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Articles 1 - 30 of 37
Full-Text Articles in Law
Roe And The Original Meaning Of The Thirteenth Amendment, Kurt T. Lash
Roe And The Original Meaning Of The Thirteenth Amendment, Kurt T. Lash
Law Faculty Publications
The current debate over Roe v. Wade as a substantive due process right has prompted scholars to investigate alternative sources for a constitutional right to abortion. One approach argues that the Thirteenth Amendment’s prohibition on “slavery” and “involuntary servitude” prohibits the government from denying women the right to terminate a pregnancy. Scholars making this argument con-cede that the right to abortion was not the expected application of the Thirteenth Amendment but insist that a forced continued pregnancy falls within the original meaning of the Amendment’s terms.
Abortion And The Constitutional Right (Not) To Procreate, Mary Ziegler
Abortion And The Constitutional Right (Not) To Procreate, Mary Ziegler
University of Richmond Law Review
No abstract provided.
Virginia's "War On Women": How Forcing Women To Have An Ultrasound Before Abortion Is Unconstitutional, Alison B. Linas
Virginia's "War On Women": How Forcing Women To Have An Ultrasound Before Abortion Is Unconstitutional, Alison B. Linas
Law Student Publications
This comment will discuss how the ultrasound bill, like similar ones in other states, is unconstitutional for two reasons....Part II of this comment will focus on the Supreme Court's role in shaping abortion policy....Part III will describe Virginia’s new ultrasound requirement and how the above-mentioned Supreme Court decisions affect the new bill’s legality. Part III(A) will lay out the relevant portions of the bill and discuss its legislative history. Part III(B) will analyze the bill through Casey’s undue burden lens....Part III(C) will argue that requiring a woman to have a mandatory medical procedure effectively prevents her from refusing medical care, …
How (Not) To Talk About Abortion, Meredith J. Harbach
How (Not) To Talk About Abortion, Meredith J. Harbach
Law Faculty Publications
In this essay, I aim to have a conversation about how we converse- how we talk-about abortion and related issues. In the process, I want to consider how we might come together to discover issues of shared commitment and values and transform the existing abortion debate. I begin with a review of some of the more notable abortion-related rhetoric during the 2012 Virginia General Assembly, and contrast that rhetoric with the discourse in my classroom. I then consider whether and how we might move forward together toward a more meaningful and productive dialogue on these issues.
Lawyer Advertising And The Philosophical Origins Of The Commercial Speech Doctrine, Ronald D. Rotunda
Lawyer Advertising And The Philosophical Origins Of The Commercial Speech Doctrine, Ronald D. Rotunda
University of Richmond Law Review
The topic of lawyers advertising for clients seems prosaic enough, but it is really a subset of a much larger, more theoretical question. What Americans think about the Constitutional right of lawyers to advertise and market their services both reflects and molds what we think about the right to be left alone. In 1928, Justice Brandeis, in his famous dissent in Olmstead v. United States, wrote that our Constitution "conferred, as against the Government, the right to be left alone-the most comprehensive of rights and the right most valued by civilized men." Justice Brandeis did not speak in a vacuum; …
The Presidential Election Case: Remembering Safe Harbor Day, Gary C. Leedes
The Presidential Election Case: Remembering Safe Harbor Day, Gary C. Leedes
University of Richmond Law Review
The 2000 presidential election transported the nation down a long and winding road without a map and headed in an uncertain direction. While it might be an exaggeration to say that the system of constitutional law was self-destructing, it is undoubtedly true that the events surrounding the election were spinning out of control, and that irreparable harm to the electoral process and thereby the nation was imminent.
