. It focuses primarily on the Commerce Clause (in conjunction with the corresponding case study) and the concomitant extrinsic limits on such authority, including principles of federalism and the Tenth Amendment, as well as the diminished Nondelegation doctrine. Part II does the same for state authority and the dormant Commerce and Supremacy …
Boumediene V. Bush And Guantanamo, Cuba: Does The 'Empire Strike Back'?, Ernesto A. Hernandez-Lopez
Boumediene V. Bush And Guantanamo, Cuba: Does The 'Empire Strike Back'?, Ernesto A. Hernandez-Lopez
Ernesto A. Hernandez
Commenting on the U.S. Supreme Court decision in Boumediene v. Bush (2008) and the U.S. occupation of the Naval Station at Guantanamo Bay, Cuba, this Article argues that anomaly on the base heavily influences "War on Terror" detention jurisprudence. Anomaly is created by agreements between the U.S. and Cuba in 1903 and 1934. They affirm that the U.S. lacks sovereignty over Guantanamo but retains "complete jurisdiction and control" for an indefinite period; while Cuba has "ultimate sovereignty." Gerald Neuman labels this an "anomalous zone" with fundamental legal rules locally suspended. The base was chosen as a detention center because of …
Police Paternalism: Community Caretaking, Assistance Searches, And Fourth Amendment Reasonableness, Michael R. Dimino
Police Paternalism: Community Caretaking, Assistance Searches, And Fourth Amendment Reasonableness, Michael R. Dimino
Michael R Dimino
The Intersection Of Constitutional Law And Environmental Litigation, James R. May
The Intersection Of Constitutional Law And Environmental Litigation, James R. May
James R. May
The U.S. Constitution propels the majority of environmental litigation. Thirty years ago, constitutional issues seldom arose in environmental law. Nowadays, nearly two in three federal environmental, energy and land use cases are litigated on constitutional grounds. Such cases implicate approximately twenty constitutional principles involving federalism, separation of powers and individual rights. Constitutional issues in environmental litigation are torn from the headlines, from climate change to natural resource extraction. Accordingly, this chapter aims to contextualize constitutional litigation for environmental lawyers in five ways. Part One provides a brief background to environmental litigation in the United States. Part Two addresses how constitutional …
Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet
Proportionality Balancing And Global Constitutionalism, Jud Mathews, Alec Stone Sweet
Jud Mathews
Over the past fifty years, proportionality balancing – an analytical procedure akin to strict scrutiny in the United States – has become a dominant technique of rights adjudication in the world. From German origins, proportionality analysis spread across Europe, into Commonwealth systems (Canada, New Zealand, South Africa), and Israel; it has also migrated to treaty-based regimes, including the European Union, the European Convention on Human Rights, and the World Trade Organization. Part II proposes a theory of why judges are attracted to the procedure, an account that blends strategic and normative elements. Parts III and IV provide a genealogy of …