The Law Professor As Populist, Mark A. Graber
The Law Professor As Populist, Mark A. Graber
University of Richmond Law Review
A new populism is taking root in the strangest soil, American law schools. Tocqueville regarded "the profession of law" as an "aristocratic element," "a sort of privileged body in the scale of intellect." Lawyers, he observed, belonged to "thehighest political class," and routinely developed "some of the tastes and habits of aristocracy." During the 1990s, however, bold challenges to elite rule in the name ofpopular majoritarianism were issued by distinguished professors and chair holders at the most prestigious law schools in the United States. Such leading jurists as Richard Parker, Jack Balkin, Akbil Reed Amar, Sanford Levinson, and Mark Tushnet …
Privacy And Celebrity: An Essay On The Nationalization Of Intimacy, Robert F. Nagel
Privacy And Celebrity: An Essay On The Nationalization Of Intimacy, Robert F. Nagel
University of Richmond Law Review
I start from the rather obvious proposition that in recent years the American public has placed a high value on the right of privacy. This general commitment to privacy was what kept Robert Bork, despite his qualifications, off the Supreme Court, and more recently it was what kept William Clinton, despite his behavior, in the White House. Bork's nomination was a threat to the constitutional right to use contraceptives and to choose abortion, while the impeachment charges against Clinton were a threat to the moral distinction between public political life and private sexual behavior. The power that the idea of …
Change And Continuity On The Supreme Court: Conversations With Justice Harry A. Blackmun, Philippa Strum
Change And Continuity On The Supreme Court: Conversations With Justice Harry A. Blackmun, Philippa Strum
University of Richmond Law Review
Justice Harry A. Blackmun used to enjoy telling a story about Supreme Court conferences during the Court's 1970 term, his first on the Court. Warren Burger was ChiefJustice; Hugo Black was the most senior Justice. Court protocol, of course, is that the Chief Justice begins the discussion of each case, the most senior Justice speaks second, and the floor goes in turn to each of the other Justices according to descending seniority. Chief Justice Burger would present a case by laying out the issues involved as he saw them and the decision he believed the Court should reach. Then he …
Comparing Alternative Approaches About Congress's Role In Constitutional Law, Charles Tiefer
Comparing Alternative Approaches About Congress's Role In Constitutional Law, Charles Tiefer
University of Richmond Law Review
Mark Tushnet's Taking the ConstitutionAway from the Courts presents many aspects of the theme expressed in its title. I find most interesting the aspect concerning Congress's role in constitutional law. I like this aspect because I spent almost two decades working on constitutional law in Congress, principally as the House of Representatives' Solicitor and Deputy General Counsel representing the House of Representatives in countless constitutional controversies, and I have written a good deal about it. Tushnet provides us with an alternative perspective from which we can view Congress both during that time and since. Tushnet's book is kind enough to …
Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins
Reanimator: Mark Tushnet And The Second Coming Of The Imperial Presidency, Neal Devins
University of Richmond Law Review
A world without judicial review? Not that long ago-when the Left fought tooth and nail to defend the legacy ofthe Warren and (much of the) Burger Courts-the thought of taking the Constitution away from the courts would have been horrific. Witness, for example, Edward Kennedy's depiction of "Robert Bork's America!' as "a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, [and] rogue police could break down citizens' doors in midnight raids." Bork's sin, of course, was embracing a kind of populist constitutional discourse, that is, the notion that the founders "banked …
Privacy And Celebrity: An Essay On The Nationalization Of Intimacy, Robert F. Nagel
Privacy And Celebrity: An Essay On The Nationalization Of Intimacy, Robert F. Nagel
University of Richmond Law Review
I start from the rather obvious proposition that in recent years the American public has placed a high value on the right of privacy. This general commitment to privacy was what kept Robert Bork, despite his qualifications, off the Supreme Court, and more recently it was what kept William Clinton, despite his behavior, in the White House. Bork's nomination was a threat to the constitutional right to use contraceptives and to choose abortion, while the impeachment charges against Clinton were a threat to the moral distinction between public political life and private sexual behavior. The power that the idea of …
The Constitution As A Whole: A Partial Political Science Perspective, Mark A. Graber
The Constitution As A Whole: A Partial Political Science Perspective, Mark A. Graber
University of Richmond Law Review
The Bill of Rights: Creationand Reconstruction ("The Bill of Rights")' is a professionally rewarding and disturbing masterpiece. The work is professionally rewarding because Professor Akhil Amar develops a meticulously detailed, historically sophisticated, and largely persuasive account of how the liberties set out in the Bill of Rights were originally understood and the original relationship between the Bill of Rights and the Fourteenth Amendment. This is state of the art legal scholarship that will no doubt influence the way the next generation of constitutional lawyers and historians study fundamental constitutional rights. Professor Amar's book is professionally disturbing in part because, having …
The Concept Of Incorporation, Earl M. Maltz
The Concept Of Incorporation, Earl M. Maltz
University of Richmond Law Review
Akhil Amar's new book is by any standard a major contribution to the literature on the Bill of Rights. Amar skillfully combines historical research and legal analysis to give the reader a variety of fresh, important insights into the role that the first ten amendments have played in the evolution of the American constitutional system. Among the many innovative concepts in the book is Amar's treatment of the question of whether the Fourteenth Amendment was originally understood to incorporate the Bill of Rights. Rejecting the traditional dogmas of both incorporation and anti-incorporation theorists, he proposes a new theory-"refined incorporationism"-which focuses, …
Leaving The Door Ajar: The Supreme Court And Assisted Suicide, Melvin I. Urofsky
Leaving The Door Ajar: The Supreme Court And Assisted Suicide, Melvin I. Urofsky
University of Richmond Law Review
In June, 1997, the Supreme Court ruled that a constitutional right to assisted suicide exists in neither the Due Process nor the Equal Protection Clauses of the Fourteenth Amendment. But while a federal right does not exist, the Court made it quite clear that the states had ample leeway in which to fashion law on this issue; moreover, the concurring opinions of five Justices strongly implied that, should the states enact legislation that would severely limit end-of-life choices, the Supreme Court would revisit the issue. Far from slamming the door shut on assisted suicide, the Court left it more than …
Classifications That Disadvantage Newcomers And The Problem Of Equality, Robert C. Farrell
Classifications That Disadvantage Newcomers And The Problem Of Equality, Robert C. Farrell
University of Richmond Law Review
For those concerned with the substantial fiscal problems of government, we have a solution. The solution is - Newcomers. Newcomers are those who will become part of our community in the future but who are not here yet. Like unidentified holders of a contingent remainder, newcomers are not yet around to vote, to peddle influence, or to protect their turf. Since newcomers are not here to complain, now is the time to shift burdens onto their shoulders. Make them pay a larger share of taxes. Assign to them a smaller share of government largesse. Thanks to disarray in American policy …
Judiciary: Know Thy Place, Thomas L. Jipping
Judiciary: Know Thy Place, Thomas L. Jipping
University of Richmond Law Review
Alexander Hamilton wrote in The Federalist No.78 that the judiciary "has no influence over ... the purse."' Yet in Missouri v. Jenkins, the Supreme Court approved indirect judicial taxation. Hamilton wrote that the judiciary "will always be the least dangerous" and "beyond comparison the weakest" branch of government. Yet in Roe v. Wade, the Supreme Court created out of nothing a right to choose abortion, invalidated the abortion laws of all fifty states developed over more than a century, and shut millions of Americans out of the process of developing public policy on this important political issue. Hamilton wrote that …
In Defense Of A Principled Judiciary, Edward E. Mcateer
In Defense Of A Principled Judiciary, Edward E. Mcateer
University of Richmond Law Review
For decades, the justices themselves undermined the honor which ought to be afforded the third branch of the federal government as they regularly exceeded the proper, limited but vitally important role they ought to play. October term after October term, the justices acted as a permanent constitutional convention, disrupting legislative accommodations and settled precedent with regularity.
Balancing The Federal Judiciary, Anne Bryant
Balancing The Federal Judiciary, Anne Bryant
University of Richmond Law Review
Since the American Association of University Women first published the associational brief "Balancing the Federal Judiciary" in 1988, two new Associate Justices (David Souter and Clarence Thomas) have joined the Supreme Court. The Court has continued to chip away at the rights of women and minorities, with damaging decisions in areas such as reproductive rights (e.g., Webster v. Reproductive Health Services) and employment discrimination(e.g., Wards Cove Packing Company v. Atonio). With a conservative majority in place on the Supreme Court until well into the next century and Reagan and Bush appointees comprising more than half of the nation's federal judges, …
A Social-Conservative Comment On The New Supreme Court, Gary L. Bauer
A Social-Conservative Comment On The New Supreme Court, Gary L. Bauer
University of Richmond Law Review
I recall seeing a column, not long ago, which referred to the Supreme Court as increasingly "a right-wing playground." Liberal groups may be able to raise funds off this impression, but if conservatives rely on it, they are in for a rude awakening when the gavel falls.
Conservative Supreme Court: Its Impact On Traditional Values, Donald E. Wildman, Benjamin W. Bull
Conservative Supreme Court: Its Impact On Traditional Values, Donald E. Wildman, Benjamin W. Bull
University of Richmond Law Review
Most court watchers agree that the changing composition of the Supreme Court will ineluctably favor the interests of traditional values organizations like the American Family Association. The next decade will surely see the Court return to a more balanced approach in line with the preservation of family values. Certainly some will characterize the new Court as more conservative. To the extent that it will emphasize core principles in the Constitution as the bedrock from which it must proceed, it will be conservative. Yet this is simply a return of the Court to its intended function: interpretation and application of law …
The Paradox Of United State Democracy, C. A. Gearty
The Paradox Of United State Democracy, C. A. Gearty
University of Richmond Law Review
This program is about a paradox at the heart of American democracy. We take it for granted that elected officials, like President Bush and members of Congress, run America. In fact, many of the country's most important decisions are taken by nine unelected lawyers accountable to no one. It is a paradox which is increasingly under scrutiny as more and more Americans are coming to question the power of their Supreme Court.
The Discourse Ethics Alternative To Rust V. Sullivan, Gary Charles Leedes
The Discourse Ethics Alternative To Rust V. Sullivan, Gary Charles Leedes
University of Richmond Law Review
Legal theorists in the United States should pay more attention to Jiirgen Habermas. His theory of discourse ethics provides us with an enriched understanding of the term "normative validity." Discourse ethics "is concerned ...with the grounding of normativity . . .; its central focus is the . . . specification of appropriate validation procedures."' Once participants in political discourse agree on validation procedures, they are then in a position to achieve a fully rational consensus about normatively right laws that are in everyone's best interests.
Unborn Child: Can You Be Protected?, Heather M. White
Unborn Child: Can You Be Protected?, Heather M. White
University of Richmond Law Review
Continuing medical advancement in the area of prenatal care' raises the question of when, if ever, the state may intervene in the life of a pregnant woman to protect her unborn child from abuse and neglect. This issue, though troublesome, can no longer be ignored. Since the Supreme Court's decision in Roe v. Wade, giving the pregnant woman the constitutional right to decide whether or not to terminate her pregnancy, there has been abundant controversy over the allowance of state intervention to protect the human fetus. This controversy necessarily entails a discussion as to when and in what manner the …
Of Laws, Men, And Judges, D. Dortch Warriner
Of Laws, Men, And Judges, D. Dortch Warriner
University of Richmond Law Review
This essay was originally delivered by Judge Warriner as a speech on March 19, 1985, at the T.C. Williams School of Law, University of Richmond. Copyright 1985 by D. Dortch Warriner, all rights reserved.
The Virginia Natural Death Act - A Critical Analysis, Janice G. Murphy
The Virginia Natural Death Act - A Critical Analysis, Janice G. Murphy
University of Richmond Law Review
The right to die with dignity is a controversial issue. In the absence of legislative guidance, court intervention is often necessary to protect a patient's right to the privacy of his own body. At the same time, courts must protect the state's interests in the preservation of life, the protection of innocent third parties, the prevention of suicide, and the ethical integrity of the medical profession.
The 1983 Abortion Decisions: Clarification Of The Permissible Limits Of Abortion Regulation, Laura Fox
The 1983 Abortion Decisions: Clarification Of The Permissible Limits Of Abortion Regulation, Laura Fox
University of Richmond Law Review
On June 15, 1983, the United States Supreme Court once again addressed the abortion issue, handing down its decisions in City of Akron v. Akron Center for Reproductive Health, Inc., Planned Parenthood Ass'n v. Ashcroft, and Simopoulos v. Virginia. The 1983 Abortion Decisions were an unequivocal reaffirmation of Roe v. Wade and the principle that a woman has a fundamental right to an abortion. On a higher level of analysis, these decisions are significant because they clarify how the Roe doctrine applies to procedural restrictions on abortion.
In Virto Fertilization: Hope For Childless Couples Breeds Legal Exposure For Physicians, Margaret I. Lane, Susan Cross Bolton, Rose M. Alexander
In Virto Fertilization: Hope For Childless Couples Breeds Legal Exposure For Physicians, Margaret I. Lane, Susan Cross Bolton, Rose M. Alexander
University of Richmond Law Review
The recent successes with in vitro or extracorporeal fertilization ("IVF") in both England" and the United States have led to increased interest in this new medical technique. For a large number of women, IVF represents the most promising opportunity for reproduction. This breakthrough makes it possible for infertile couples to experience for the first time the joys of natural parenthood that fertile or "normal" couples take for granted. Pioneers in the field are therefore to be commended for their work. Unfortunately, like other innovative medical services, the IVF procedures also breed legal concerns which will demand resolution in the not-so-distant …
Physician's Negligence Giving Rise To The Birth Of A Healthy But Unplanned Child: A Summary Of Damages Recoverable By The Parents, Kenneth F. Hardt
Physician's Negligence Giving Rise To The Birth Of A Healthy But Unplanned Child: A Summary Of Damages Recoverable By The Parents, Kenneth F. Hardt
University of Richmond Law Review
The decision to undergo a sterilization operation or an abortion is the result of considering many complex emotional and financial factors. The operation may be sought to avoid potential health risks associated with childbirth, or it may be sought to avoid the financial stress a new child will place on the family unit. Regardless of the rationale underlying the decision, the individual will require medical assistance. In some situations, however, this medical assistance is negligently performed, and the result may be the birth of a healthy but unplanned child.
H. L. V. Matheson: Can Parental Notification Be Required For Minors Seeking Abortions?, Gail Harrington Miller
H. L. V. Matheson: Can Parental Notification Be Required For Minors Seeking Abortions?, Gail Harrington Miller
University of Richmond Law Review
The extent to which a state can constitutionally legislate concerning abortion has been debated and litigated since the Supreme Court rendered its controversial Roe v. Wade decision which recognized that a woman's fundamental right to privacy under the Constitution encompasses the decision whether or not to terminate her pregnancy. The constitutional questions become more complicated when the state regulates a minors access to abortion due to the unique status of female minors. Although such minor's are biologically capable of conception and childbirth, they are also potentially vulnerable and lack maturity in making informed choices regarding critical matters, such as whether …